Samuel A. Fletcher History 132 April 15, 1993 On the Courts of the Third Reich: Servants or Opponents of National Socialism? With the passage of the Enabling Act of March, 1933, Adolf Hitler assumed the powers of a dictator. To what extent, though, was the German legal establishment responsible for this seizure of power and the retention of such power for twelve years? There can be no doubt that the courts of had a substantial impact. It can be argued that without the support of the legal system, National Socialism would have difficulties gaining the amount of support it did. The nature of the servitude of the courts to National Socialism can be seen in three elements: conservative traditions, "coordination" under Hitler, and the fervor displayed for the new machinery of justice. The conservative attitudes of the Weimar Republic's court system dates back to Bismarck and the German Empire. In a series of actions involved in his shift of power base from the National Liberals to the Conservatives, Otto von Bismarck purged the judiciary of its more progressive judges. Older judges influenced by the revolutionary spirit of '48 were given early retirement. These vacant positions were later filled with wealthy conservatives and tested civil servants who had shown a great deal of loyalty to the Empire and the monarchy. The restrictions on entering the judiciary were tightened requiring students to undergo years of expensive training and in some instances, a deposit of several thousand marks. These combined actions ensured that the profession was dominated by wealthy conservatives who could afford the long periods of training. Over time, this conservative spirit was to become ingrained in the psyche of the German courts. It was this conservatism that horrified the judiciary after the fall of the monarchy. The courts that had been carefully groomed to conservative expectations were now dismayed to witness the formation of a liberal republic headed by the SPD. The chairman of the Federation of German Judges, Johannes Leeb, was moved to comment that the laws of the Republic were created with a "spirit of deceit" and constituted "a bastardized law of party and class"(Mueller, p.10). In spite of this obvious contempt for the new republic, only a handful of judges opted to resign. Instead, the judiciary gained concessions from thee fledgling Republic struggling to find political support. Judges were thus granted their independence and guaranteed immunity from dismissal. Convinced of the "Dolchstosslegende", the perceived "stab in the back" by a small number of outsiders and traitors responsible for the defeat of 1918, the judiciary set about the task of eliminating the enemy within. That the judiciary made distinctions between who was or wasn't "the enemy within" based on political ideology is apparent in a number of cases. When Eisner's People's Republic of Bavaria collapsed in 1919, a wave of arrests followed as government troops marched in to restore order. This order exacted a large death toll as 1,100 were killed in the police action. Furthermore, in the ensuing trials of the surviving members of the movement, the court sentenced one to death and 2,209 others to a total of 6,080 years imprisonment (Mueller, pp.11-12). In contrast, the Kapp Putsch of 1920, one of the most serious threats to the Republic, was handled by the courts with surprising leniency. Of the original 507 suspected of criminal offenses, only four men remained after several were allowed to flee the country and an act was passed which granted a general amnesty to all "followers" of a treasonable undertaking. Kapp died in prison and only one man, Traugott von Jagow, was sentenced to five years fortress detention (Mueller, p.13). In determining the sentences for political criminals, much weight was given to the concept of "motivation". Although 97% of the republicans sentenced in Munich were found to have dishonorable motives, Jagow was praised as having "undoubtedly noble motives". This kind of openly pro-nationalist judgement can also be seen in the trial of the leaders of the so-called "Beer Hall Putsch" of 1923. During the proceedings, defendants were allowed to make attacks on the national government from the witness stand. Comments such as "Jew government" and personal attacks on President Ebert were common and went unhindered by the presiding judges. As in the decision of the Kapp Putsch trial, the judgement handed down acknowledged that the accused had "been guided in their actions by a purely patriotic spirit and the noblest of selfless intentions... For months, even years, they had taken the position that the treason of 1918 required atonement through an act of liberation" (Mueller, pp. 15-16). Defendants were given no more than five years fortress arrest and a fine of two hundred marks; the majority received substantially less. General Ludendorff, implicated in yet another putsch attempt, was found not guilty as the judges found no reason not to believe he was present at the scene of arrest in full uniform by sheer coincidence. Such was the case everywhere in the Republic. Right-wing radicals were treated with almost ludicrous leniency while socialists and communists were given as harsh a treatment the court could justify. The "national emergency" defense was used to justify every kind of right-wing nationalist violence and the court system accepted it. The effect of this kind of support was an encouragement of the radical right and an undermining of confidence in the supporters of the Republic. Court support of the parties of the right allowed the Nazis to gain heavily in elections. On January 30, 1933, under a perceived threat of a communist uprising, President Hindenburg named Hitler chancellor and gave him the power to dissolve the Reichstag and rule by decree. Only about a month later, the Reichstag building went up in flames. This presented the new chancellor the opportunity to issue the Reichstag Fire Decree which gave Hitler emergency powers to clamp down on the traditional freedoms guaranteed by the constitution in order to circumvent a national emergency. The lists of those arrested included not only communists accused of setting the blaze as a signal for a revolt, but also pacifists, socialists, and leftist writers. Similar decrees were enacted which increased the penalties for treason. One effect of these subsequent decrees was to blur the distinction between criticism of the government and treason. Thus, criticism of the government, such as suggesting that the Nazis were responsible for setting the Reichstag fire, could now be interpreted as treason. The Reichstag Fire Decree had two effects. The first was that it essentially abolished the most basic rights guaranteed by the Weimar constitution. Judges eventually interpreted "communist threat", the original target of the decree, to include all threats to the state. Courts were now claiming that " `The protection of public order and safety in today's state also includes safeguarding the general interest of our social order,' and that limits on government infringement on individual rights no longer existed" (Mueller, p. 48). The second effect was the extension of the word "political" to include almost all areas of life. Thus, crimes of a minor nature were, with the use of the Reichstag Fire Decree, extrapolated to the level of political crimes. The interpretation of the decree became so general that Dr. Werner Best, chief counsel for the Gestapo, pointed out that it was leading to "internal inconsistencies in [the judges'] reasoning"(Mueller, p. 49). The servile nature of the courts of the Third Reich can also be witnessed by examining the "coordination" of jurists under Hitler. On April 7, 1933, the Law for the Restoration of the Civil Service was passed. In essence, this piece of legislation was designed to weed out those jurists who presented even a perceived threat to the government. The list included the usual suspects: socialists, Jews, pacifists, and if discovered, even those who dared to vote against the National Socialists in any election. One lawyer who refused to make a "voluntary" contribution to a Nazi charity fund was dismissed on the grounds that "he had refused to participate in a community undertaking, because he wishes to show that no one [can] compel him to"(Mueller, p.84). With the expulsion of the Jews and liberals from the judiciary, one could argue that the courts had been transformed into a completely different system compared to that of the Weimar Republic. The courts were not servants of National Socialism, but rather were a creation of National Socialism. However, this is not exactly true. Yes, there were expulsions, but in reality there weren't many in the higher courts where policy was decided upon and real resistance could have taken place. Of the 122 judges presiding on the various panels of the Supreme Court, only one, a Social Democrat, was dismissed for political unreliability (Mueller, p. 37). In fact, most of the judiciary was so deeply involved in the effort to ingratiate itself with the new regime that the purge of politically undesirable elements was in practice even before it was put into law. The mentality of the courts was evident in the growing fervor of the National Socialist law associations. Formerly independent law associations lined up to place themselves under the guiding hand of Hitler. Federation of Judges chairman Karl Linz declared, "We have placed everything in [Hitler's] hands with complete confidence"(Mueller, p. 37). The Saxon Association of Judges placed itself "jubilantly and dutifully under the leadership of the people's chancellor, Adolf Hitler"(Mueller, p. 38). The list goes on and on, from the national level right down to the state level. Oaths to the Fuhrer were constantly being revised and sworn in a sort of macabre struggle to be the center of Hitler's attention. Considering the courts' conservative tradition and its subsequent "coordination" under Hitler and National Socialism, it is no wonder that the legal system fulfilled its duty to the Nazis with an almost uncontrollable vigor. The court system was now Hitler's political attack dog who could be relied upon to chew up and spit out any threat to the government, either real or imaginary. It is in this fervor to destroy the enemies of the state that the servile nature of the courts may once again be seen. The new role of the Nazi jurists was being debated at the time of the coordination. Through a genuine devotion to National Socialism and a touch of opportunism, the courts perceived themselves not as dedicated to the law, but rather dedicated to Hitler. To show any sign of coolness to the regime was considered a breach of professional standards. There developed in the judiciary a goal of uniting both the prosecution and the defense in order to facilitate the eradication of the enemies of the state. Thus, a court appointed defense attorney often became a second prosecuting attorney as he would rail against the person he was defending. This was only one of the steps taken by the judiciary to better serve National Socialism, however, as the courts developed numerous weapons with which to serve the state. The first of these weapons was the debate on what was legal and illegal. There was some discussion of whether a criminal code could not be dispensed with entirely. An acceptable National Socialist criminal code was eventually agreed upon based on "general provisos, admission of analogy, recognition of healthy popular opinion as a source of law, and a direct and immediate recognition of what was just..."(Mueller, p. 75). With statements such as these, the courts intentionally blurred legality from something concrete to what was known as material illegality, or "activity counter to the National Socialist world view". Thus, judges were given the freedom to interpret laws to the point of breaching them in order to satisfy the aims of their Nazi masters. The second weapon available to the courts with which to combat the enemies of the state was the flow of vague and ambiguous legislation coming out of the Reichstag. The most ridiculous of these were the various Nuremberg Race Laws, which were designed to protect the purity of German blood by such means as annulling existing interracial marriages and prohibiting interracial sex. The law was rather vague on the definition of Jew and what constituted sex. Jews were given their status based upon their grandparents or what religion they themselves practiced. Numerous categories such as "crossbreed (first degree)" were later defined. Sex, on the other hand, was left open for interpretation ranging from actual intercourse to, in severe cases, a mere glance at a German girl. The Nuremberg Laws were by no means limited to decrees on sex and marriage. In practice, Jews were stripped of all rights including protection usually offered by the state. The Supreme Court ruled: The earlier (liberal) view of personal rights made no distinction among human beings on the basis of sameness or difference in blood... According to the National Socialist world view, however, only individuals of German heritage (and those placed on equal footing with them) should be treated as persons with full legal rights within the German Reich. (Mueller, p. 118) Jews were stripped of their rights in court through repeated declarations such as the one above and the unwritten mandate which stated that Jews should receive no advantages. Other laws were on occasion combined with the Race Laws in order to put defendants to death. The decree on Asocial Elements was designed to protect the community from activity against "life, limb, or property". It was also stated that repeat offenders or those who had taken advantage of the situation caused by the war were to be put to death. The same went for perpetrators of violent crimes under the Decree on Violent Criminals which stated that death was the mandatory sentence for those found guilty of committing a crime with the use of a weapon. For an example of the creative combinations of law used by the court to hand out the maximum penalty, the case of Josef C. is quite informative. This Jewish bargeman had sex with a German woman under questionable circumstances and was accused of rape. The woman, Frau J. is reported to have given inconsistent testimony in the hearings and admitted that Josef C. had "choked her slightly". The court ruled that the weapon used in the act of "dishonoring the race" was the hand of Josef C. and he was sentenced to death under the provisions of the Decree on Violent Criminals (Mueller, p. 135). The last weapon available to the courts in their pursuit of Nazi justice was the use of Special Courts. These were courts that dated back to the Weimar Republic which were designed to try political criminals. Under the auspices of National Socialism, Special Courts became the prime machinery for speedy justice in the Reich. In the words of Supreme Court judge Otto Schwarz, the concept of Special Courts "fulfills the aim of punishing a crime... by letting the penalty follow upon the criminal act with the greatest possible thoroughness and speed, and at the lowest cost" (Mueller, p. 153-154). The conspicuous omission of fairness in such a statement is rather telling. Judges of the Special Courts were paid to deliver the verdicts sought for as quickly as possible. Public prosecutors enjoyed using the Special Courts when they believed that "swift sentencing... [was] called for in view of the depravity or the seriousness of the deed, public reaction to it, or the danger it posed to public order and safety"(Mueller, p. 157). Perhaps the most sinister and well known branch of the Special Courts was the infamous People's Court. When Hitler proclaimed that "heads would roll in the sand" after the revolution had become successful, he envisioned a tribunal of justice designed not dispense impartial justice, but rather to annihilate the enemies of National Socialism. The People's Court served this role with distinction. The statistics provided for the years 1937-1944 show that of the 14,319 defendants who faced trial before the Court, 92.5% were found guilty and of those, 40.6% received the death penalty. This kind of sentencing history is not common for all of Germany during this period, however this does illustrate how the new Nazi machinery of justice strove to produce results (Mueller, p.143). The sheer brutality of the People's Court is evident in the trial of the Kreisau Circle, the conspirators involved in the plot to assassinate Hitler in 1944. Throughout the trial, originally filmed for propaganda purposes, Roland Freisler, president of the People's Court, constantly referred to the defendants as "pip- squeaks" and "rats" who deserved to be "stepped on, squashed flat". Field Marshal von Witzleben was called a "dirty old man" by the president for trying to hold up his pants without the aid of suspenders or a belt. The People's Court actually succeeded at "out-nazifying" the Nazis in this instance. In a report on the trials of the Kreisau Circle, Minister of Justice Otto Thierack offered his view of what had taken place: [Freisler] would not let Leuschner and von Hassell finish their sentences. He shouted them down repeatedly. That made quite a bad impression... Unfortunately, he treated Leuschner like an idiot and Goerdeler like a half-wit, and referred to the accused as pip-squeaks. This seriously undermined the gravity of the proceedings. Lengthy and repeated speeches made by the presiding judge solely for propaganda effect are repellently out of place. Once again, the gravity and the dignity of the court suffered (Mueller, p.150). To be criticized by high level Nazi officials for being too vitriolic and just plain obnoxious must have taken effort on the part of Freisler. The Nazi dream of creating a system of justice that would carry out sentences quickly and summarily had definitely been fulfilled in the Special Courts. The harshest of penalties were handed down with a minimum of formalities. Every day judges of the Special Courts carried out their task of intimidating the public to conform using psychological terror to the complete satisfaction of their masters in the National Socialist government. Was the judiciary of the Third Reich partly responsible for the terror of National Socialism? Former Nazi judges have written in their defense that there was a solid block of opposition to National Socialism from many judges. However, the list included men such as Paul Vogt, who kept the defendants in the Reichstag Fire trial locked in chains for weeks before the proceedings. Karl Linz, chairman of the Federation of Judges is quoted as saying that he feared the new government might introduce measures "placing into question the security of judges' tenure in office and the independence of the courts"(Mueller, p.36). These would seem like rather adversarial words had we not seen the same man months later supporting the cause of National Socialism by expressing his loyalty to Hitler after the passage of the Law for the Restoration of the Civil Service (see above). However loudly ex-Nazi judges speak of resistance from the bench, there is but one documented case of speaking out against National Socialism. Dr. Lothar Kreyssig of the Court of Guardianship in Brandenburg objected to the Nazi euthanasia program being conducted in area hospitals. He went so far as to issue injunctions against the practice of transferring patients (presumably to their deaths) without his permission. His actions did not go unnoticed and he was eventually dismissed--with the full pension he was entitled to with a natural retirement. Minor instances surely must have occured, but they are far from being representative of the entire body of German judges, the overwhelming majority of which must share responsibility for the terror. The judiciary was a clear and definite supporter of National Socialism. When one looks at their history before and after 1933, the sense of servility to nationalistic, right-wing elements is clearly evident. The special treatment received by the parties of the right, the fervent subjugation of law organizations to Hitler, and the vigor with which jurists carried out their new duties are all factors which point to the special relationship between the courts and National Socialism. Without the collaboration of the judicial system, the Nazis would have been hard pressed to maintain the complete and total choke-hold on the German people that they enjoyed for twelve long years.