"Non-Germans" Under the Third Reich (21 page)

The present study describes the most important case in which the principle of special law was applied, the treatment under special law of “non-German” persons, since research here is not restricted to plans and speculations but can fall back on a coherent system of actually enacted measures and laws. For the experimental field in the principle of special law was primarily the category of “non-Germans”; whereas the expansion of this principle to the extent just described, and as desired by the Nazi leadership, to include all other unpopular persons or groups, never took effect owing to the short duration of the Third Reich. In this respect, special law as used against “non-Germans” serves as a model for the kind of persecutional measures otherwise practiced by the Nazi state.

e. Territorial Differences

In examining the special law used against “non-Germans,” however, one comes upon significant regional differences. As a rough classification, there is an essential difference between the conditions in the Reich itself and those in the territories annexed or occupied by Germany. Where the latter are concerned, the most important caesura occurs between the occupied territories in Eastern Europe and the remaining parts of occupied Europe. Whereas the inhabitants of the occupied areas of western and northern Europe were treated by the Nazi leadership as political, not as racial, enemies, the Eastern European peoples, as already discussed, and particularly the Poles, were considered the very incarnation of inferior “non-Germans.” And although here, too, the motivation was first and foremost political, the National Socialist propaganda machine made the Eastern Europeans appear as political and racial foes of the Nazi regime whose sole function was not only to serve German economic interests but also, and at all costs, to be (in part) exterminated and (in part) reduced to the lowest possible legal and social status.

In the following portrayal, therefore, I have chosen to divide the material along regional lines, in order to depict the development of special laws in its varying degrees of intensity. As far as the conditions in the area of the so-called Altreich (within the borders of 1937) are concerned, the first uncertain efforts at putting special law into effect were not altogether crowned with the success coveted by the political leadership, largely because of the constitutional traditions of the Reich administration, the ponderousness of the various ministerial departments, and the independence of the old, established bureaucracy. Outside the Reich itself, by contrast, in Occupied Eastern Europe, the obstacles posed by a conventional administration were not an issue; there, the political leadership had a free hand; there dwelt a “non-German” population with regard to which “constitutional inhibitions” could safely be disregarded. These areas therefore became the experimental arena of the “new
völkisch
order” of Europe, or the “parade ground of National Socialism,” as it was more coarsely put by the Gauleiter of the Wartheland, Arthur Greiser. This holds true particularly for the annexed and occupied Polish territories (the Annexed Eastern Territories and the General Government for the occupied Polish territories), which, since they were occupied the longest, offer the best example of the experimental method and the art of the National Socialist policy of special law. Since the principle of special law was an essential component of the Nazi state, those areas may therefore be considered the ideal type of what was to have been the future rule of the Nazis over “non-German” peoples, and more: they are the
ideal type
of a National Socialist polity of graduated rights and obligations (beginning with the lowest level, the “non-Germans” as pariahs, and ending with the highest level, the political leadership corps).

Thanks to this regional comparison, one can see quite plainly how the character of special law as it developed in the occupied Polish territories contrasts with the legal regulations in the Reich, both as regards extent and severity. This should serve to make it clear that the regulations in effect in the Reich were not the normal case of special law, because it was there realized only imperfectly; rather, as will later be observed in detail, it is precisely the extreme regulations in the Polish sector that much better represent the actual character of special law. Thus the Annexed Eastern Territories (the Wartheland) became the model for a Reich administration within the Greater German Reich constructed upon special law, whereas the General Government was organized and cultivated as the model for a colonial administration founded upon special law. The administration of the General Government and the standards it promulgated thus possess exemplary character in the overall context of National Socialist occupation policy: of all the forms of administration in the occupied territories, it represented the purest prototype of the National Socialist politics of violence.
²⁸⁰

Against the thesis that the practices of special law in the Polish territories according to National Socialist ideas were not the exception but rather represented their “normal state,” the objection might be made that these practices in the East were indeed exceptional in character, since prevailing conditions were themselves exceptional on account of the war. This objection will not hold. The war in Poland ended with Poland’s capitulation in October 1939. What was set in place there was not at all a military administration tailored to wartime conditions but rather a civil administration that according to National Socialist ideas was entirely oriented to “normalcy” and to the integration and/or annexation of these territories into the Reich.

In view of the massive amount of source material, of course, it is impossible to present a complete picture. Just as the aforementioned territories are merely models for the comprehensive nature of special law under the National Socialist regime, at least as it existed in the occupied territories of Eastern Europe, so, in regard to source material, only those territories are treated that are particularly exemplary of the implementation of special law. Such areas would include the fields of internal administration and the judiciary. And even limiting myself to areas, I have had to set certain limits so as not to overextend the framework of the study. Accordingly, only those areas are discussed at length in which the principle of special law had the most far-reaching and drastic effects, such as, for example, the laws governing civil servants, the professions, criminal prosecution, and marriages. However, one must constantly bear in mind that, in principle, the entire Nazi legal system is by nature shot through with and steeped in elements of special law. For the departmentalization and delimitation of the administrative and judicial sectors over against other sectors, I have employed uniform formal criteria, that is, first and foremost, the relevant organizational charts (
Geschäftsverteilungsplan
) of the Reich Ministry of the Interior
²⁸¹
and the Reich Ministry of Justice
²⁸²
and those of the central authorities in the Annexed Eastern Territories and the General Government, as the basis for study. One pivotal question was whether or not the police were to be seen within this framework as part of the internal administration. If one applies the above-mentioned formal criteria, this question would have to be negated, since as early as 1936 the police had been placed under Himmler as
Reichsführer
-SS and so were removed from the jurisdiction of the Reich minister of the interior. Therefore, the police are not treated as part of the internal administration. Material having to do with extraneous departments (labor, revenues, commercial and cultural administration), which would require monographs of their own, has nonetheless been taken into account insofar as it involves areas of discrimination that bear a close formal or material relationship to internal administration or the judiciary (for instance, labor law as it relates to professional codes) or wherever it was necessary for the sake of completeness. The discussion of the practice of special law in the areas of internal administration and the judiciary makes it plain that, as imperfect and immature as the plans of the National Socialist leadership and their literal execution may have been, a system was nonetheless put in place that, in its legal-technical coherence, may well stand as an example of the overall method of rule of (National Socialist) totalitarian administration.

PART ONE

The Principle of Special Law against “Non-Germans” in the Area of Public Law (General and Internal Administration with Supplementary Areas)

Section One

The Implementation of
Völkisch
Inequality in the Altreich

I. General Outlines

In the process of implementing the principle of
völkisch
inequality in the area of constitutional law, the essential features of the legal policies of the new regime came into particularly sharp focus: first the regime provoked, promoted, and tolerated an unlawful state of emergency marked by tyranny and injustice; then it retroactively legalized that condition by means of legislative provisions; the legal norms were always catching up with the facts, as a result, and one-time, exceptional phenomena found their way retroactively into common “law.” Besides the propagandistic advantages of such a procedure, the Nazi leaders also had a sure instinct for incorporating into their deliberations the traditional German legal thinking, where law was equated with legal principle and was never seen as an act of legalized injustice but always an act of legal security. Using this approach, they created a system of emergency regulations that ate their way into the domain of
common
law, thus forfeiting the color of emergency statutes standing outside of established law.
¹
If it appeared in the
Reich Law Gazette (RGBl.)
so went the thinking, it could not be unjust.

The early stage of the implementation of special law is the best example for the way in which tyranny became the norm and centrally controlled “spontaneous” actions served to justify radical measures that were already on the agenda. In the very first weeks after the Nazi seizure of power, countless sudden and savage acts of violence, such as boycotts, abuse, and arrests, were committed under the leadership of the local NSDAP and the SA against “non-Germans.” Targeted were political opponents, Jewish persons in the Civil Service (judges, public prosecutors, and university professors), Jewish attorneys-at-law, Jewish shops and synagogues,
²
and Polish citizens.
³
These actions, especially the central boycott that the Party leadership of the NSDAP ordered to take place on April 1, 1933,
⁴
against “Jewish shops, Jewish goods, Jewish physicians, and Jewish attorneys-at-law” and which was “lawfully” organized by so-called municipal boycott committees
⁵
could not help being temporary in nature, largely because of the manifestly disadvantageous consequences in terms of foreign policy and foreign trade that it brought upon the still uncertain regime; a second reason was that the popularization of the boycott measures by the National Socialist propaganda machine did not achieve the success desired by the NSDAP leadership.
⁶
Nevertheless, they created so much alarm, uncertainty, and confusion that the situation fairly cried out for legal controls, which were then embraced by the administration and broad segments of the population, even including the affected persons themselves, as the restoration of order and legal security.

What the administrative authorities whose job it was to prepare and promulgate such emergency regulations overlooked, condoned, or indeed even welcomed was that this emergency legislation by no means restored the status quo ante; rather, it undermined the principle of equality before the law and opened the door to much more effective discrimination against “non-Germans” or other unpopular persons than any so-called spontaneous actions from below. In many cases, too, the establishment of special law was explicitly hailed, and the departure from general equality made easy, because even in the highest ranks of the Reich administration there were those who, in complete ignorance of the nature of totalitarian rule, supposed that the matter would have an end with the legal norms already decreed, and further emergency laws could be prevented.
⁷
Although the constant moral defamation and discrimination practiced against the Jews by the NSDAP continued,
⁸
despite all legal restraints, and spoke in a clear idiom of things to come, they could not or did not wish to recognize that the National Socialist leadership was entirely innocent of legal philosophy, that for the Nazis conventional law at best possessed instrumental value, and that the first provisions adopted under special law were only the prelude to further emergency regulations.

From a terminological standpoint, the following phases (although they overlap at many points, both materially and temporally) may be distinguished in the day-to-day process of putting the principle of
völkisch
inequality into practice via legislation and administrative measures. Of primary concern to the National Socialist legislators was, first of all, the creation of a compliant and submissive instrument for carrying out their aims. As the most important repository of state thinking, the Civil Service thus had to be converted as quickly as possible to National Socialist ideology, that is, purged of political opponents and persons of “foreign race.” In a later phase, the major concern was to
segregate
the “non-Germans” from the Germans constitutionally, to exclude them from the German state polity and thus from the principle of equal rights for all. Once the door was opened to the loss of citizenship or the establishment of different classes of citizen (the Reich Citizenship Law and subsequent regulations), the way was clear for the third step, genuine discrimination in the form of explicit special law. The political aim, meanwhile, as seen from the point of view of the Reich administration, was “Aryanization”—the full-scale dispossession of the Jews with only nominal indemnification.
⁹
Therefore the corresponding legislative measures were aimed at ousting “non-Germans” from professional and economic life (which was justified as being in defense of public interests), robbing them of their reputations and fortunes, and forcing them down to the level of underpaid temporary day laborers and/or turning them into a pariah class (the “social proletariat”)
¹⁰
dependent upon welfare services (to be provided from their own resources).