Hitler's Justice: The Courts of the Third Reich

367 Pages·1991·65.711 MB·English

by  Ingo Müller

•
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
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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,
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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
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To my friends MUI colleRgues
Dian, Dianut, Fritz, Gcrd, Hans-Ernst, Heinrich, Helmut,
Joachim, Johannes, Martin, Peter, Rudolf, Sven,
Ulrich, Waldemar, and Werner
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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
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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
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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
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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
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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
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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
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