"Non-Germans" Under the Third Reich (142 page)

241.
The decision of January 27, 1937, is inconspicuously recorded in
Jahrbuch für Entscheidungen für freiwillige Gerichtsbarkeit
, 15:58 ff.

242.
Reich Supreme Court,
JW
(1935): 3377.

243.
See, for example, the decree of the Reich minister of finance on “special treatment in fiscal matters” for Jews of February 10, 1940 (
RStBl.
265); directive no. 4 of the commissioner general for allocation of labor on the procurement, welfare, accommodation, feeding, and treatment of foreign workers, dated May 7, 1942, 5: “Sonderbehandlung einzelner Gruppen von ausländischen Arbeitskräften” (quoted in
Handbuch für die Dienststellen des Generalbevollmächtigten
[1944], 79 ff.); for more details see Harry von Rosen–von Hoevel, “Das Polenstatut,” (1942), 109 ff. (The author was
Oberregierungsrat
[ORR] in the Reich Ministry of the Interior).

244.
Cf., for example, circulars of the RFSSuChddtPol, in Nuremberg doc., NO-1532, 1542, 5132, 5126, 1389, 4634, 5277. For a full account of the use of the term
special treatment
to mean execution, see Auerbach, “Der Begriff ‘Sonderbehandlung’ im Sprachgebrauch der SS,”
Gutachten des IfZ
, München, 2 (1960): 182 ff.

245.
Cf. Hitler, conversation with Rauschning, spring 1933, Rauschning,
Gespräche mit Hitler
, 52 f.: The Catholic Church has received only a stay of execution; its time is up. If Rome wants “to get into a fight,” he would not make “martyrs out of priests” “but criminals,” “plain criminals.” If that isn’t enough, “I will make them into figures of ridicule, of scorn … and if that makes the good citizens’ hair stand on end, so much the better…. The young people will accept it—the young and the
Volk
. I can happily do without the rest of them.”

246.
W. Hamel, in Hans Frank,
Deutsches Verwaltungsrecht
(1937), 387.

247.
Forsthoff,
Der totale Staat
, 39 ff.

248.
Sondergericht, Hamburg,
DRiZ
(1935), no. 553.

249.
RGBl.
I 83.

250.
Hamel, in Frank,
Deutsches Verwaltungsrecht
, 386 f.

251.
Ibid., 387.

252.
MinbliV
(1933): 233.

253.
The OVG ascertained in 1935 that, following the issue of the order of February 28, 1933, the police had been restricted to simply responding in the event of danger to themselves within the meaning of sec. 14, and that a police instruction that went beyond this—in the absence of any specific legal justification—would be in contravention of sec. 15, Law of Police Administration, and therefore invalid (
RVerwBl.
[1935]: 923).

254.
Württemberg State (Superior) Administrative Court,
DVBl
. (1936): 385.

255.
Reich Supreme Labor Court,
JW
(1935): 379.

256.
Prussian Supreme Court, Berlin, “Rechtsprechung,” supplement to
Deutsche Richterzeitung
(1935), no. 624; similarly, Reich Supreme Court,
JW
(1934): 76; see, further, Fraenkel,
Der Doppelstaat
, 43 ff.

257.
For further details, see Fraenkel,
Der Doppelstaat
, 43 ff., with numerous examples.

258.
DJ
(1934): 64.

259.
State Superior Court, Munich, November 4, 1937, quoted in Fraenkel,
Der Doppelstaat
, 60, my emphasis.

260.
Judgment of March 15, 1935, quoted in
JW
(1935): 2989.

261.
Baden State (Superior) Administrative Court,
Badische Verwaltungs Zeitschrift
(1938): 96 ff.

262.
State Superior Court, Brunswick, HRR (1936), no. 98.

263.
Prussian Supreme Court, Berlin,
RVerwBl.
(1936): 62, my emphasis.

264.
DJ
(1935): 1831 f., emphasis mine. The pastor, a member of the Confessing Church (
Bekennende Kirche
), had given his confirmation class a letter for their parents that spoke out against the German Christians (
Deutsche Christen
). As a result, he had been prosecuted for contravening an order of the responsible
Oberpräsident
on the conducting of “immaterial arguments in ecclesiastical controversy” but had been found not guilty by the Court of Lay Assessors. The Prussian Supreme Court, Berlin, quashed this verdict and pronounced a sentence.

265.
Reich Supreme Court,
Deutsches Strafrecht
(1936): 429.

266.
Verdict of the State Superior Court, Munich, January 27, 1937,
Jahrbuch für Entscheidungen der freiwilligen Gerichtsbarkeit
, 15:58 ff.; the verdict confirms that the name of a committee member of the Cab Owners’ Cooperative could be deleted from the association’s register at the behest of the police: “The constitutional rulings listed in the order [of February 28, 1933] and the statutory regulations specified by sec. 1, subpar. 2, of same have effectively been stripped of their legal significance in favor of the police, affecting everybody concerned…. In that sense, legal rights … in dealings with the police have been abolished…. It is of no relevance whether it is an economic association, particularly a commercially registered one, for example a limited company or similar …”

267.
For further details, see part 2, section 1, A, excursus.

268.
Hamel, “Die Polizei im neuen Reich” (1935), 414; Hamel, in Frank,
Deutsches Verwaltungsrecht
, 394, 395 n. 25.

269.
See, for example, the July 14, 1933, Law on the Revocation of Naturalization and Forfeiture of Citizenship,
RGBl.
I 480.

270.
Decree of March 21, 1933 (
RGBl.
I 134), on the Granting of Impunity, which granted same on the basis of art. 48, par. 2, WRV, for all criminal acts that predated the order and that were committed “in the struggle for the national awakening of the German people, its preparation, or in the struggle for the native soil.”

271.
Bühler and Frank, “Nationalsozialistische Strafrechtspolitik” (1939).

272.
Schmitt,
Politische Theologie
(1922), 13.

273.
Cf. Fraenkel,
Der Doppelstaat
, 51, 187 f.; aptly citing the judgment of the Supreme Court, he points out that it was not really a question of martial law but rather of a state of emergency owing to the lack of binding legal rules.

274.
Wolf, “Das Rechtsideal des nationalsozialistischen Staates,” 360 f. Although everybody with a “human countenance” who lives within the scope of German law has the right to legal protection, the “allocation and exercise of rights” must depend on the person’s “legal status, which is exclusively endowed by membership in the
Volksgemeinschaft
[national community] and its essential elements … legal status cannot therefore be enjoyed by those of another race…. The guest residents (
Volksgäste
) who do not enjoy legal status include those of alien racial origin and foreigners … their legal position … in contrast to that of the legal status of the
Volksgenosse
—can be termed a
Rechtsschutzgenossenschaft
[community of those who enjoy the benefits of the law]. [It] is accorded as long as the
Volksgast
complies with the rules, customs, and manners of the host nation and in no way acts against the vital interests of the host nation”; cf. also sec. 1,
AuslPolVO
(Police Decree on Foreigners) of August 22, 1938 (
RGBl.
I 1053): “Residence in the territory of the Reich is permitted to foreigners whose demeanor and purpose of stay … give some surety that they are worthy of the hospitality accorded to them.”

275.
Reich Supreme Court of June 27, 1936,
JW
(1936): 2529 ff.

276.
Reich Ministry of the Interior draft of the Law on Aliens to the Community (BA R 22/4428), which failed to become law only because of the outbreak of war.

277.
Nicolai,
Grundlagen der kommenden Verfassung
, 87 f. The new constitution must be free of the sort of “mendacious phrases” that characterize the basic constitutional rights (
Grundrechte
). “Even the earlier one was no more than a set of
guidelines
for legislation.” The constitution had to be “honest.” “There is only one basic right: that of right itself.”

278.
Cf., among many others, ibid; Nicolai was a head of department in the Reich Ministry of the Interior from 1933 to 1936. In the book, which appeared before the seizure of power, he says among other things: In the
völkisch
state there could only be rights for those who have done their duty; the status of
Staatsbürger = Reichsbürger
(citizen) should be reserved for those who have served in the forces or done labor service. Accordingly, those who could not be citizens included minors, invalids, “non-Germans.” Women too would be excluded from citizenship—the grounds given revealing the author’s complete lack of historical knowledge: “The fact that, as a rule, women cannot acquire citizenship comes about of its own accord because of the link with military service … and the Germanic character of our
Volk
… the feminism that is apparent in recent legislation, the morbid clamor for ‘the emancipation of women’ is a phenomenon of degeneracy of the most disquieting sort and contradicts the high esteem that, in the Nordic way of thinking, men should accord to women. For this is expressed in the principle that women should not be misused in professional or public life or enter into unbridled competition with men. The ‘Amazon’ is no German ideal but—significantly—one that is at home in Asia.”

279.
Ibid., 20–22; Nicolai clearly delineates the process: Reich citizenship is more than simple nationality (60 f.). Only Germans could be Reich citizens. Being a German is something that is determined by race, by origin, independently of language, nationality, religion: decisive is only the “German origin.” The new constitution should have a corresponding provision (Nuremberg laws). There are other “aliens” (
Fremde
) who are also not of German nationality. They will have to reckon with the “law of the future.” This group of “aliens” has “nothing to do with us legally.” “Aliens who for the time being hold German citizenship will keep it but will not enjoy the rights of citizenship, though they are subject to the state’s authority. The state would only act on their behalf where this did not conflict with German interests.” The legislation (on Reich citizenship) must be followed by “legislation on aliens.” This clearly foreshadows the future Jewish legislation, beginning with the classification and registration of “alien people” (
Artfremden
). (“In practice we will differentiate three groups: the Jews, the Poles, and the other aliens”), through the decree of “racial protection legislation,” to “protect the German people from further bastardization.”

280.
For further details, see “Diensttagebuch,” ed. Präg and Jacobmeyer, introduction, 7.

281.
BA R 22/4219; R 18/11 and 12.

282.
BA R 22/204 (also reproduced in Sauer,
Das Reichsjustizministerium
[1939], 7, 54 ff.). According to this account, the Reich Ministry of Justice had three departments in 1933 and six in 1938. The departments—to give them their brief titles—were (1) Organization, Administration, and Personnel, (2) Criminal Legislation and Execution of Sentence, (3) Implementation of Criminal Law, (4) Civil Law including Involvement in Racial Law, (5) Commercial, Economic, and Public Law, (6) Budget. In 1939 one department was added. A new distribution of activities was published through an announcement of the Reich Ministry of Justice of May 8, 1942 (
DJ
[1942]: 328). For an account of the structure of the Reich Ministry of Justice and the organization of its activities, see also the general documentation plan of the Reich Ministry of Justice, 1935, in Kluge and Krüger,
Verfassung und Verwaltung
, 425.

Part One. Section 1. I. General Outlines

1.
Fraenkel, in
The Dual State
(1941) (esp. 89 ff.), was the first to draw a conceptual distinction between
prerogative state
and
normative state
, in which the former served to resolve all political issues, including that of the treatment of Jews. It is difficult to situate emergency laws against Jews within this distinction, however, insofar as they had the quality of normative laws: for though formally they belonged to the sphere of the
normative state
, materially they have to be attributed to that of the
prerogative state
since they diverge from the principle of public law. For our discussion the concept of the emergency state as proposed by Franciszek Ryszka in
Pa
stwo i stanu wyj
tkowego
(1964) is more appropriate.