Justice Delayed: The Restoration of Justice in Bavaria under American Occupation, 1945-1949

186 Pages·1999·0.841 MB·English

by  Jeffrey S. Gaab

Justice Delayed
Studies in Modern European History
Frank J. Coppa
General Editor
Vol. 35
PETER LANG
New York • Washington, D.C./Baltimore (cid:127) Boston (cid:127) Bern
Frankfurt am Main (cid:127) Berlin (cid:127) Brussels (cid:127) Vienna (cid:127) Canterbury
Jeffrey S. Gaab
Justice Delayed
The Restoration of Justice in Bavaria
under American Occupation,
1945–1949
PETER LANG
New York (cid:127) Washington, D.C./Baltimore (cid:127) Boston (cid:127) Bern
Frankfurt am Main (cid:127) Berlin (cid:127) Brussels (cid:127) Vienna (cid:127) Canterbury
Library of Congress Cataloging-in-Publication Data
Gaab, Jeffrey S.
Justice delayed: the restoration of justice in Bavaria
under American occupation, 1945–1949 / Jeffrey S. Gaab.
p. cm. — (Studies in modern European history; vol. 35)
Includes bibliographical references and index.
1. Denazification—Germany—Bavaria. 2. Military government—Germany—
Bavaria. 3. Justice, Administration of—Germany—Bavaria. 4. Reconstruction
(1939–1951)—Germany—Bavaria. 5. Bavaria (Germany)—Politics and government—
1945– 6. Repeal of legislation—Germany—Bavaria. I. Title. II. Series.
DD801.B423G33 340’.3’0943309044—dc21 98-30522
ISBN 0-8204-4283-6
ISSN 0893-6897
Die Deutsche Bibliothek-CIP-Einheitsaufnahme
Gaab, Jeffrey S.:
Justice delayed: the restoration of justice in Bavaria
under American occupation, 1945–1949 / Jeffrey S. Gaab.
−New York; Washington, D.C./Baltimore; Boston; Bern;
Frankfurt am Main; Berlin; Brussels; Vienna; Canterbury: Lang.
(Studies in modern European history; Vol. 35)
ISBN 0-8204-4283-6
The paper in this book meets the guidelines for permanence and durability
of the Committee on Production Guidelines for Book Longevity
of the Council of Library Resources.
© 1999 Peter Lang Publishing, Inc., New York
All rights reserved.
Reprint or reproduction, even partially, in all forms such as microfilm,
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Printed in the United States of America

Acknowledgments
This study would not have been possible without an enormous amount
of financial, intellectual, and moral support. In 1989 the late Dr. Mar-
tin Broszat invited me to pursue the research for this work at Munich’s
famed Institut für Zeitgeschichte. At the same time, I was fortunate
enough to secure a very generous fellowship from the German Aca-
demic Exchange Service (DAAD) in Bonn. This fellowship allowed
me to spend the 1989–1990 academic year in Munich. At the DAAD
I am most grateful to Manfred Stassen, who was the director of DAAD-
New York at that time.
In Germany, I received the help and support of many scholars, and
I offer them again my thanks and gratitude. At the Institut für
Zeitgeschichte I am indebted to Lothar Gruchmann, Wolfgang Benz
and Ludolf Herbst. At the Bavarian State Archives I would like to
thank Drs. Saupe and Busley. A jurist and independent scholar who
has written about much of the period discussed in this book, Dr. jur.
Otto Gritschneder of Munich helped me in ways to numerous to men-
tion. He agreed to several interviews during which we discussed the
events, major players and the problems so central to the reestablish-
ment of justice in post-Hitler Germany.
In 1998 I was fortunate to receive a fellowship from the National
Endowment for the Humanities to participate in a seminar on eco-
nomic history at the University of Munich. This allowed to me to con-
sult the sources once again and to reexamine the economic status of
Germany’s legal professionals before 1933. For this fellowship I owe
thanks to Joseph P. Neville and Sheldon Hackeny of the NEH. My
special thanks go to John Komlos, director of the Center for Eco-
nomic History at the University of Munich, for allowing me the oppor-
tunity to pursue two months of research at the institute and the Uni-
VI Acknowledgments

versity, and for allowing me to try out my ideas on the seminar par-
ticipants.
Above all, I am indebted to my mentors who oversaw this work in
its original form as a dissertation at the State University of New York
at Stony Brook. I would especially like to thank Donna Harsch (now at
Carnegie-Mellon University), Herman Lebovics, Erich Lampard, and
Paul Chase. At Hofstra University, I need to thank David Cassidy who
not only read the original dissertation, but who also helped me through-
out the numerous revisions for the present monograph. I am thankful
to Dr. Frank Coppa of St. John’s University, editor of PeterLang’s
Modern European History series, and my publishers and editors at
Peter Lang Press. Lastly, I need to thank colleagues and friends who
offered important advice and support throughout the writing process
including Cheryl DeWitt-Taylor, Viki Janick and Larry Menna at SUNY
Farmingdale. Two of my best friends, James R. Corgee, and Jennifer
Muro, gave me spiritual and emotional support too valuable to be
adequately praised here: I couldn’t have done it without you.

Table of Contents
List of abbreviations ix
Introduction 1
Chapter One Justice in Crisis: German Legal Professionals
in the Empire and the Weimar Republic,
1871–1933 9
Chapter Two Justice in Terror: The Legal Profession
1933–1945 25
Chapter Three Justice in Chaos: Allied Planning for the
Legal System in the Immediate Postwar Period 39
Chapter Four Justice Emerging: The Reopening of the
Bavarian Legal System 53
Chapter Five Justice in Reverse? Weimar Revisited,
Personnel Problems and Constitutional
Safeguards 77
Chapter Six Justice in the Flesh: The Typical
Postwar Jurist? 93
Chapter Seven Justice in Training: The Reorientation
and Reeducation Program 107
Chapter Eight Justice on Trial: Postwar Jurists Confront
Their Past 117
Conclusion The Hard Road to Democracy 131
Notes 137
Primary Sources 171
Index 187
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Abbreviations
BHStA: Bayerisches Hauptstaatsarchiv (Bavarian Main State Archives,
Munich).
IfZg: Institut für Zeitgeschichte (Institute for Contemporary History,
Munich).
OMGUS: Office of Military Government of the United States for
Germany
OMGBY/OMGUS-B: Office of Military Government for Bavaria.
VfZg: Vierteljahrshefte für Zeitgeschichte (Quarterly Journal of Con-
temporary History, published by the Institute for Contemporary His-
tory, Munich).
Case Three: Volume Three of the Trials of the Major War Criminals
before the International Military Tribunal at Nuremberg, “The
United States vs. Josf Altstoetter, et., al.,” Washington D.C., 1951.

Introduction
The legal system is the primary guardian of a democratic society.
Democracy, after all, is a society based on the rule of law. The laws
and legal processes of a democratic society are designed to protect
the rights of the individual citizen against the arbitrary powers of the
state. Unfortunately, Germany’s legal culture developed differently than
in many Western nations. Rather than protect citizens against the state,
the German legal system, and the legal profession (especially judges
and prosecutors), gradually developed into an instrument with the
purpose of protecting the state from its perceived internal enemies.
This is especially true of the years 1933–1945, but it can also be said
for the years 1871–1933. For democracy to succeed in Germany af-
ter 1945, the entire political and legal culture had to be reoriented.
Therefore, it can be argued that Allied attempts to democratize post-
war Germany all rested upon how effectively they reformed the legal
system and reeducated the legal profession.
Justice Delayed examines the reconstruction of democratic soci-
ety in postwar Germany in terms of a crucial element: the restoration
of a functioning legal system in Bavaria, in the American zone of oc-
cupation. At Potsdam in the summer of 1945, the Allies declared
that the judicial system would be “reorganized in accordance with the
principles of democracy, of justice under the law and of equal rights
for all citizens without distinction of race, nationality or religion.”1 At
the same time, Joint Chiefs of Staff Directive (JCS) 1067 of April
1945 ordered the removal and arrest of whole categories of persons
Military Government believed potentially hostile to the occupation.2
Germans, too, realized the role an independent judiciary could play
in a democratic society, but in 1945 the experience most fresh in
everyone’s minds was the role the judiciary played in sabotaging the
2 Introduction

Weimar Republic, Germany’s first experiment with democracy 1919–
1933. During the Imperial era, 1870–1918, the legal profession be-
came the exclusive domain of conservative, illiberal forces. After 1918
the founders of the Weimar Republic made little attempt to reform the
conservative character of the judiciary or public prosecutors. Bemoaning
Germany’s defeat in the First World War and the fall of the German
Empire in November 1918, the judiciary, indeed much of the bureau-
cracy that remained after 1918, despised the new republic and its
socialist founders whom the right-wing opposition termed the “No-
vember Criminals”. Extreme nationalism and conservatism character-
ized justice in the Weimar Republic. Right-wing “nationalist” offend-
ers most often received the minimum sentence allowed under the law,
while left-wing defendants almost always received the maximum sen-
tence allowed.
Unfortunately, many of these same legal practitioners continued to
serve throughout the Third Reich and remained on the bench and at
the bar after 1945. The experience of the Weimar Republic demon-
strated that systemic innovations alone could not guarantee a liberal-
democratic jurisprudence. In other words, simply imposing a demo-
cratic constitution from the top down was not good enough. The legal
profession, which had sabotaged the republic right up to Hitler’s ac-
cession to power in 1933, had to be reformed from the ground up.
Military Government had to accomplish this reformation with legal
personnel trained in the Empire and the Weimar Republic, many of
whom still held political views contrary to Military Government objec-
tives. After 1945, the problem became reopening the legal system
and rehiring many of the questionable personnel Military Government
wanted to exclude, while at the same time protecting the newly emerg-
ing democratic society.
The central question this book seeks to answer is why did the same
“Weimar Experience” not reoccur after 1945? Why were those that
were hostile to democracy in 1919–1933, reconciled to democracy
after 1945? How did this reconciliation take place? This study will
examine the reconstruction of the legal system (the courts), the at-
tempted denazification and reeducation of legal professionals (judges
and prosecutors) and attempted revisions of German law and legal
practice. The first task was easy. After abolishing all National Socialist
“Special Courts,” and after removing or negating most National So-
cialist laws, the Western Allies reestablished the legal system that had
existed in Germany before 1933.