"Non-Germans" Under the Third Reich (5 page)

Illustrations

Illustrations follow page 322.

Statistical survey of the Prussian Ministry of Justice

Criminal court justices with national emblem swastika pin

Reich Minister of Justice Gürtner

Reich Minister of the Interior Frick

Protocol from a court-martial hearing in Posen

Einsatzkommando 3/V guarding Jews in Płonsk

Sentencing by a court-martial

Płonsk, September 1939

Protocol from a court-martial hearing in Zichenau/Schröttersburg

Memorandum from the superior district court judge to the district magistrate, in Posen

Circular decree, government district Łód

Memorandum from Heydrich to Lammers

Draft of an unpromulgated Führer decree

Notation from the Reich Chancellery

Execution of three death sentences

Information sheet of a
Gau
press agency

Report on the shooting of a Jew by the police

Notation on the Germanization of Polish children

Dr. Franz Schlegelberger

The “
Gau
-kings” of the Reichsgaue

Fritz Sauckel

Erich Koch

H. H. Lammers and H. Stuckart

Execution of Polish citizens by German police

Maps are found in appendix 6.

German Administration of Europe, 1942 581

Greater Germany, 1944 581

Introduction

I. The Tense Relations between State Leadership and State Administration in the National Socialist System of Government

On August 1, 1941, in a nocturnal conversation at table in the Wolf’s Lair, Hitler said of the bureaucracy:

People are always asking me to say something in praise of the bureaucracy. I simply can’t do so. Certainly, we have a decent administration, incorruptible, scrupulously precise…. But it is overorganized … ; they don’t look to success, they don’t know how to acknowledge specific responsibility for specific functions; rather, everything is contingent. And then the eternal clinging to positions…. The Wehrmacht provides the highest distinction for one who—acting against orders—salvages a situation by means of his own insight and determination. In the administration, deviating from the regulations always costs you your head…. That is also why they lack the courage for great responsibility.
¹

Later, Hitler expressed in even plainer terms his antipathy toward the administration, the judiciary that supported it,
²
and particularly the central ministerial bureaucracy. The judiciary, he said, should not be permitted to set too many rules, and the ministerial bureaucracy even fewer: “It was necessarily seldom that the Berlin ministries happened to hit upon the right thing in deciding individual cases … the men … in a ministry … were lacking any broadmindedness … [their] life element is thus their petty bureaucrat’s egoism.”
³
For him, therefore, political leadership and the administration were not only to be kept separate; they were necessarily antagonists. The danger was when the administration simultaneously wanted to be the state leadership. That initiated a rivalry “which had already caused the downfall of a whole series of formidable states.”
⁴

This addresses the tense relationship between state leadership and state administration, between politics and the Civil Service, one that is as old as states themselves. On the one hand, the administration is the instrument of the political leadership, having at its disposal the most effective means of carrying out the latter’s will. On the other hand, if the administration does not accept the aims of the political leadership, a discrepancy may arise between political intent and administrative practice. The control of the administration thus becomes an existential question for any political system, since it is the natural opponent of any change; if such control is insufficient, the relationship is reversed, in that the administration forces its will upon the leadership, becoming the dominant factor within the state. In the history of Russia or of other centralist states (France, Spain), the special position of the bureaucracy as a social class with its own ideology is particularly evident. The struggle between political impetus and obstinate countermechanisms almost always ends in favor of the administration. Ultimately, any political system must adapt itself to the pace and stubbornness of its bureaucracy.
⁵

This tense relationship becomes most evident in states with extreme or revolutionary aims, since, unless they are willing to abandon those aims, they are dependent for their very existence upon the quickest possible realization of their objectives by the administration. One could cite the example of the Soviet Union and the states it dominated: its revolutionary aims were crippled, indeed even brought to a standstill, by a lumbering and overly centralized administration;
⁶
however, developments there have not yet been concluded.
⁷
Since 1990, after the collapse of the Soviet Union, one can see that Russia and its former republics are in a state of transition between totalitarian/authoritarian and democratic structures.

One of the best examples of the antagonism between political aims and the judicial-administrative branch is offered by the National Socialist state.
⁸
On the basis of its development, we shall examine whether or not, and in what fashion, the bureaucracy put into practice the aims of the leadership.

II. Law and Administration as Partly Autonomous Powers in the National Socialist System of Government

1. Persistence and Continuity

Although National Socialism has been thoroughly analyzed, both as an overall phenomenon and as it relates to particular fields, there are still no comprehensive studies of the legal structure of the National Socialist regime or of the function of law and administration in the Third Reich. To be sure, the field of law and state administration has also been treated in the older literature, but merely as one among many that were suppressed or neutralized by National Socialist tyranny.
¹
In recent years, now that well-founded conclusions are available regarding the National Socialist regime as a whole, and the significance of the administrative bureaucracy as an independent element within the Nazi system has gained an increasing measure of recognition, diverse studies on various aspects of the administration (Civil Service, local government, judiciary, police) and their positions within the Nazi state have begun to appear.
²
The major focus of these studies has been the power struggles between revolutionary forces (Party, police) and the traditional administration and judiciary, the resulting jurisdictional confusion, and the gradual overshadowing and corruption of the state organization by a multiplicity of extralegislative, state, and semistate offices derived solely from the power of the Führer.

In contrast, the evaluation of legal and administrative praxis from a systemimmanent point of view, that is, on the basis of the judicial-administrative system of norms, has only just begun.
³
True, we have not a few investigations concerning law and administration in the Third Reich. Among them, however, one finds only a few dogmatic studies
⁴
and a mere handful of isolated works that demonstrate the firm integration of the judiciary and its leading representatives in the National Socialist state.
⁵
The majority take the form of descriptive collections of facts and reports on legal developments or the evolution of the legal professions, or of representations of an apologetic nature, a type that, up to the eighties, continued to appear.
⁶
These studies are often notable for their failure to establish the systematic or structural aspects of their chosen subjects. They are strongly influenced by contemporary research; as a result, legal history appears as a virtually uninterrupted series of illegal interventions by National Socialist tyranny. The main focus of these studies, too, is the dominance of the new revolutionary powers over the legal and judicial sector, a dominance whose destructive influences, embodied in the new powers represented by Party, SS, and police, are seen as having corrupted the law and, despite numerous attempts to reverse direction, as having brought about the paralysis or the downfall of the traditional order.
⁷

This, however, does not do justice to the actual circumstances. As much as the normality of everyday law seemed to recede before the exceptional phenomena of the Nazi regime, the administrative and legal systems still managed, by and large, to preserve their essential structures. One of the tasks of this study is thus to show the differing extent to which the various areas of administration and law were influenced and infiltrated by the extraordinary powers of totalitarianism. This infiltration met with particular difficulty in those branches of the administration that possessed a long and established tradition and that had developed a strong sense of cohesiveness. There the interference of the National Socialists was essentially limited only in kind, leaving the traditional organization and structure of the administrative apparatus largely undisturbed.
⁸
In the postwar period, this continuity of the state administration as an institution has frequently been brought up in connection with the question of the decline of the professional Civil Service in the Third Reich.
⁹
Above all, the ministerial bureaucracy of the Reich authorities in Berlin constituted a relatively closed circle, which from time immemorial had been accustomed to recruiting itself from among its own and was little influenced by the new regime. Not for nothing were so many complaints constantly directed by the Nazi leadership against the central administration in Berlin, about the members of which Hitler was in doubt as to whether they ever “happened to hit upon the right thing.”
¹⁰

Faced with such opposition, the new “political accountability” desired by the National Socialist leadership, one that would blindly carry out its every whim, could not be developed to the degree intended. An administration run by “active militant National Socialists” such as that envisioned and (at least in outline) realized by the Party leadership was in fact a contradiction in terms, since it was at the same time to have operated “nonbureaucratically,” that is, without fixed norms and jurisdictional restrictions. It ultimately foundered because of the respective Party functionaries themselves, who generally lacked appropriate experience and whose own ineptitude was really what rendered them incapable of establishing a new, exclusively National Socialist administration.

Thus it is impossible to maintain the thesis, set forth in earlier studies, that the bureaucracy was totally dominated by political special powers or steeped in constant power struggle or antagonism. A further contribution to the stability of the administration was the paradoxical circumstance that, although theoretically the Führer state was ruled exclusively by the will of one man and everything, from top to bottom, was planned down to the smallest detail, the administration nevertheless enjoyed greater authority than even before. To this extent one must be somewhat wary of the frequently expressed premise that the state as a whole was shattered and enslaved by the National Socialist “Führer principle.” For the emphasis on the personality of the leader and on personal responsibility, in conjunction with the removal of any parliamentary or judicial checks, reflected the glory of the power of the Führer upon anyone occupying a position of authority. Moreover, the very fact that the Führer principle was tailored to fit only one leader, who could not possibly manage every agency himself, necessarily meant a certain enhancement of the powers of the bureaucratic administration. The latter’s importance was even further reinforced when the legislative responsibilities invested in the Reichstag (the German parliament) were de facto eliminated and the
right to make regulations
was granted also to the Reich government;
¹¹
owing to the introduction of the Führer principle, the latter were now “not actually the supreme heads of the administration … [but] their range of activity and thus also their responsibility … [were] greater than ever.”
¹²
Thanks to this initial situation, striking force (
Schlagkraft
) and efficiency, the twin ideals of any authoritarian administration, became the supreme principle of all administrative action; for the individual citizen, this meant the de facto abolition of all civil liberties, since they merely “interfered with” the administrative process; and a bureaucracy whose supervision has been removed can hardly resist the temptation to expand its own discretionary freedom until it runs the risk of abusing its powers.
¹³
Finally, the Nazi system increasingly replaced precise casuistic definitions of civil and criminal offenses with blanket clauses, and the state took upon itself ever more politically colored obligations, so that the scope of state activity grew in purely quantitative terms as well. All these factors meant that the administrative bureaucracy became invested with a discretionary latitude that was open to any and all politicization; the content and limitations of the politicization could be arbitrarily set by itself, that is, by the heads of the administration with the aid of their power to promulgate guidelines.
¹⁴
How far this latitude went was ultimately in the hands of the apparatus, namely, the department heads.