The Law in Nazi Germany

Ideology, Opportunism, and the Perversion of Justice

Alan E. Steinweis, Robert D. Rachlin, Alan E. Steinweis, Robert D. Rachlin

• Publisher: Berghahn Books
• Year: 2013
• ISBN:
  9780857457813
• Edition: 1
• Topic: Geschichte
• Subtopic: Zweiter Weltkrieg

While we often tend to think of the Third Reich as a zone of lawlessness, the Nazi dictatorship and its policies of persecution rested on a legal foundation set in place and maintained by judges, lawyers, and civil servants trained in the law. This volume offers a concise and compelling account of how these intelligent and welleducated legal professionals lent their skills and knowledge to a system of oppression and domination. The chapters address why German lawyers and jurists were attracted to Nazism; how their support of the regime resulted from a combination of ideological conviction, careerist opportunism, and legalistic selfdelusion; and whether they were held accountable for their Nazi-era actions after 1945. This book also examines the experiences of Jewish lawyers who fell victim to anti-Semitic measures. The volume will appeal to scholars, students, and other readers with an interest in Nazi Germany, the Holocaust, and the history of jurisprudence.

Chapter 1

THE CONUNDRUM OF COMPLICITY

German Professionals and the Final Solution

Konrad H. Jarausch

FROM THE NUREMBERG TRIALS TO recent media revelations, evidence has steadily accumulated that German professionals were involved in the crimes of the Holocaust to a shocking degree. While the brutality of lower-class concentration camp guards may not be surprising, the betrayal of the Hippocratic oath by murderous doctors like Mengele affronts moral sensibilities.¹ Though the tirades of the anti-Semitic Brownshirts of the Sturmabteilung (SA) were to be expected, the justification of racial discrimination by legal theorists like Carl Schmitt continues to baffle observers. Even if the book-burning by Nazi students might be attributed to misguided enthusiasm, the drawing up of ethnic cleansing plans by völkisch professors like Albert Brackmann disgusts intellectual sensibilities. Perhaps this outrage is a result of disappointed expectations based on the implicit assumption that academics ought to be held to a higher ethical standard, possess greater competence, and behave in a more humane manner.² Behind this revulsion lies the central question: How could apparently decent, competent professionals become Hitler’s accomplices?

The emergence of the Holocaust perspective has transformed educated involvement in the Third Reich into a cautionary tale, which now suspects virtually all professionals of being accomplices in genocide. In a remarkable reversal of fronts from earlier apologias, a younger generation of German intellectuals is no longer content to treat their predecessors as occasional accomplices, but accuses them of being the actual “masterminds of mass destruction.”³ Though appealing, such a blanket condemnation oversimplifies the complexity of collaboration in turn. Interestingly enough, survivors’ accounts rarely mention professionals—only sometimes referring to prison doctors—but they rarely address the engineers who designed the camps or the lawyers who organized the genocide.⁴ For all his “shame over Germany” because it was suddenly turning back into a violent fourteenth century Romania, Victor Klemperer noted in his diary a range of academic behaviors extending from base opportunism to courageous resistance.⁵ A closer look reveals not only an appalling amount of nationalist collusion but also instances of opposition against war and repression.

Older explanations, initially put forward by contemporaries, tended to emphasize the dictatorial character of the Third Reich that left professionals no choice but to cooperate with the regime. Distressed by the betrayal of their colleagues and frightened by the rise of communism, émigrés like Hannah Arendt or Carl Friedrich developed the notion of totalitarianism that emphasized the terrorist character of the racial dictatorship. Historians like Karl-Dietrich Bracher investigated the reasons for the collapse of the Weimar Republic, sought like Michael Kater to account for the rise of the Nazi movement, or tried like Henry Ashby Turner to analyze the alliance of German conservatives with the Nazi upstarts that put them in power.⁶ Other scholars have, like Ian Kershaw, focused on Hitler’s “charismatic authority” and interpreted his appeal to the masses through the notion of “working towards the Führer,” while Hans-Ulrich Wehler endeavored to provide a socio-structural explanation for the workings of Hitler’s charisma.⁷ Though these larger interpretations sketch the context of the Third Reich, they say little about the specific role of professionals in the Nazi regime.

More recent research that differentiates the monolithic picture of a “consensus dictatorship” makes more room for an analysis of academic collusion by examining the changing pattern of voluntary cooperation from below. Transcending the black and white categories of de-Nazification, Robert Gellately’s or Eric Johnson’s studies of everyday interactions stress the ambiguity of individual roles and uncover a complex mixture of complicity and reluctance, pointing out that reactions ranged from enthusiastic nationalism to Catholic or Socialist reservations.⁸ More suggestive is Ulrich Herbert’s exploration of the strange mixture of ideological commitment and professional competence in the biography of SS leader Werner Best, while Michael Wildt has painted a collective portrait of an entire cohort of university graduates who formulated the murderous policies of the RSHA.⁹ Finally, a number of scholars have also started to examine the actions of individual professions like doctors, lawyers, and teachers more closely in order to get at the complicated mixture of support, collaboration, or resistance among academics as a group.¹⁰

The interpretative challenge, therefore, consists of developing a complex understanding of professional complicity that accounts for both collaboration and reluctance. Perhaps the perspective of “critical historicization” that addresses the contradiction between Communist terror and everyday lives in the second German dictatorship might provide such a nuanced approach.¹¹ In order to assess the precise extent to which individual academics or entire professions were involved, it might help to break down the overall question into some of its component parts: Why did a growing number of professionals respond to Nazi appeals during the Great Depression? What was the role of anti-Semitism in the subsequent displacement of their Jewish colleagues? How did the Second World War speed the abandonment of moral standards and facilitate mass murder? Which memories did the collusion of academics with the Third Reich leave after its collapse? The following reflections will draw both on recent scholarship and on some documentation from my own family history in order to examine how similar to or different professionals were from ordinary Germans.¹²

The Attraction of National Socialism

Due to the social distance between the educated middle class and lower class rowdies, most professionals initially looked askance at the “crude anti-intellectualism” of the Nazi movement. In Weimar Germany, the academic professions consisted largely of male university or technical school graduates who were steeped in a neo-humanist tradition of the classics, oriented towards scholarly research, and initiated into the practical requirements of their later pursuits. Though they had much freedom to study, they were generally subjected to a rigorous set of state examinations that tested their theoretical knowledge as well as their practical competence. While many chose the independence of the free professions (freie Berufe) by becoming lawyers and doctors, even more gravitated towards state employment in the legally-oriented bureaucracy, neo-humanist Gymnasia, or proliferating research institutes. Graduates of the natural sciences, technical subjects, or commercial fields also flocked into the laboratories and board-rooms of the knowledge-based industries. Though rarely wealthy, the some 350,000 university graduates were respected for their competence and envied for their security.¹³

One educated group which was particularly vulnerable to right-wing appeals was the “war youth generation.” Like my father, these young men were born between 1900 and 1910 and experienced the First World War in school, where they were subjected to a stream of incessant patriotic propaganda and longed to prove their mettle in action. Since they lacked the personal experience of combat that disillusioned many of their older brothers, many were keenly disappointed in the military defeat and never really arrived in the leftist Weimar Republic. Traumatized by “the terrible collapse of our childhood world,” they flocked to völkisch causes that provided a populist form of nationalism, which seemed more modern and egalitarian than the hierarchical Empire. The radical fringe volunteered, like Ernst von Salomon, for the Free Corps, fighting foreign and domestic enemies, while moderate youths joined rightist student groups that banned Jews and hounded liberal professors. Some of them might have outgrown the male-bonding fantasies of the Youth Movement, had they not completed their training just when the bottom dropped out of the economy.¹⁴

By exposing the shallowness of the postwar recovery, the Great Depression plunged aspiring and established professionals into a crisis that often threatened their very survival. Due to the lack of alternatives, the number of students soared, overcrowding the universities and also renewing the oversupply of graduates desperately looking for jobs. Since the government had little revenue left to hire, most law probationers had no choice but to swell the number of attorneys desperately competing for clients. Several thousand teacher trainees, like my parents, had to wait for up to a decade before they could find a position. Massive lay-offs in industry created an annually doubling pool of tens of thousands of unemployed who had to get by on their shrinking savings, losing much of their self-respect. Even bureaucrats were hard hit, since successive pay cuts, imposed by the Brüning government, reduced their previous income by about one-third. Though most established professionals resented their longer work hours, shrinking remuneration, and declining social status, the Depression hit the younger generation especially hard, since it denied them entry into their chosen field.¹⁵

No wonder the result of such dislocation was a widespread “crisis of professional consciousness.” Overcrowding, unemployment, and impoverishment seemed to practitioners to be a betrayal of expectations and values for which the failure of the system, i.e., the Weimar Republic, and not their individual mistakes, must be responsible. It hardly helped that the democratic parties were unable to offer any workable remedies, since the Social Democrats suggested spreading the pain by sharing poverty. Struggling lawyers were disappointed that Liberals could only counsel a redoubling of efforts to win the competition for the few remaining commissions. In this confusion, the previously dismissed radical suggestions of various völkisch nationalists gradually began to seem more credible: Could the acute crisis not be overcome by eliminating unwanted competitors such as the newly admitted women, the studious Jews, or the subversive foreigners? Some embittered teacher-trainees without a job even contemplated suicide.¹⁶ In effect, the suffering of the depression discredited liberal conceptions of professionalism and made harried academics search for more drastic alternatives.

The chief beneficiaries of the crisis were zealous Nazi practitioners who founded their own competing associations. Fed up with traditional corporations, völkisch students created an anti-Semitic NS German Student League; they campaigned against Leftist professors, brawled with their competitors, and won enough campus elections so they could take over the national student association in the summer of 1931!¹⁷ In order to provide legal defense for their violent SA thugs, Nazi lawyers established a League of NS German Jurists, a vocal pressure group that had attracted abou...