"Non-Germans" Under the Third Reich (8 page)

The debate over constitutional law was dominated not by rational criteria but by mysticism and emotion-laden catchwords (
feeling, beholding, intuiting,
etc.), as the following survey illustrates.

aa. Outlines of the “
Völkisch
Constitution”

Put in the place of established constitutional categories was a murky haze of core principles, guidelines, blanket clauses, and vague postulates.
³⁶
Thus, according to the new doctrine, the Führer’s authority could only be grasped “intuitively,” since all constitutional concepts “foundered” on this phenomenon;
³⁷
any legal limitation was declared impossible,
³⁸
since this would have contradicted the “breadth and depth” of the “Führer concept.”
³⁹
Just as the outward splendor and purposefulness of National Socialist policies resonated with the general yearning for unity, discipline, and security,
⁴⁰
the new concept of the Führer met the needs of a jurisprudence that was weary of “abstract” concepts and systems and sought to orient itself to the “concrete” “values of the community.”
⁴¹
The new values of the Führer constitution, therefore, remained obscure, mysterious, shrouded by the squalls of History, veiled by their appeal to “Germanic community values” such as “honor, freedom, truthfulness, fidelity, readiness for sacrifice, purity of the blood,”
⁴²
and cloaked by indefinite catchwords (
moral renewal, new spirit,
etc.) set in place of precise definitions.
⁴³
Yet more important than organizational and constitutional changes, it was said, was the “inward change” in the organs of administration and judicature.
⁴⁴
For above all the “basic state laws”
⁴⁵
newly created by National Socialism stood the “unwritten constitution” of the “living order of the people’s community (
Volksgemeinschaft
),”
⁴⁶
the “
völkisch
constitution,” which, as opposed to the “procedural” concepts of democracy, required no standardization.
⁴⁷

This “overall
völkisch
order,” be it noted, is not to be understood as a system of legal concepts, since, owing to its fundamental irrationality, there could be no such thing as a dogmatics of National Socialist jurisprudence. Both academic and practicing jurists generally contented themselves with pillorying the “liberalistic principles” of the Weimar Republic,
⁴⁸
holding its institutions up to ridicule, and underscoring the advantages of a Führer authority freed from “procedural” legal constraints. The result was—in conformity with the aims of the Nazi leadership
⁴⁹
—no less than the categorical denial that legal and moral standards were applicable to the political realm.

The doctrine of the
völkisch
constitution did not exhaust itself in the repetition of empty blanket clauses or polemical attacks on the democratic past of the Weimar Republic; in fact it resulted in a profound redistribution in the relative importance and functions of state and law.

It was taken for granted that, in a societal order in which the Führer principle had been declared the supreme axiom of state action, the state as a legally
circumscribed
institution necessarily occupied the lowest rung in the hierarchy of the “community order.”
⁵⁰
According to the intentions of the Nazi leadership and their experts in jurisprudence, all that was to remain of it was the facade; its essential features—legal guarantees and the system of justice—were stripped of their constitutional meaning.
⁵¹

Not only was the Führer’s authority as such, along with its procedural and substantive unconditionality, adopted without reservation by the jurisprudence community,
⁵²
but, with the stroke of a pen, the obvious conclusions were drawn regarding constitutional institutions as a whole. The principle of separation of powers was declared by National Socialism to have been “overcome”;
⁵³
all constitutional norms were tacitly annulled; the fundamental civic rights were mocked and pilloried as “objective features” of the bourgeois constitution and proclaimed “outdated.”
⁵⁴
The separation between constitution and law, between law and decree, between legal principle and administrative regulation,
⁵⁵
as well as the principle of the hierarchy of standards, were all invalidated, and with them the traditional concept of the law and the principle of lawful administration were set aside.
⁵⁶
The law became merely an “expression of the will of the Führer,”
⁵⁷
and the obligation of the state organs to uphold the law was transformed into the duty to
smoothly carry out
the Führer’s will.

Characteristic of the pseudolegality of the National Socialist system was the way in which
völkisch
constitutional doctrine retained the legal terminology of the liberal state, upon which, without any formal amendment, the content of the new Führer principle was superimposed. The decree promulgated by Reich Minister of Justice Otto Thierack when he took office on August 24, 1942, is a prime example of this seeming continuity, reflecting as it does the barely comprehensible manner in which all principles and ideas were intertwined with National Socialist thinking. It demonstrates how the Führer principle and its destructive consequences became so enmeshed in familiar aims of legal policy and in time-honored legal principles that, superficially at least, any responsible jurist could give his assent:

The administration of justice does not mean the application of a trained understanding [to legal problems] but the ordering of life processes within the
Volk
. I do not wish to see judges whose art consists solely in the more or less sharp-witted application of the statutes on the books to the case before them. Let this be the occupation of legal scholars, from whom the
Volk
expects no judgments. That judge is best … whose rulings embody the sense of justice within the
Volk
. Statutory law is meant to help the judge in this process, but it must not dominate the judge to such an extent that he thereby loses contact with the sense of justice of the
Volk
. Law is life, not the rigid form of a legal idea. The construction of law consists in the true-to-life application of the legal idea, not in the interpretation of dead letters. Real life must not be bent to shape dead letters. Anyone is at liberty to turn to me should he believe that the law forces him to reach a naive and unrealistic ruling. In such a contingency it will be my task to provide whatever law may be required.
⁵⁸

bb. The Führer Principle and State Organization

The Führer principle was, however, not merely a topic that dominated the field of public law doctrine but the basic idea behind the immediate reformation of state institutions. Failing to recognize the totalitarian claims of the Führer principle, the bureaucracy at first concluded that the principle offered an opportunity to restore the “authoritarian administration,” in particular to strengthen and unify the leadership of the Reich administration under the direction of the Reich Ministry of the Interior (unity of administration).
⁵⁹
However, the measures taken by the National Socialists soon put an end to such notions. To be sure, the Führer constitution did guarantee the much-invoked “unity of state leadership.”
⁶⁰
However, this unity referred solely to Hitler as the supreme leader of state and Party. Nothing was further from the minds of the Nazi leadership than strengthening the administration, which in their eyes never did anything but oppose any revolutionary innovations with doubts and delays;
⁶¹
consequently, it was to be atomized and as far as possible excluded from the process of political decision making. Hitler himself kept the bureaucracy at arm’s length, and in so doing already weakened its influence, by setting up the Reich Chancellery as an intermediary that functioned as the coordination point and sole “information and command organ of the head of government,” thus cutting off all direct contact between ministers and the Reich chancellor.
⁶²

A further decisive weakening of the administration was achieved through the destruction of municipal self-administration
⁶³
as well as the coordination (
Gleichschaltung
) of the state (
Länder
) administrations and the annulment of the autonomy of all special authorities, institutions, and public corporations. At the same time, however, it should be noted that the central administration, that is, the departmental bureaucracy of the Reich ministries, in fact experienced a resurgence that was quite at odds with the intentions of the Nazi leadership. For the characteristic features of the Nazi legal system—global mandates, the disappearance of judicial controls, the creation of numerous blanket clauses with virtually unlimited scope, and the ever increasing tendency to assign politically colored tasks to the state—gave the highest Reich authorities a range of action and decision such as they had perhaps not enjoyed since the era of absolutism.
⁶⁴
In their own political fiefdoms, by contrast, they were hard put to defend their positions against the intrusion of numerous new institutions of the Führer state.

These were, above all, the numerous special authorities within or parallel to the Reich administration, whose power was for the most part formulated in blanket clauses and thus was capable of expansive interpretation, in contrast to that of the respective administrative chiefs. Parallel to this, new “Führer” powers
⁶⁵
were called into being, authorities that were not answerable to directives from the administration and indeed were in some cases in a position to issue instructions to it—for example, the office of the Reich Commissar for the Strengthening of German Nationhood (RKF) under Heinrich Himmler.

However, these new “Führer” powers did nothing to strengthen the administration; rather, they represented the most important means used by the Nazi leadership in its long-term attempts to undermine the administration and the bureaucracy,
⁶⁶
to take away or dilute its powers, to multiply offices beyond all measure, and thus to ensure that the will of the Führer or of his chief administrator would be carried out in all cases; for within this jurisdictional chaos of official and semiofficial state agencies (“each one does or omits to do whatever he wants, since nowhere is there a strong central authority in place”),
⁶⁷
in which, by the will of the Nazi leadership, the strongest agency, and thus the strongest and best forces, were supposed to prevail, there was always at least one agency to be found that would execute that will.
⁶⁸
Thus it is understandable that the unlimited power of leadership under the Nazi system offers the easiest point of departure for post-1945 critiques,
⁶⁹
since it was here that the break with constitutional traditions was at its plainest.

cc. The Führer Principle and the Administration of Justice

The absolute Führer principle also made grave incursions into the judicial system, although it, as an independent authority, seemed less immediately threatened by interventions on the part of the National Socialists,
⁷⁰
as the following examples may serve to illustrate.

Although an (oral) agreement is said to have existed by which the rulers pledged not to violate the independence of the judiciary,
⁷¹
in the context of the Führer state this was of course nonsense. The function and organization of the justice system was fundamentally altered, and the Führer principle was introduced into the court constitution as well.
⁷²
To be sure, the judge’s material freedom from interference and his legal obligation to enforce formally enacted law (sec. 1, Judicature Code) were not formally rescinded.
⁷³
However, the new “inner meaning” of material independence was, according to the doctrine of National Socialist legal reformers, unconstrained fervor and “legal interpretation borne by the National Socialist worldview.” This meant that the responsibility of the judge to the “law” was held to endure, even though the Führer principle had brought with it the dissolution of the procedural concept of law. Law, therefore, was not identical with written legislation but rather with the expression of the declared will of the Führer. The administration of justice was no longer synonymous with interpretation of the law but was first and foremost the “search for” and “defense of” the unwritten law that was grounded in the
Volk
.
⁷⁴