The Law Under the Swastika (7 page)

The starting point for understanding the “peculiarities” of legal scholarship on the Nazi era is thus a literary scenario in which historians and nonhistorians make statements about historical facts, with many of the nonhistorians having been active as jurists in the years 1933–1945. From a neutral point of view, the critical handling of the sources and the ideal of the greatest possible degree of scholarly objectivity are therefore compromised in a different way than in other fields of historical scholarship.

2. The emotional involvement of authors with their topic is not a problem unique to this field of research, though it surely occurs here with special intensity. National Socialism was not merely one dictatorship among many others, it has left its imprint on the psyche of several generations. If someone writes a book about the Nazi dictatorship, it can be assumed that he or she was in some way “affected” by it. This is as plainly true of émigrés as it is of those “who were there.” And their children and grandchildren, too, cannot escape their own emotions.

However, authors have dealt with their feelings in a variety of ways. Some have expressed them openly, while others have sought to overcome them, allowing them to influence their scholarly work to varying degrees. In some cases, scholars who would have been perfectly suited for work on National Socialist law expressed their emotional relationship by their very silence on “the subject.”

3. Another peculiarity of this field of historical scholarship is the political consequences of National Socialism, consequences that also influence the law that exists today. All those involved in scholarly work on Nazi law have been influenced, willingly or unwillingly, by the division of Germany that was caused by National Socialism and by the political premises, language rules, and tabooed thinking that have been internalized in West Germany and East Germany in different ways. We can take for granted that this has profound effects on how people deal with National Socialism.

An all-German discussion of National Socialism, let alone of the specific topic of National Socialist law, is obviously not taking place. The few legal historians of the former German Democratic Republic who have remained in contact with their western colleagues belong to the older generation, which, like the older generation in western Germany, has studiously avoided the topic.

4. This brings us to the fourth point: the generational problem. Not only does it play a role in the emotional weight that is given to the topic, it also exerts an influence on scholarship that is difficult to grasp and rarely articulated in public. Since many professors themselves are uncomfortable dealing with the Nazi era, whether because of personal involvement or out of consideration for colleagues or teachers, it is likely that they have not exactly encouraged students who have wanted to work in this field, and they may even have prevented them from doing so. In this way the understandable reluctance of scholars who were themselves involved in the events has influenced at least the next generation of students.

It strikes me as revealing that all the dissertations and
Habilitation
theses that have been written in the Federal Republic on the topic of National Socialist law were, as far as I know, supervised by professors who had not been involved with National Socialism in any way. It is also plausible to assume that an attempt to write a
Habilitation
thesis on this topic before 1965 would have run into great difficulties. In any case, nobody made such an effort, which in itself is quite revealing. Only the interdisciplinary lecture courses that were organized during the late 1960s in response to student pressure
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removed a certain fear to enter on a discussion of this topic.

III.
The points mentioned so far—the reticence of academic legal history and the prominent presence of former judges among those who have written on Nazi legal history, the inescapable emotionalization of the topic, the division of Germany and its political
consequences, and the generational problem within the field—form the background to some widely used ways of talking about the subject that reflect many of the problems that beset the study of Nazi law.

To begin with, one often hears that “it is too soon to speak about National Socialism.”
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Others argue, conversely, that it is already too late to do so, at least for the younger generation, since “only someone who lived through that time can understand it.” Other common refrains are these:

—“Only a jurist can speak competently about National Socialist law.”

—“A study of the National Socialist period must be approached differently from a study of the legal ideas of the Carolingians.”
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—“When it comes to rendering judgment on this period, everybody is affected and compelled to take a personal stand. More so than anywhere else, history must here be understood as the teacher of the present.”
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The biases and value judgments contained in these statements spring from a common intent: they all seek in some way to guide research on National Socialism or on the law under National Socialism. A reductionism takes place, based always on a certain notion of how research should be conducted and who should do it. The last quotation begins by positing the inevitability of a personal stance. It then sets up a goal of historical work, that of teaching the present, which makes other goals secondary or excludes them altogether. This move, too, is reductionist.

Evidently all these biases and value judgments have their own historical and group-specific contexts. If one uses the tools of theory to discuss the “truth” or “falsehood” of these statements detached from their context, the result will be essentially a contribution to the methodology of legal history that uses these biases and value judgments as an example. By contrast, if one includes the context to examine when and with what intent these formulations were used, one’s interest is “historical.” In that case the discussion seeks to explain certain typical patterns of behavior on the part of (legal) historians of the postwar period and how they affected scholarship. That is precisely what the following remarks seek to do.

It is too soon to speak about National Socialism
. The unforeseen changes it has set in motion in the world, and the catastrophe that befell large parts of Europe, and especially Germany, through World War II, have stirred up emotions that make an objective judgment difficult . . . That is why scholarship should refrain from making laudatory or damning judgments. Establishing the proper relationship between accomplishments and idealistic goals, on the one hand, and crimes and guilt, on the other, is a task that demands a detached judgment that has not been attained, and perhaps cannot be attained at this time.
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This position was formulated in 1951 by one of the scholarly protagonists of Nazi criminal law, G. Dahm. Considering that the author was personally involved in the events he is talking about and was writing only a few years after the end of the Nazi era, it is understandable why he would say this. This attitude was in fact widespread during the first years of the postwar period among scholars and the general public. By expecting a calm and detached judgment “sine ira et studio” at some later time, it kept open the possibility of a positive assessment of National Socialism in the future. At the same time it criticized the prevailing and unambiguously negative judgments of the Nazi era, which, as Dahm put it, amounted to an “excessive rejection and disparagement of the historical forces . . . that determined the fate of Germany between 1933 and 1945.”

The further time moves on and the more sober historical scholarship shows that the time is now ripe for an assessment of the phenomenon of National Socialism, the more difficult it is to maintain the defensive strategy that tells historians that it is “too soon.” We can see this, for example, in Robert Scheyhing, who justified leaving National Socialism out of his constitutional history of Germany, published in 1968, by arguing that the competence of a historian has reached its limits when it comes to the Nazi period. Those limits are reached, he argued, when the most recent past affects the present to such an extent that distance from the topic is lost, particularly if the present conceives of itself as a world consciously and deliberately opposed to the past: “The examination of legal history therefore should not take the period of Nazi rule in Germany into consideration. Today that period belongs more properly to the domain of the philosopher and legal philosopher than that of the historian.”
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To be sure, experience has taught us that a certain distance in time and certain factual preconditions are necessary to attain higher levels of objectivity. The more the period under discussion was racked by ideological battles whose reverberations are still felt by the historian, the longer the interval of time that must elapse. This applies in a very high degree to National Socialism. Both the Federal Republic and the German Democratic Republic were founded and legitimated as different “historical answers” to National Socialism, and both demanded from their citizens the political rejection of “fascism.” With regard to factual preconditions, we could mention especially the accessibility of sources and the normative guarantee that scholars are free to pursue their work and actually do so.

Fourteen years after Dahm’s work, the exclusion of National Socialism from legal and constitutional history is—with all due respect to
the problem of “proximity”—obviously no longer tenable. National Socialism has become “historical,” with all the consequences this entails for the historical disciplines, including legal history. It is no longer possible to hand the topic over to philosophy or legal dogmatics. Numerous historical works on Nazi law have de facto cut the ground from under the defensive argument that it is “too soon.”

The second refrain, that
only someone who lived in that time can form a judgment about it
,
¹¹
is always used by the older generation against the younger one, with the former invoking direct experience against “knowledge acquired by reading.” Nothing about this argument makes it unique to National Socialism. It is found anytime someone who “was there” wants his or her “authentic interpretation” to prevail against others. The discussion about judging people’s behavior during the Nazi period has been carried on in this vein not only between former National Socialists and their children, but also between old and young communists, social democrats, and Christians, and between parents and children. The use of this argument will continue for as long as there are people who “were there.”

It is undeniable that people who observed and/or participated in and helped shape a historical event are more informed about things they knew firsthand than someone who seeks to reconstruct a complex chain of events by interpreting what are for the most part written sources. It is also true that documents alone have limited evidentiary value in dictatorships and in the age of the telephone.
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Still, the potential for errors that arises from the privileged position of the observer or actor is obvious. People who are directly involved frequently write interesting diaries and memoirs, but experience has shown that they cannot simultaneously be their own detached historian. The deeply human wish to cast the past and one’s own accomplishments in a positive light invariably clashes with the demand for an objective account and assessment. We can study this phenomenon in many writers of memoirs, from Otto von Bismarck, Winston Churchill, and Charles de Gaulle to Heinrich Brüning, Konrad Adenauer, and Carlo Schmid.

If one believes that historical writing is more than a collection of reports of personal experience, the thesis that only someone who experienced a historical era can speak about it competently, taken to its logical extreme, would lead to the end of historiography as such.

Only a lawyer can speak competently about National Socialist law
. Even in its more cautious formulation—that only the legal historian is in a position to answer the specificially judicial questions about the circumstances of the legal system under National Socialism—this thesis is rarely stated so explicitly. Nevertheless, the scholarship on National
Socialist law is—with a few notable exceptions—the monopoly of lawyers. Historians, moreover, seem to accept this monopoly. For example, Helmut Krausnick said, in the introduction to the first volume of the series
Die deutsche Justiz und der Nationalsozialismus
(The German judicial system and National Socialism): “The nature of the topic (!) is such that its scholarly treatment devolved for the most part upon jurists.”
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If the meaning or actual effect of this thesis is that nobody “from the outside” should judge the role of jurists in the Nazi state—that “misconduct” will be sanctioned internally, as it were, and good conduct rewarded internally—it is completely unacceptable. The historical examination of a specific segment of society under National Socialism cannot be monopolized by the scholarly discipline most directly concerned. Legal history—in formal terms the field most appropriate for dealing with the topic of Nazi law—is part of general historical studies, irrespective of the position it occupies in the training of jurists, a position that has no compelling theoretical justification (but is a sensible one).
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For that reason all historical disciplines are in some way responsible for the study of Nazi law. Legal jargon and the difficulty of translating theoretical problems into everyday language pose no fundamental obstacles.

In general, the thesis is therefore understood in a milder form, for instance, in the sense that jurists have a professional advantage in mastering the terminology and grasping the specifically “legal” questions. Whether this is sufficient to constitute a separate field of research called “legal history” remains an open question. Here I am concerned with the consequences that flow from the jurists’ monopoly as revealed by studies on Nazi law written by jurists. In my view those consequences have been largely negative, unless the legal competence of the authors was balanced by a corresponding historical view.