"Non-Germans" Under the Third Reich (17 page)

However, this “self-restriction” of the state by means of standards set for its future behavior, that is, grants of legal protection, was only “appropriate with regard to any positively constructive forces within the
Volk
. These ought to be able to predict the actions of the state to the greatest possible extent, in order that their own works might be as fruitful as possible.”
¹⁶³

Needless to say, according to this theory all racially desirable forces and energies were manifested in the “positive” forces; and, just as plainly, all non-Aryan subjects of the state (
Staatsangehörige
) were to be excluded from legal protection.
¹⁶⁴
Depending upon the political requirements of the moment, therefore, such persons could “be granted” the benefits of German law in graduated form, that is, partially (inferior legal status); alternatively, they could be barred altogether (exclusion from the community of legal rights). For these groups, then, the principle of equality before the law was reinterpreted as proof of extraordinary favor and mercy, of which they had to prove themselves worthy
¹⁶⁵
and in exchange for which those affected even had to pay financial compensation in the form of certain special taxes.
¹⁶⁶

Yet the reduction in or annulment of any and all legal status for unpopular minorities, a characteristic feature of all totalitarian forms of governance, was accomplished less by means of openly decreed special law than, first and foremost, on the authority of
prevailing
law (that is, without revoking the citizenship of German subjects of foreign descent).
¹⁶⁷
In this manner, the practice of special law underwent a never-before-seen process of refinement and improvement, which the following examples may serve to illustrate.

Discrimination against “alien” persons took place on the basis of an interpretation of existing law that is most accurately described by Bernd Rüthers’s term “
unlimited interpretation
.” Such unequal treatment was justified with the excuse that the general principle under which all standards were interpreted in the “National Socialist spirit”
¹⁶⁸
implied
such differentiation
by its very nature
, since inequality based on racial origin was part of the National Socialist program.

This differentiation led, among other things, to the principle of judicial administration that held that every law contained an “unwritten
reservation
,” namely, that its intention could never be to “provide [Jews] with any advantages or benefits or protect them from disadvantages or harm.”
¹⁶⁹
Thus the German Supreme Court, in an opinion handed down in the case of a Jewish attorney who filed suit to obtain an official document, made it clear that the (legally guaranteed) rights of the individual must be set aside where reasons of state security were involved
¹⁷⁰
and that therefore the document could not be issued.

That “unlimited interpretation” would necessarily lead to the abandonment of the very idea of standardized law is proved by the fact that even in the early years of the Third Reich, “enemies of the national community” were discriminated against without the slightest legal foundation. In the realm of criminal justice, doubts were expressed as to whether or not a Jew could actually be said to possess “honor” in the sense required by the laws of slander and libel. The question was not whether he possessed “honor” in the Nazi sense, which only the “racially compatible” national comrade could possess; the discussion, rather, centered around whether he possessed what was termed “
Jewish honor
,” which in the Nazi state could at best only be “recognized and protected to a very limited extent.”
¹⁷¹
There were rulings in civil law that declared radio sets belonging to Jews to be leviable,
¹⁷²
in contradiction to the prevailing practice, which held radio sets to be personal requisites and thus not attachable (sec. 811, no. 1, Code of Civil Procedure); or that considered eviction proceedings brought by Aryan landlords against Jewish tenants to be justified solely on the grounds of the latter’s racial origins.
¹⁷³

Although no legal authority for the policy existed, sexual intercourse between German women and undesirable “persons of foreign race” (Negroes and others) could lead to the expulsion from the Reich of the colored partner, on the grounds that such relations contradicted “the views on the preservation of the purity of the German race,” the dictates of “morality,” and the “security of the Reich.”
¹⁷⁴
This exactly corresponded to the line propounded by Nazi ideologues such as Alfred Rosenberg, who had called for such relationships to be placed under the severest possible sanctions.
¹⁷⁵
Discrimination against Gypsies of German nationality, too, was common from an early date, also without basis in law, although the administrative courts had plainly ruled that German Gypsies too enjoyed legal protection.
¹⁷⁶

Nevertheless, the physical annihilation of “alien” persons could not be justified by any legal standards, not even those of the National Socialists, and was therefore outside the administrative purview. Shortly before the commencement of the “Final Solution,” therefore, German victims of National Socialist persecution were stripped of their citizenship upon “crossing the Reich frontiers”—that is, upon being deported
¹⁷⁷
—so that, in the contemporary view, it could in all honesty be maintained that no German citizens died in the extermination camps, but only “stateless” “alien” persons.

d. Targets for the Implementation of
Völkisch
Inequality

aa. Jews

The Jews were the primary targets of exploitation by the principle of
völkisch
inequality. National Socialist propaganda was in this regard able to tie into the virulent economic, political, and cultural-psychological anti-Semitism of the Kaiserreich and the Weimar period,
¹⁷⁸
now putting the main emphasis on the racial factor. Since, however, there existed no clear definition of the term
Jew
, either from an anthropological or a cultural standpoint, the practical solution was simply to declare membership in the Jewish religion to be the relevant criterion,
¹⁷⁹
thus focusing on that feature which is perhaps one of the deepest roots of anti-Semitism.
¹⁸⁰
This departure from the pure doctrine of the racial principle was justified by the Reich internal administration in a circular of November 26, 1935, with the hair-splitting argument that “fundamentally, the decisive criterion is not membership in the Jewish
religion
, but in the Jewish
race
.” “In order to avoid problems of argumentation and proof,” said the same circular, it was, “however, expressly determined that a grandparent who belonged to the Jewish religion is held, without further ado, to be a member of the Jewish race”; counterevidence was inadmissible.
¹⁸¹
But the relevant literature continued to cling to the concept of race. The nature of the Jew was seen as being founded upon his “unfavorable and disharmonious,” “extra-European” racial makeup, a tenet that was promoted above all by the so-called racial anthropologists
¹⁸²
and the racial policymakers in the Reich leadership of the NSDAP and its associated organizations, by means of preposterous scientific theories.
¹⁸³
The race experts in the Reich Ministry of the Interior, who in any case saw race mixing as the most harmful thing of all (“race bastards” are “characters torn by inner conflicts”) and the Jewish “race mixture” more than any other as the most unfavorable imaginable form of race mixture,
¹⁸⁴
also subscribed to this belief. Here, too, it is impossible not to recognize the continuity of pre-1933 anti-Semitic traditions.

All of the negative physical and psychological characteristics now ascribed to the Jew had been marked out in advance in anti-Semitic literature. Every cliché of the National Socialist period had been current for many years (race mixture resulted in psychological conflictedness; owing to his “foreignness,” the Jew could not be truly “creative”; the “foreign” naturally and necessarily turned into “opposition,” to “hate”; a plain solution could only bring about a “plain separation of the nations,” and so forth).
¹⁸⁵
Now that anti-Semitism had become state doctrine, such racial ideas were believed even more readily and were further refined, the more so as the negative characteristics of the Jew (“small stature,” “shifty eyes,” “Jewish nose,” and so on) had long been considered “scientifically” proven.
¹⁸⁶
But whereas the “scientific” anti-Semitic literature prior to 1933 had admitted, at least in part, that it labored under a total lack of certain historical knowledge and confined itself largely to speculative arguments,
¹⁸⁷
much was now coarsened and falsified and always presented as if it were irrefutable scientific truth. Whereas in the past the characteristic feature of the Jew was not, or not solely, seen in his racial peculiarity but in his “consciousness of type” (“blood consciousness”),
¹⁸⁸
it now lay in his racial distinctness, which was seen as representing a “particularly unfavorable” admixture.
¹⁸⁹

Hitler himself, as a matter of fact, only repeated time and again the same widespread clichés and commonplaces.
¹⁹⁰
For him, the “Jewish essence” consisted quite simply in the fact that the Jews were “Asiatics” and therefore “inferior.”
¹⁹¹
In his book
Mein Kampf
, which perhaps only a handful of contemporaries had read, much less taken seriously,
¹⁹²
he emphasizes that Jewry, too, was a people with particular racial characteristics, a fact that the term
religion
only served to obscure, since the Jewish religion’s primary function was to preserve the race;
¹⁹³
but he failed to say what exactly these characteristics might be. In the final analysis, the term
Jew
was, in the eyes of the Nazi leadership, not an anthropological or cultural one but fundamentally a
concept of political expediency
.
¹⁹⁴
The political leadership never tired of repeating that this concept was the polar opposite of the “German essence.” The “Jewish” is seen as the quintessence of all bad qualities (“naked egoism,” “incapability” of creating a culture, “parasitic way of life,” “mendacity,” “depravity,” etc.), which were set against the good qualities of the “Aryan” (“idealism,” “boundless honesty,” “cleanliness,” etc.).
¹⁹⁵
The dichotomous pairing of “idealism” and “egoism,” “dutifulness” and “parasitic way of life” and their transference onto the relationship between non-Jews and Jews are not only to be found in Hitler and Nazi propaganda but are also tirelessly repeated in the judicial literature
¹⁹⁶
and in administrative proceedings; they are echoed particularly obtusely by the top jurists in the Reich administration. Historical reminiscences crop up: the Aryan is substituted for Teutonic or Germanic man. Only the Teuton, that is, the Germanic or Nordic man, has the will to perform his duty and to sacrifice for the “community” and the ability to “regard as freedom” his obligations to the national community.
¹⁹⁷
The Jews, in contrast, since they are lacking in both the sense of sacrifice and idealism, are not merely a particularly “disharmonious” race but a thoroughly “inferior” one as well.
¹⁹⁸

The essence of this radical anti-Semitism, however, notwithstanding its constant references to Germanic or Teutonic man, was that it by no means limited itself to the conditions in Germany; rather, it was abstract, ahistorical, and universal. To be sure, in order to “prove” the destructive and parasitic nature of the Jews within whatever “host people” they afflicted, Hitler and his imitators were wont to describe the “life cycle” of the Jew in broad historical strokes, from the nomadic period to the Middle Ages in Germany to the nineteenth-century assimilation,
¹⁹⁹
illustrating the whole with “scientific findings” that simply equated Jewry with criminality and iniquity of all kinds
²⁰⁰
and calling for its destruction. Yet in his remarks in
Mein Kampf
, and in his other statements as well, Hitler does not talk of a particular country or of particular peoples but only of the Jew as opposite number to the Aryan. The Jew was thus no concrete foe but a fiction, the embodiment of the counterman or antagonist. He was needed as the personification of evil, as the “enemy” principle, the “hereditary criminal,” the symbol of the “plague” or “infection” that threatened the
Volksgemeinschaft
, against whom any measures taken in “self-defense” were justified.
²⁰¹