"Non-Germans" Under the Third Reich (89 page)

B. Civil Law

I. Main Elements of the Transformation of Civil Law on an Ethnic Basis

Compared with criminal law, civil law was a minor political concern in the Third Reich. The legal ideology in the Nazi period, based as it was on the collectivistic principle of the national community (
Volksgemeinschaft
), regarded civil proceedings with distaste as a “social evil” and rejected the idea of their use as a means of settling conflicts between individuals.
¹
Civil law also lacked the impact that led to incisive changes in legislative procedure, and its precise definitions of offenses and rigid procedural rules rendered it less suitable for ideological manipulation than the value-laden criminal law, with its greater scope for interpretation. A complete revision of the whole fabric of civil law was contemplated in the long term, but it never saw completion.

Influential in matters of both theory and practice, the reformers at the Academy for German Law,
²
with their hazy concepts of community, continued to work on a new national law (
Volksrecht
)
³
on the corporate state (
ständisch
) model in the form of a Code of National Law,
⁴
and as early as 1937 Schlegelberger published a book with the nostalgic title
Abschied vom
BGB (Farewell, Civil Code);
⁵
all this was difficult to reconcile with the body of civil law, with its emphasis on precision; and as the war wore on, the work on comprehensive reform of the Civil Code finally came completely to a halt. The major principles and institutions of the Civil Code (freedom of contract and trade, property, etc.) were thus not amended.
⁶
A number of reforms were effected in certain specific areas, however, partly on account of the war itself,
⁷
partly in order to anchor the ideology of race and community in the most important fields at least (marriage law, inheritance law, law of entail, labor law).
⁸
At the same time there was no way the civil law could remain a repository of the legal principles that had come down from the liberal period, safe from the influence of Nazi legal ideology. However, the transformation came about not by way of spectacular statutory modifications but rather through the practice of “boundless” interpretation of the law by the administration and the courts,
⁹
with “the spirit of National Socialist ideology” as the watchword.
¹⁰
In particular, the numerous general provisions of the Civil Code, such as “public morality” (sec. 138, Civil Code),
¹¹
“good faith” (sec. 242, Civil Code), “immorality” (sec. 826, Civil Code), and so on, which C. Schmitt’s “Five Principles for Legal Practice” expressly subordinated to the Nazi ideology,
¹²
served as a spearhead for the predominant legal dogma, including the “community values” of the Party,
¹³
and were thus, in the expression of the time, a “cuckoo’s egg in the liberal legal nest.”
¹⁴

This process of “boundless interpretation” was based on the maxim of the absolute priority of the authoritarian state and the national community over the interests of the individual. In the words of the literature of the period, it was thus possible that “with a sympathetic approach to the overall ideas of the new state constitution, even typically liberal laws need not be an insurmountable obstacle, but [could] be brought into line with the requirements of the time.”
¹⁵
Furthermore, the basic tenets of the new
Volksrecht
designed to replace the Civil Code, propounded in a great many publications,
¹⁶
placed even greater emphasis on the National Socialist concepts of race and community,
¹⁷
with the result that these ideas became the absolute principle underlying current legal practice. Since, however, the concepts were based exclusively on racist ideas, the inherent principle of unequal treatment of all who were foreign to the
Volksgemeinschaft
(i.e., of a different race) very rapidly infiltrated civil law.
¹⁸
Nor did the process stop there, for the reformers intended that this principle should become the over-riding basis of all civil law; euphemistically designated “corporate state law” (
ständisches Recht
),
¹⁹
its intention was to abolish equality before the law. Significantly, the literature described the new concept as nothing other than a “special order.”
²⁰

II. The Principle of Völkisch Inequality in the Domain of Substantive Law

1. General Principles

The first tenet of this ideology of discriminatory law, from 1933 on, was that Jews and other undesirables should be treated in a different way from Germans, as an expression of “public morality,” that is, of the “sentiments of all right-thinking people.”

Although as a rule the courts refused to admit a general racist proviso covering all legal norms, such that they automatically had to give way whenever they conflicted with Nazi dogma,
¹
unequal treatment was considered permissible, and indeed even obligatory, in the individual case. Strict observance of the law in its concrete application to Jews was thus even considered an error and as such was sharply criticized in the Nazi literature.
²
In such cases the judge had a legal obligation to deliver unequal treatment of the Jewish party to a suit. Thus, a decision of the Berlin District Court of November 7, 1938, stated:

The problem in dispute here cannot be solved by an interpretation of the Protection of Tenants Act. Its significance stretches far beyond the bounds of this legislation. This is not a matter that can be solved by interpreting the Protection of Tenants Act, but a matter of ideology…. The view that every single measure against Jews can only be by order of the government is not correct. If this were the case, no interpretation of the law detrimental to Jews would be possible and Jews would have special protection. It is clear that this is not in the spirit of the matter.
³

The Reich Supreme Court upheld the refusal of a registry officer to issue a birth certificate to a Jewish lawyer on the ground that this right, laid down in section 16, paragraph 2, of the Law on Civil Status, ceased to apply if it conflicted with state security.
⁴
The commentary of the Düsseldorf Labor Court was couched in even more general terms: every statutory rule contained a “tacit proviso” that Jews should under no circumstances obtain a benefit from it; that is to say that the law should operate only to the disadvantage of Jews, never in their favor.
⁵
Noteworthy in this regard is a judgment by the Reich Supreme Court of June 27, 1936, holding that Jewishness was a “legally recognized politico-racial criterion” justifying revocation of a contract.
⁶
As such, the judgment was probably representative of the Supreme Court practice of interpreting established legal norms to the disadvantage of Jewish parties. Some examples of the contestation and nullification of contracts will illustrate the extent to which this acknowledgment of racial discrimination was practiced.

Agreements with Jews were on principle contestable if the Aryan party was unaware that his partner was a Jew. The error concerning membership in the Jewish race was thus considered an error of judgment about an “essential aspect” of the person, according to section 119, Civil Code, which could justify contesting the legality of the business. The characteristics of the individual case were, however, the determining factor. Thus, several municipal courts ruled that contracts of sale between Jewish buyers and Aryan vendors could not automatically be contested on the grounds of an error of judgment under the terms of section 119 of the Civil Code; the courts allowed the action of the Jewish plaintiff.
⁷
But the refusal of an SS man to pay his debt to a Jewish company was upheld and the firm’s action rejected, because National Socialists “fundamentally” refused to enter into a business relationship with Jews, “even if it is not forbidden for them to do so.”
⁸
A teaching contract drawn up in January 1933 between a National Socialist and the Jewish owner of a private school, concerning the preparation of an examination, was deemed a voidable transaction under the terms of section 119.
⁹
Business between a newspaper and “Jews and persons of Jewish ancestry” related to advertising was held not only to be contestable but even null and void on account of “immorality” (sec. 138, Civil Code).
¹⁰
A contract of guarantee between an SS officer and a Jewish creditor was declared contestable on the ground of malicious intent to deceive (sec. 123, Civil Code); deception on the part of the creditor was found not only in the fact that he bore a German instead of a Jewish name but also because he had accompanied the debtor into his SS office.
¹¹

Attempts were also made to further the principle of
völkisch
inequality on the basis of the established law, over and above the confines of the regulations on contestable dealings.

Jewish creditors were not allowed garnishment of salary claims while the debtor was serving at the front, even if his family could afford it.
¹²
The Reich Labor Court recognized patronage of a Jewish store by family members of a public service employee, who was a member of the NSDAP and the SA, as a ground for immediate dismissal, because “the principles” of the NSDAP also applied to “the off-duty conduct” of its members.
¹³
The lack of German ancestry by a partner of a company supplying state departments was, in the view of the Reich Supreme Court, sufficient to justify termination of the contract for important reasons.
¹⁴
The new proprietors of an “Aryanized” Jewish insurance company were permitted to repudiate all insurance contracts with the company without notice, because the agreements on the term of the contracts were not deemed to be effective.
¹⁵
Associations constituted under civil law could, following the resignation of their Jewish board of management, be visited by a state commissioner who was deemed an associate under the terms of section 29, Civil Code (section 29 governs “emergency appointments,” that is, the appointment, at the request of an associate, of a board of management by the court of first instance in the absence of a board) and who could be appointed to the board on his own proposal.
¹⁶
As a commentary on this decision noted, “even typically liberalistic laws are not an obstacle, but can be brought into line with the requirements of the period.”
¹⁷
A similarly “sympathetic” approach will be found in judgments of cases in which the relatives of Jewish deceased persons sued for survivor’s and compensation claims. In the view of the Reich Supreme Court, although claims for widow’s benefits by relatives of Jewish employees were anchored in the law and could not be completely denied, the amount granted could be reduced on grounds of “good faith” (secs. 157, 242, Civil Code), where the reduction, termed “appropriateness” in the legal jargon, depended on whether or not the widow was Jewish.
¹⁸

The concept of
völkisch
inequality was particularly blatant in the field of civil status. In the opintion of some courts, registrars of vital statistics had the right to refuse to undertake official acts to which they were otherwise committed by law. Even before the passage of the Nuremberg Laws on September 15, 1935, “the registrar [was] not obliged to publish the banns of a mixed marriage,”
¹⁹
despite the fact that marriages between Jews and “non-Jews” were not forbidden at the time.

When the registrar was ordered by a lower court to perform the act in accordance with the law,
²⁰
in the absence of any obstacles to the marriage under the terms of sections 1305–15 and 1348 of the Civil Code, the order was quashed by a race-conscious district court following an appeal by the administration,
contralegem
, because the terms of the Civil Code covered only marriages “that by their nature are in harmony with the ideological tenets of our
völkisch
legal system and are thus basically sanctioned by it.”
²¹
Similarly, the supervisory Prussian Supreme Court in Berlin upheld and appeal against a decision of the lower court ordering the registrar to issue an extract from the register of births, because the supervisory authority had to ensure that the registrar did not injure “the public interest”—that is, the Nazi principles of racial discrimination.
²²
The Reich Supreme Court also confirmed that the refusal of a registrar to issue a document to an emigrant was legal, because a regular court could not be expected to decide which administrative measures were necessary for the maintenance of state security.
²³