Lessons from the Totalitarian Past Augusto Zimmerman
https://quadrant.org.au/opinion/the-law/2021/12/lessons-from-the-totalitarian-past/
Excerpts
It is increasingly clear the principle of legality is no longer regarded as important by some elements of the judicial elite, at least insofar as governments can allege the ’emergencies’ they declare justify the enactment of measures that profoundly affect our fundamental rights and freedoms. There is an unsettling precedent for the law’s endorsement of the unacceptable.
Unfortunately, the Australian legal profession has generally accepted the use of emergency powers by the executive government, thus enabling authorities to issue executive orders that impose heavy fines and imprisonment for non-compliance with certain arbitrary measures. Apparently, even the principle of legality is no longer regarded as important by some elements within the judicial elite, at least insofar as the government can allege that an “emergency” justifies the enactment of measures that profoundly affect the enjoyment of our fundamental rights and freedoms.
When one looks at the German legal profession in the 1930s, leaving aside those who were committed to the Nazi ideology, it becomes apparent that legal positivism played a significant role in the failure of lawyers to stand up against the Nazi atrocities. As noted the late Charles Rice, when the Nazis moved against the Jews, most lawyers who personally opposed the Nazi regime were ‘disarmed’ by legal positivism.[8] This wouldn’t be so if those lawyers had responded to the early Nazi injustices with a sound and principled denunciation rooted in traditional principles of the natural law. However, embedded in the positivist dogma that ‘law is law’ regardless of its substantive nature, many German lawyers became defenceless against laws of arbitrary or criminal content.[9] Because such lawyers ‘argued that the evolution of law should be viewed as following purely positive patterns’, Seitzer and Thornhill explains, ‘they concluded that the validity of law depended on its status as an internally consistent set of rules, and it could not be reconstructed or interpreted on the basis of moral prescriptions’.[10]
However, the vast majority of lawyers in Germany were supportive of Hitler. These lawyers embraced the notion that Germany was an organic unity and the spectacle of a divided parliament was unnatural to them. The principal characteristic of German lawyers, including law professors, was illiberalism.[21] The German legal profession generally welcomed Hitler’s appointment as Chancellor.[22] In October 1933, in their annual convention at Leipzig, 10,000 lawyers raised their right arms in a Nazi salute and swore, ‘by the soul of the German people’, that they would ‘strive to follow the course of our Führer to the end of days’.[23] On that very day the official journal of the Ministry of Justice exhorted the German legal profession to ‘march as an army corps of the Führer’.[24]
The Reich Minister, Hans Frank, was the head of the German Bar Association (1933–42), the Elected President of the International Chamber of Law (1941–42), and also President of the Academy of German Lawyers. Frank 
believed that ‘the basis for the interpretation of all legal sources is the National Socialist ideology that is particularly manifested in the party program and the Führer’s statements’. According to him, Hitler’s will comprised the ultimate ‘source of the law’, thus adding that he belonged to the ‘greatest lawgivers of universal history’. In his 1938 book, Frank stated: ‘Our constitution is the will of the Führer.’[25] As for the role to be played by the judicial elite, Frank commented, it should
… safeguard the concrete order of the racial community, to eliminate dangerous elements, to prosecute all acts harmful to the community, and to arbitrate in disagreements between members of the community. The National Socialist ideology, especially as expressed in the Party programme and in the speeches of our Leader, is the basis for interpreting legal sources.[26]
Ironically, the more the members of the legal profession made efforts to legitimise the Nazi regime, the more was the abuse and contempt of the regime towards them. Lawyers who collaborated to the legitimisation of the Nazi regime later were forced to accept the bitter realisation that they were entirely dispensable at the hands of a regime that worked entirely via executive orders and emergency measures, as opposed to the real law. According to the German leader, ‘the health of the German nation [was] more important than the letter of the law’.[27] He did not think much of lawyers, believing they were ‘men deficient by nature or deformed by experience’.[28] In 1942, Hitler revealed his desire to ‘make every German realize that it is a disgrace to be a lawyer’.[29]
German judges were disproportionately supportive of the Nazi regime.[30] They faithfully assisted the Nazis in their ultimate goal of achieving unchecked power. In the waning days of the Weimar Republic, those judges openly aligned themselves with the Nazi Party and fully endorsed anti-Semitic sentiments in their judicial rulings.[31] The German judiciary even gave Hitler a very lenient sentence after he was charged with treason following the 1923 Beer Hall Putsch, in Munich.[32] Treason was a serious offence that carried a prison sentence of 20 years’ hard labour. However, the presiding judge, Georg Neidhardt, was openly sympathetic to the Nazi cause and gave Hitler unlimited opportunity to speak during his trial. His twenty-four-day trial actually turned the Nazi leader into a celebrity, capturing headlines around the world. Hitler was given by the judiciary an unlimited chance to make his speeches, and he used colourful language to get his hateful message to all Germany and, for that matter, to the world.[33] Once in power, the Nazis eventually awarded Neidhardt the Presidency of the Bavarian High Court.
Hitler was sentenced for five years but spent only ten months in jail, being released on probation. The Bavarian state prosecutor had opposed his early parole, but the Bavarian Supreme Court had disagreed and ordered his release.[34] From the Landsberg Prison, Hitler found time to write the bible of Nazism, Mein Kampf, where he paints himself as a sort of charismatic hero with the mission to save Germany.[35] Hitler was discharged from Landsberg prison on December 20, 1924.
When President Hindenburg died on August 2, 1934, Hitler was confirmed as both Chancellor and the Head of the State. The post of Reich President was abolished. The first step in the plans to consolidate the regime was the ‘Nazification’ of the court system via the removal of ‘undesirable’ judges. Jewish judges were immediately dismissed and those of non-Aryan descent forced into retirement. Those who were deemed ‘politically unreliable’ were also at high risk of removal.[36] Judges who remained in office were encouraged to apply the law with respect to contemporary values and principles, and judicial organisations were merged into the Federation of National Socialist Jurists.[37]
The remaining judges happily adapted themselves to the new realities of society.[38] The level of support provided by the judicial elite to the Nazi regime can be testified by the fact that no German judge, with the exception of a small claims judge in Brandenburg-on-the-Havel, resigned in face of the Nazification of the courts.[39] In other words, only one judge in the entire judicial community voluntarily resigned in disapproval during the entire course of the Third Reich.[40] Therefore, wrote Rottleuthner, ‘the statement that the majority of the judges in the Third Reich at first were diligent on behalf of the new power holders, later probably harassed, but nevertheless submitted, in any case as a body served practically without opposition, cannot be denied’.[41]
In March 1933, the Federation of Judges found it appropriate to issue an official declaration expressing their unconditional support of, and cooperation with, the Nazi leadership, ‘in the revision of German law’.[42] The declaration included a ‘firm assurance’ that those judges would ‘place their full confidence in the new government’.[43] As a result, even some of the most genocidal policies of the Nazi regime were voluntarily initiated and proposed by the judicial elite. Thus in 1933, for example, judge Erich Schultze of the Reich Supreme Court proposed the enactment of a new law criminalising the so-called ‘betrayal of the race that is … the interbreeding of Germans with members of certain races named by law’.[44]
German judges were quite creative in their interpretative approach. They willingly discovered numerous legal possibilities to depriving minority groups, especially the Jews, of their basic human rights, even when no explicit law could be found to justify these decisions.[45] For example, Otto Theirack, the President of the German People’s Court, in a 1940 ruling recommended the sending of any individual to concentration camps without the necessity of trial. He argued this would ensure more rapid results, thus avoiding ‘tedious, very expensive and ponderous court proceedings’.[46]
THE PRINCIPAL force in the judicial legitimisation of the regime were not the Nazi ‘judge-monsters’, the likes of Freisler, Rothaug and Theirack, but instead the so-called ‘good’ judges who did not have enough courage to question the Nazi atrocities and gross violations of human rights.[47] By not questioning the validity of Nazi rules these judges provided the façade of legal normality to the totalitarian regime. By the end of World War II, such judges were indicted in the Nuremberg Trials for assisting in the commitment of war crimes and crimes against humanity. These judges appealed to narrow legal positivism although they failed even to apply the Weimar Constitution as an ex post facto attempt to ‘wash their hands in the waters of legal theory’.[48] Be as it may, those judges miserably ‘failed to perform as ethical paragons for the population at large. They acted as ‘yes-men’ to a brutal regime. Instead of leading in the field of at least intellectual resistance to a criminal state; they readily joined it as followers, and in quite a few instances as activists’.[49]
The same attitude of subservience happened amongst academic lawyers. One reason as to why professors of law were so willing to uphold the Nazi regime was their opposition to natural law theory and consequent denial of the inalienable rights of the individual. In the early1930s the most influential German academic lawyer was undoubtedly Hans Kelsen (1881–1973). Kelsen was a legal theorist who confined his scholarly legal analysis to a theory of the positive law and its interpretation. He was anxious to explain the difference, even the contrast, between what is just and what is legal. But Kelsen himself admitted that this separation of justice and law did not exist in German-speaking nations until the rise of legal historicism in the mid-19th century. Prior to legal historicism, Kelsen explained, ‘the question of justice was considered its fundamental problem by juridical science’.[50] The leading German historicist, Friedrich Carl von Savigny, was a towering figure amongst the legal elite and holds ‘a status in German legal science not dissimilar to that of Johann Wolfgang von Goethe (1749–1832) in German literature’.[51] In one his most influential books, entitled On the Vocation of Our Age for Legislation and Jurisprudence, the concept of natural rights of the individual is described as too abstract and a mere doctrine of 18th-century Enlightenment.
Savigny believed that the individual is no more than a member of the collective body as much as each age of the nation is the continuation of all past ages. History is treated not as a source of example and tradition but the path that leads to the ‘true knowledge of our own condition’.[52] Accordingly, law is approached as something that needs to adapt itself to the contemporary needs of society, so that conflicting arguments can be decided in accordance with the commands of the State As a result, German lawyers were no longer interested in the protection of individual rights ‘but the sovereignty of the State, a product of German philosophical pantheism’.[53] This is how Hans Gerber described the new spirit of German law after 1933: ‘National Socialism insists that justice is not a system of abstract and autonomous values such as the various types of Natural Law systems. Each society has its own concept of justice.’[54] Ultimately, writes Richard Overy, the historicist rejection of objective legal standards,
… made law historically contingent, a product of its own time and place … Law was regarded not set in stone but something that evolved and changed with altered historical circumstances. Historical reality, it was argued, dictated the nature of legal systems and governed their moral worth. … In the Third Reich the highest justice was the preservation of the life of the nation; the nation was the source of law; hence law was also just.[55]
German legal historicism thus became the driving force behind the promotion of the Aryan racial myth.[56] The idea that fundamental rights could impose moral obligations on the State was discarded as a product of ‘bourgeois liberalism’. Since the legal historicist thesis was that justice is entirely conventional and ultimately determined by the State, the final result was not just legal positivism but also moral nihilism. The primary difficulty with this sort of historicism, wrote Leo Strauss, ‘is that all societies have their ideals, cannibal society no less than civilized ones … If principles are sufficiently justified by the fact that they are accepted by a society, the principles of cannibalism are as defensible or sound as those of civilized life’.[57]
Nazi legislation and case law showed a remarkable similarity with the doctrines of German legal historicism. Legal standards were deemed subjective in character and there was no room for personal choices apart from the choices explicitly made by those in power.[58] There was an elusive, romantic-mystical notion of the Volksgeist, which was not attached to the German individual, because ‘a real people would not itself have any practical law-making power as an expression of its common consciousness, which was then indeed the case in Nazi Germany’.[59] This gradual process of homogenisation ‘assimilated’ the individual into the organic body of the Nazi State.[60]
It goes without saying the threat of punishment or the fear of losing their jobs was not the main reason the legal profession supported the Nazi regime. Academic journal articles by leading law professors, for example, ‘displayed a colourful mix of irrational fantasies, self-debasing declarations of submission, and traditional 
dogmatic jurisprudence with a ready (positivist) acceptance of the new legal order’.[61] These articles were entirely dismissive of the idea of individual rights as a concept regarded by these academic lawyers as ‘a degenerate form of bourgeois constitutionalism’.[62] Thus Dr Roland Freisler (right), a legal academic who taught jurisprudence at the University of Berlin, stated: ‘Fundamental rights which create free spheres for individuals untouchable by the state are irreconcilable with the totalitarian principle of the new state’.[63] Paul Ritterbush (1900–1945), another legal academic, argued that Nazism represented the ‘becoming-of-the-nation’ (Volkswerdung) … the fulfilling realisation of the truth and reality of our selves’.
Under the influence of these academic lawyers, it is not surprising that law students provided the chief manpower reservoir of the Nazi extremism. The Nazis did consistently well among those law students who saw Nazism as an exciting radical movement. They liked its egalitarianism and they liked its anti-Semitism too. Indeed, those students were more anti-Semitic than either the working class or the bourgeoisie.[64]
In October 1933, ‘racial laws’ became the main topic of discussion during the annual conference of German law professors.[65] Its keynote speaker, law professor Helmut Nicolai (1895–1955), was co-author of a well-known academic book entitled Rassengesetzliche Rechtslehre (1921). Professor Nicolai spoke with great enthusiasm about the enactment of ‘racial laws’, which, according to him, would help Germans to enjoy the proper ‘blood inheritance’.[66] According to him, the ‘pure conscience’ of such laws’ ‘creative spirit’ would ‘retroactively’ endorse the ancient qualities of the Germanic law.[67]
Even before the regime was consolidated the Nazis had already proposed in the Reichstag a legislation which determined that persons of certain physical or mental defects should be exterminated. Once in power they enacted laws which claimed the lives of thousands of individuals. The extermination of thousands did not disturb the conscience of the legal community who overall supported eugenics. In 1920, a lawyer called Karl Binding (1841–1930) had already co-authored an influential book that bluntly dismissed the possibility of medical misdiagnosis being a matter of concern, even if it eventually resulted in the elimination of human life. Binding stated: ‘For family members the loss is naturally very severe, but the human race loses so many members to errors that one more or less hardly matters.’[68]
If one takes into account the 84 names to be found on the 1922 membership list of the Association of Constitutional Lawyers, academic legal positivists were not surprisingly the largest and most influential group. Alongside the positivists, as a second most influential group, were legal historicists such as Rudolf Smend (1882–1975), who linked the legitimacy of the State with its capacity to generate national cohesion.[69] Smend and other constitutional historicists shared with the positivists a disregard for liberal constitutionalism, including the idea of constitutional rights and the doctrine of separation of powers. In conformity with the concept of Volks-Nomos (‘people-norm’), those constitutional lawyers denied the existence of individual against the State. In sum, they believed that the object of the law ‘was no longer to check but rather to encourage arbitrary exertion of public power’.[70] Such interpretations by highly esteemed legal academics, writes Kershaw, ‘were of inestimable value in legitimating a form of domination which … effectively undermined the rule of law in favour of arbitrary exercise of political will’.[71]
The leading Nazi jurist, Carl Schmitt, owed his first academic appointment at the University of Cologne thanks to the efforts of Kelsen.[72] Schmitt joined the Nazi Party in May 1933, and was immediately appointed Dean of Law at the University of Berlin. He argued that liberal conceptualisations of the rule of law (Rechtsstaat) reflected the ‘self-deceiving’ and ‘weak-spirited’ tendencies found in liberal democracy.[73] A severe critic of the Weimar Republic, he argued its constitution did not provide the kind of ‘strong government’ the nation required. Despite Schmitt’s apparent aversion to positivism, his main argument, that the legal system is contingent and subject to the will of the sovereign, does not contradict the positive command-theory of law. On the contrary, Schmitt’s primary claim that the validity of the law is not primarily justified on moral grounds effectively places him in the solid camp of legal positivism, at least in respect to the classical positivist understanding of the correlation between political will and the validity of the law. Schmitt believed that legal matters are inevitably subject to political contingency, so that the legitimacy of the law is not ultimately determined by universal ethical standards. He objectively endorsed the primary positivist claim that ‘law obtains legitimacy simply because of the fact that it has evolved into a certain positive form and that, supported by a state apparatus, it provides a concrete order of norms that shape and structure social expectations’.[74]
The Nazis were political agitators who knew very well how to exacerbate popular resentments by appealing to irrational sentiments. As noted by Laurence Rees, ‘it is almost impossible to overestimate the importance of enemies to Adolf Hitler. Enemies did not just feed the hatred he had felt at much of the world since his earliest years, but provided a much-needed bounding element for the first supporters of the Nazi party’.[75] Schmitt was useful in this respect because he had in his philosophical writings described the concept of ‘enmity’ as the most defining quality of politics. In the 1920s he developed a theory which legitimised these base sentiments by arguing that law and morals are the end products of the struggle between inimical groups for political supremacy. According to Schmitt,
The specifically political distinction underpinning political actions and motives is that between friend and foe. It corresponds in the realm of politics to the relatively independent contrasts in other realms: between good and evil in ethics, the beautiful and ugly in aesthetics, and so on. The [distinction between friend and foe] is self-sufficient — that is, it neither derives from one or more of these contrasts nor is reduced to them … [I]t can exist, both in theory and practice, without the concurrent application of other distinctions — moral, aesthetic, economic, and so on. The political enemy need not be morally evil or aesthetically ugly; he need not appear as an economic competitor, and it may even be very advantageous to do business with him. But he is the other, the stranger; and it is enough he is, in an especially intensive existential sense, someone different and alien, so that, in the event of a conflict, he represents the negation of one’s own being, and for that reason must be resisted and fought in order to protect one’s self-like (seinmässig) life-style.[76]
Schmitt actively collaborated with the Nazi regime between 1933 and 1936. Over that period he authored articles that supported emergency powers that authorised the government to suspend constitutional rights and freedoms. Under Article 48 of the Weimar Constitution, the President of the German Republic was authorised to rule by decree during times of emergency.[77] 
Following the burning of the Reichstag on 27 February 1933, President Hindenburg relied on emergency powers provisions to sign into law the notorious Reichstag Fire Decree.[78] Schmitt argued that this executive order provided extraordinary powers that were in principle devoid of any constitutional limits. This executive order suspended the basic right of the individual as set out in the Weimar Constitution, thus granting the national, Reich Cabinet, the power to enact laws which were deemed necessary for the protection of the German people.[79] What followed was the complete loss of individual rights as these were suspended ‘until further notice’.[80] For Schmitt, such suspension of rights was perfectly valid because, in his Political Theology, a book published in 1922, he had already explained that, in his opinion,
The nature of state authority is revealed most clearly in the state of emergency. Here the decision making and the legal norm diverge, and … authority proves that it need not have a basis in law in order to establish justice’. Once this state of emergency has been declared, it is clear that the constituted authority of the state continues to exist, which the law is placed in abeyance … The decision exempts that authority from every normative restraint and renders it absolute in the true sense of the word. In a state of emergency, the constituted authority suspends the law on the basis of the right to protect its own existence. [81]
The ‘legalised arbitrariness’ envisaged by the Nazi leadership was entirely justified on the basis of the regular re-enactment of emergency powers. The ex post facto Acts of July 1934, which happened between 30 June and 2 July 1934, were carried out under these emergency powers. The Night of the Long Knives, as the episode came to be known, can be explained as a series of political assassinations of Nazi figures associated with the Sturmanbteilung (SA), the paramilitary Nazi Brownshirts. At least 85 people died as a result of the crackdown, including the SA leader Ernst Röhm.[82] Hitler took personal responsibility for these assassinations and told the Reichstag: ‘If anyone reproaches me and asks why I did not resort to the regular courts of justice, then all I can say is this: in this hour I was responsible for the fate of the German people.’[83]
Although these people were executed arbitrarily and without due process, the Night of the Long did not really bother the legal profession. In fact, some lawyers like Carl Schmitt went so far as to provide legal justification for the killings. Hence, on 3 July 1934, a law concerned the supposed self-preservation of the nation was enacted retrospectively, which stated that ‘the measures taken on June 30, July 1 and 2, in order to suppress reasonable attacks, are declared legal.’[84] This meant that the regime could now be placed above the law. Schmitt, however, qualified that executive order as a ‘genuine jurisdiction not subject to justice but supreme justice in itself … Law is no longer an objective norm but a spontaneous emanation of the Führer’s will’.[85]
When Schmitt fell out of favour with the Nazi Leadership, he attempted to regain their confidence by writing legal articles supporting the expansion of the German national borders. From 1936 to 1945 Schmitt devoted most of his legal academic work to the area of public international law. Thus he developed the concept of the Grossraum or ‘large area’, which served to give legal justification for the expansion of German territory eastwards, and to subject and enslave the population of neighbouring nations. This concept of Grossraum was closely associated with the notorious Lebensraum, or ‘living space’ theory, in which the Nazis contended that life could be resumed as a constant struggle between the different races for ‘living space’.[86]
AS CAN BE SEEN, the atrocities committed by the Nazi regime cannot be isolated, like some sort of mere accident, from the prevailing philosophy of the powerful German legal profession. German lawyers were eager, even anxious, to legitimise a brutal regime which denied any ‘inalienable right’ of the individual against the all-powerful State. Those lawyers were hostile to liberal principles of the rule of law and generally welcomed the Nazi regime, in 1933. In many respects, lawyers played a decisive role in the decline of justice and equality in 1930s Germany.
To conclude, the contributions of the German legal profession were of inestimable value in the legitimisation of the Nazi regime. The German legal profession provided justification for the murderous actions of that regime, which otherwise would have been recognised as unlawful and devoid of constitutionality. Above all, the German legal profession supported the use of emergency powers that facilitated the ultimate denial of ethics and metaphysics in conceptualisations of the law, which eventually resulted in a lack of legal basis for lawful resistance against that totalitarian regime.
Comments are closed.
