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Hitler's Justice: The Courts of the Third Reich PDF

367 Pages·1991·65.711 MB·English
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• H i t l e r ' s u s t i c e The Courts of the '!'bird Reich • Ingo ¥iiller / Translated by Deborah Lucas Schneider Harvard University Press Cambridgc,Massachusctts 1991 Google Original from Digitized by UNIVERSITY OF MICHIGAN k \( "30 55 . M8 5 13 I :'., 9 I c.opyright C 1991 by the President and Fdlows of Harvard C.Ollcgc All rights rcscrvcd Printed in the United Starcs ofA merica 10 9 8 7 6 5 4 3 2 1 This book wu originally published FwdmM,rJ llnltm: Du a.t Vn:!J~mheit ,,_,.,,.J fllrir., by K.indlcr Verlag, ~ copyright C 1987 by Kindler Verlag GmbH, Munich. This book is printed on acid-free paper, and its binding materials have been chosen for strmgth and durability. of°"'Brm Lilmlry ~-in-P"'1lialtilm Dlllil Miillcr, lngo. Juristcn. [Furchtbarc English) Hitler's justice: The courts of the Third Reich / Ingo Miillcr; tnnslatcd by Deborah I nos Schneider. p. an. Translation of: Furchtbarc Juristcn. Includes bibliographical rcfcrmccs and inda. ISBN 0- 674- 40418- 1 (allt. paper) l. Jumcc, Administration of-Gcmwty- History. 2. Judges-Germany-History. 3. National socialism. I. Tade. KK3655.M8513 1991 347.43--dc20 (344.307) 90- 39068 CIP Google Original from Digitized by UNIVERSITY OF MICHIGAN To my friends MUI colleRgues Dian, Dianut, Fritz, Gcrd, Hans-Ernst, Heinrich, Helmut, Joachim, Johannes, Martin, Peter, Rudolf, Sven, Ulrich, Waldemar, and Werner Google Original from Digitized by UNIVERSITY OF MICHIGAN Google Original from Digitized by UNIVERSITY OF MICHIGAN Contents . Introduction by Dctlev Vagts IX I· Prologue 1 · "Tune to Raise an Outcry": German Judges Oppose the Forces of Reaction 3 2 · The Enforcement of Conformity 6 3 • The Judges of the Weimar Republic 10 191 Il · The Ger n,ao Systr:FJ, &om 1933 to 1945 4 · The Reichstag Fire Trial 27 t 5 • Jurists "Coordinate" ThcmscJvcs 36 6 · The Legal Sysl'Cm during the State of Emergency 46 7 · Treason and Treachery: Political Opp<»ition and the Courts SO 8 · Purges at the Bar 59 9 · Nm Jurisprudence 68 10 • Civil Servants Become the Fuhrcr's Political Troops 82 11 · Creation of the Concentration Camps 85 12 · "Protecting the Race" 90 13 · The Courts and Eugenics 120 14 • The Euthanasia Program 126 15 · "Defenders of the Law": The Supreme Court as a Court of Appeals 129 Google Original from Digitized by UNIVERSITY OF MICHIGAN 16 • Arbittary Decisions in Everyday Life 138 17 · The People's Court 140 18 · Summary Courts of the "Inner Front": Jurisdiction of the Special Courts 153 19 · "Conccting" Decisions: The Judicial System and the Police 174 20 · The Legal Officers' Corps: Military Courts in the Second World War 183 21 • Resistance from the Bench 192 m · The Aftermath 22 · Collapse and Reconstruction 201 23 · Restoration in the Legal System 208 24 • Coming to Tcnns with the Past 219 25 · The Opposition Goes on Trial Again 231 26 · Law Schools 235 27 · Punishing Nazi Criminals 240 28 • The Deserving and the Undeserving: Reparations for the Criminals and Their Victims 261 29 · Jurists on Trial 270 30 · Injustice Confirmed 284 31 • A Latter-Day "Condemnation" of Nazi Justice 290 32 • An Attempt at an Explanation 293 Notes 301 Bibliography 341 Index 343 Google Original from Digitized by UNIVERSITY OF MICHIGAN Introduction by Detlev Vagts This English-language edition of Ingo Muller's book offers the general reader an opportunity to survey the history of the German legal system during Hitler's rule, as well as before and after it. It tells a depressing talc, one that reminds us how fragile the safeguards of a civilized society can be in face of the powers of darkn~. It is particularly significant for judges and lawyers, who will be led to consider how much resistance a legal sys tem can put up against rampant misrule. It complements studies of the German medical and psychiatric prof~ions during this period. As one reads about the hesitant manner in which postwar Germany dealt with this past, one asks: What should have been done? How much punishment, how much housecleaning, of legal personnel would have been appro priate? An introduction to this work should accomplish three tasks. First, it needs explain to the English-speaking reader some things about the to German legal system-things the author could assume an audience of ed ucated Gcnnan lay people would understand. Second, it should point out more explicitly what aspects of this history arc enveloped in conttovcrsy in Germany nowadays, as distinguished from those clements on which there is general ag,ccmcnt. Third, it should indicate the various ways in which American and British lawyers have been involved, directly or indi rectly, with the history that is forth here. set Elements of the German Legal System People arc often tempted to assume that the German legal system is very much like the American and British systems. Similar-sounding terminol ogy helps disguise differences. In fact, one quickly secs when attending to Google Original from Digitized by UNIVERSITY OF MICHIGAN Introduction X a German trial how different the systems arc in many respects. To compli cate the matter, it is easy to swing to the opposite error: to conclude that they differ on all points and, in particular, that a civil law system such as the German provides none of the safeguards for the accused that the Anglo-American system offers. The following brief description of the Ger man system is designed to provide a bit of clarification. Although it is written in the present tense, it applies (except where otherwise indicated) not only to the legal framework in use today, but to the arrangements that prevailed under the Weimar and Nazi regimes as well. The German legal system comprises three levels of regular courts. At the ground level, there arc two courts. One is the Amtsgericht, here trans· lated as "Petty O>urt." It functions as a trial court with a jurisdiction that is limited to the less serious cases, both civil and criminal. More important cases arc tried in the first instance before a Lluuigericht, here translated as "U>unty O>urt." The O>unty O>urts also operate in some cases as the courts to which appeals from the Petty O>urts may be taken. From the O>unty O>urts, appeals go to the Oberlluutesgericht, or "U>urt of Ap peals." Each of these courts is designated by the name of the town or city where it sits. For historical reasons, the O>urt of Appeals for Berlin is termed the Ktunmergericht (literally, "Chamber O>urt"). The court of final appeal was called the Reichsgericht, or "Supreme O>urt." It was renamed the Bunllesgerichtshof, or "Federal Supreme O>urt," after World War II. At the same time, the function of deciding upon the compatibility of legisla tion with the new constitution was separately assigned to the BuruierPer fRSSU"IJSBericht, or "Federal O>nstitutional O>urt." Germany also operates specialized court systems for labor law, administrative law, tax law, and social security matters. During the Third Reich, there existed a so-called People's O>urt ( Volltsgerichtshof) and other special courts for the speedy and brutal disposition of political offenses. These courts arc constituted somewhat differently from their counter parts in the United States and Britain. The courts of fim instance, as well as the U>urts of Appeal, arc staffed by several judges, so that important trials arc presided over by a panel rather than by a single judge. American and British lawyers arc familiar with the practice according to which ap pellate courts sit in panels. The German practice is different, in that a panel remains of the same composition for protracted periods rather than rotat· ing from week to week. And the panels arc characteristically divided into civil and criminal groupings. The panels produce written opinions, but these do not bear the authors' names; and there arc no dissents. There arc official publicatiom of the opinions of the German Supreme O>urt, di vided into criminal and civil series. Some opinions of lower courts arc Google Original from Digitized by UNIVERSITY OF MICHIGAN • Introdudion D unofficially published and commented upon in legal journals. While Ger man lawyers reject the Anglo-American view of the binding effect of prec edent, the opinions of the Supreme C.ourt arc regarded as very important guides to the law. German courts have always functioned without a jury in the Anglo American sense. Some German trials arc held before prof~ional judges only. Others arc held before panels composed of regular judges and lay persons. The latter arc not legally trained; however, unlike Anglo American jurors, they arc not chosen at random but arc deliberately se lected for their supposed judiciousn~, and serve for long periods of time. Instead of receiving instructions on law from the judge and supposedly dealing only with questions of fact, the lay persons and judges deliberate /to_gcthcr. German judges, like their British and American counterparts, arc trained at law schools alongside students headed for private practice or bus~ or govcmmcnt work. But their later career path is different, branching off immediately after formal legal education. Thus, Gcrnaan judges arc not chosen for the bench after experience in the private bar but work their way up through the judicial system, starting as assistants in the Petty C.ourts and working toward a post on the Supreme C.ourt. Their career path is thus much like that of the lifetime civil servant. It is a matter of conjecture whether judges on the Anglo-American model would have resisted Nazi incursions any better than German jurists did. In several instances the newly created Federal C.onstitutional C.ourt, composed of specially appointed noncareer judges, has been able to distance itself from the Nazi past of the judiciary more successfully than have the regular courts. With respect to German lawyers, too, one must be alert to differences from Anglo-American patterns. Preparation for the prof~ion begins with attendance at a university; law students come directly from high school (Gy,,mt,sium) to kgal studies. Uni~ they arc interested in pursu ing an academic career, they gcncrally do not acquire a doctorate but pro c.ccd through two examinations, which arc by the state authorities and set not by the universities. An obligatory period of clerkship with courts, practicing lawyers, and govcmmcnt agencies completes the training. Some lawyers become "notaries"- a term that may evoke false comparisons in the American mind, since Americans know notaries only as routine wield ers of rubber stamps, whereas their functions in Germany include many of those entrusted to office lawyers or solicitors in the United States and Britain. German lawyers arc somewhat constrained in their representation oft he accused in criminal cases by the greater investigatory and examining Google Original from Digitized by UNIVERSITY OF MICHIGAN .. Introduction D1 role assigned to the judiciary and prosecution. Still, in the Weimar period quite a few lawyers succeeded in establishing themselves as important po litical trial counsel. The Gcnnan trial is, as a consequence of these differences, quite differ ent from an American or British proceeding. A German criminal trial docs not begin with an indictment by a grand jury but grows out of the inves tigatory proceedings of the state's attorney. Under the so-called legality principle, a Gcnnan state's attorney who receives convincing evidence that a crime has been committed is required to institute proceedings. "Prosc cutorial discretion" is alien to German theory. Whereas a British or Amer ican trial; when conducted before a jury, must start at the beginning (since the jurors arc as new to the case as the spectators), a German trial starts with the file. The trial is kept much more tightly under control by German judges, who do most of the examining of wiblcsscs and call for documen tary evidence .. They arc not the relatively passive umpires between con testing attorneys that one secs in courtrooms in the United States, and somewhat less often in Great Britain. Occasionally, a criminal case is tried before an appellate court-as in the case of the Rcichstag fire trial, which was tried before the Supreme C.Ourt itself. To some degree, the German legal system under the Weimar Republic had clements of federalism; under the Federal Republic, it has even more. One should not assume, however, that German federalism has the same features as its Canadian and American counterparts. Under Weimar, the governments of the constituent states (Liuuler) had significant powers with respect to the appointment of judges, law professors, and other legal functionaries. They were headed by governors who presided over cabinets much like prime ministers. In Weimar Germany, Prussia was by far the largest and most important Lluul. Nazism abolished the autonomy of these units and divided Germany into regions presided over by G4uleiter chosen by the Fuhrer. The autonomy of the Liuuler was enhanced in the constitution oft he Federal Republic. Prussia disappeared as an entity; that part which fell to the Federal Republic was divided into several Liuuler. German criminal and civil statues apply across the entire nation, as do the rules of civil and criminal procedure. The Gcnnan system of laws is supposed to be organized in general, all encompassing codes. The most significant of these arc the Civil Code, the C'.ommercial Code, the Criminal Code, the Civil Procedure Rules, and the Criminal Procedure Rules. All oft hese date back to the turn of the century or earlier. Efforts to draft a new People's Civil Code during the Nazi pe riod proved to be abortive. The National Socialist statutes considered in this book were not, in general, integrated into the respective codes but Google Original from Digitized by UNIVERSITY OF MICHIGAN

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