Historians and legal theorists have suggested a range of sometimes complementary, sometimes contradictory reasons to explain why judges, prosecutors, and other officials of the German administration of justice proved willing both to persecute the various enemies of the Nazi state and to tolerate the many extralegal murders and lesser brutalities of other organs of the regime. [1] One line of interpretation, dominant until the late 1960s, stressed the importance of the tradition of legal positivism. Believing themselves bound to the letter of the law, courts and prosecutors obeyed politically and racially repressive laws without asking moral questions. [2] An alternative and opposing explanation emphasizes instead the justice administration’s willingness to stretch the letter of the law to conform to “spontaneous popular sentiments of right.” According to Roberto Unger, it was German courts’ increasing reliance during the Weimar period on “purposive modes of legal reasoning and … concerns with substantive justice,” their willingness, for example, to revalue debts whose worth had been destroyed by the hyperinflation of the early 1920s to protect middle-class interests, that led to a declining regard for the public and positive character of the law. [3] In this view “the German case may also serve to point out the enormous dangers to freedom involved in the decline of the legal order and the high risks critical intelligence runs when it attacks the idea of positive law….” [4] A third approach, proposed more recently in Lothar Gruchmann’s massive study of the Reich Justice Ministry, concludes that the administration of justice as a whole remained loyal to the ideal of the rule of law. [5] If the administration of justice often acceded to demands that it bend the law, this was because it constantly lost power struggles with more radical institutions within the regime and because its own anti-republican and nationalistic views prevented it from challenging the legitimacy of the regime as a whole. The administration of justice “attempted, by adaptation and concessions—which necessarily involved the sacrifice of rechtsstaatlich principles—to defend its role in the maintenance of the legal order, but became in this way an instrument of [the] regime….” [6]
This academic debate had certain practical implications specific to postwar West Germany. The initial emphasis in the scholarship on the influence of legal positivism reflected in part the interests of many former Nazi judges, prosecutors, and other officials. The assertion by these civil servants that they had only carried out the laws in effect during the Nazi period helped ward off uncomfortable questions regarding their own views of the regime or the extent of their active contributions to it. A demonstration of adherence to the published laws of the regime also generally served as a defense against prosecution or other disadvantagement, at least after the period of occupation ended. The constitution of the Federal Republic, like the American constitution, prohibits the punishment of acts not a criminal offense when committed, and this clause was often interpreted as blocking the punishment of conduct mandated by Nazi statutes. [7] In the same spirit, a 1957 West German law made a showing that a former Nazi official had violated the principles of legal order—Rechtsstaatlichkeit—to achieve the Nazi regime’s purposes, a basis for depriving the official of rights to a pension or state employment. [8] Even with respect to individuals who had violated the letter of published Nazi laws to achieve the regime’s aims, however, the state in practice only pursued those whose conduct had been especially brutal, or who had in some way betrayed their own colleagues, or who were the subject of stories in the press. And even in these cases, enforcement was spotty at best. [9]
Both the theoretical and the practical aspects of the focus on the role of legal motives in explaining the conduct of the Nazi administration of justice reflect the central role legality (defined in various ways) has played in German conceptions regarding the modern state. Adherence to legal forms has often been seen as a key basis for the legitimacy of governments. [10] As a result, the term Rechtsstaatlichkeit has been burdened with a range of meanings. [11] It was coined in the first part of the nineteenth century to refer to a state with a constitutional form of government, guarantees of individual rights, an independent judiciary, and a commitment to following legal procedures in dealing with citizens. By the end of the nineteenth century, however, it had increasingly come to refer to any legal order, that is, any system of state rule relying on the use of general and predictable rules. How flexible the meaning of “Rechtsstaat” had become by the 1930s is suggested by the heated debates among leading Nazi legal theorists during the first years of the regime over whether the new state should be characterized as a “national Rechtsstaat.” [12] As this debate also demonstrated, however, the term Rechtsstaat never entirely lost its liberal connotations. “The Rechtsstaat always seeks to limit and contain the power and supremacy of the state in the interests of individual liberty.” [13]
What is at issue, then, is what role legal ideologies played in determining the behavior of German jurists active in the Nazi regime and also what relationship these ideologies had to Rechtsstaatlichkeit, as it has been variously defined. More generally, an examination of the influence that legal ideologies in Germany exerted, or failed to exert, in this most extreme of tests may help us better understand the true ordering of priorities they entailed and the extent to which they were subordinate to other objectives, personal, institutional, and political.
The figure on whom this article focuses, Franz Schlegelberger (1876-1970), was state secretary in the Reich Justice Ministry from 1931 to 1942, the senior civil servant in the ministry, and a prominent defendant in the postwar American Military Tribunal trial at Nuremberg known to history as the “Justice Case.” He is familiar to Americans primarily through the film Judgment at Nuremberg, a fictionalized account of this trial. Because Schlegelberger was a prominent figure, and because he was tried after the war in a lengthy proceeding, a detailed and public record exists with respect to his conduct and views, something that is true of only a few of the jurists who served the Nazi regime. [14] While no single person can typify the full spectrum of motives and beliefs that characterized the German administration of justice, Schlegelberger’s views were certainly representative of those of many jurists.
I. Franz Schlegelberger and the Ideology of Authoritarian Legal Order
Franz Schlegelberger was born in Königsberg in 1876 to a Protestant merchant family. He studied law in Königsberg and Berlin and upon graduation selected the path that led to the judiciary. Before the age of thirty he became a member of an intermediate court, the Landgericht, and in 1914 was promoted to the Kammergericht, the supreme appellate court in the Berlin region. When he joined the Reich Justice Ministry, or Reichsjustizamt, as it was then known, in 1918, it served primarily to draft legislation; most of the other functions of the administration of justice were carried out at the state level. Schlegelberger was promoted to the rank of Ministerialdirektor, or department chief, in 1927, and then, in 1931, became state secretary. Among his many accomplishments in the Justice Ministry was the drafting of part of the legislation that created a new, more stable national currency in 1923, thus ending the hyperinflation that had led to what Unger terms a judicial disregard for positive law. From 1922 Schlegelberger taught at the Law School of the University of Berlin as an adjunct professor (Honorarprofessor). That Schlegelberger’s career was extraordinarily successful reflected not only his considerable legal talents, but the extent to which he shared the professional ethos, and political views, dominant in the administration of justice.
His position as an official interpreter and then drafter of laws strongly colored Schlegelberger’s professional and political outlook. [15] The strength of his commitment to the judiciary is suggested by a comment he made in an article published in 1928: “I was myself a judge for many years, and those who know me understand that the love and respect that I feel for the judiciary can hardly be exceeded.” [16] His attitude regarding the crafting of legislation was almost as reverential. He described lawmaking in an article published in the mid-1930s as almost a religious calling. [17] How Schlegelberger viewed the proper relationship between state and society is suggested by one of his favorite quotations, from Plato’s Republic (in German the work is known as “The State”): “our laws do not aim at making one class especially happy. They search for the means of making the state as a whole happy. That is why they bring citizens into harmony with one another, with kindness and with force: they give all a share in the achievements that every individual performs for the state.” [18] The image was that of a state dominating society through the law.
An “authoritarian legal order” best describes Schlegelberger’s conception of the ideal state. In part this follows Schlegelberger’s own usage: his writings at various points refer to the ideal of a “legal order” (Rechtsordnung). [19] Although Schlegelberger may have employed the term “Rechtsstaat” before 1945 to describe his legal ideals, I have not discovered it so used in any of his pre-1945 writings or speeches. [20] Schlegelberger was not one of the Nazi legal theorists, a group marginalized in the mid-1930s, who employed the term in the early years of Nazi rule to describe the goals of the regime. [21] Perhaps the liberal pedigree of the term Rechtsstaat, its connotation that the state should guarantee individuals a broad range of individual rights and that it should refrain from requiring citizens to conform to particular religious beliefs or moral ideals, made it unpalatable to Schlegelberger. Schlegelberger’s speeches and articles before, and especially during, the Nazi period repeatedly attacked “individualism,” by which he meant the pursuit of individual desires at the expense of the whole community and the legal protections that permitted the untrammeled pursuit of individual interests. [22]
During the Weimar Republic Schlegelberger employed his ideal of authoritarian legal order as a basis for criticizing the republican form of the state. The fundamental problem was that the state did not dominate society, but instead was dominated by it. In a 1928 article Schlegelberger complained that the law was no longer respected, for which he blamed the institution of the parliament.
Every right-thinking person recognizes that every legislative proposal [by the ministries] is based on a careful weighing of competing considerations and is the expression of an ordered chain of thought. To break this chain with a rough hand, as the result of some brainstorm, by making a proposal regarding area “a” that, unbeknownst to its proposer, belongs to area “x,” is dilettantish, and prevents the creation of a law that is organic and commands respect. [23]
In these comments Schlegelberger cast himself and his fellow civil servants in the role of neutral experts whose authority was, or should be, recognized by “every right-thinking person.” They were the upholders of the legal order, which was threatened by an irresponsible and irrational parliament and party system. [24] Even after the Second World War Schlegelberger employed the image of incompetence in lawmaking in explaining, and justifying, the effective elimination of the Reichstag in 1933: ” … the difficult apparatus of the Reichstag worked too slowly, and one had to create legislation rapidly,” he told a postwar tribunal. [25]
II. The Ideology of Authoritarian Legal Order and the Nazi Regime
In postwar memoirs intended for his family, Schlegelberger wrote that he “did not have the slightest doubt [in 1933] about placing myself at the disposal of the new Reich government as it was then composed.” [26] This acceptance of the regime’s legitimacy was in part a consequence of the continuing role of President Paul von Hindenburg, who both appointed Hitler as chancellor and approved the legislation by which the republican constitution was abrogated. [27] As his comments regarding the Weimar Republic suggest, Schlegelberger had little use for the institution of the parliament, or, therefore, the legitimizing power of elections: the fact that Nazi dominance of the Reichstag was a product of violence and intimidation during the election of March 5, 1933, and the arrest of all the Communist deputies who could be found and some of the Social Democrats as well, appears not to have had much effect on his view of the legitimacy of the regime. In 1935, in an article published on Bismarck’s birthday, he lauded the suppression of the political parties and the effective elimination of parliament. [28] But this would have been impossible to accomplish through methods consistent with the Weimar constitution.
In early March 1933, before Hitler consolidated his power, Schlegelberger made one clear attempt to force him to adhere to traditional legal principles. In several cabinet meetings where he represented the Justice Ministry—Justice Minister Franz Gürtner was ill—he attempted to prevent the adoption by the cabinet of legislation retroactively imposing the death penalty for arson on the individuals accused of setting the Reichstag building afire, a measure demanded by Hitler for propaganda purposes. The Nazis blamed the burning of the Reichstag building on the Communists, and the fire had served as a pretext for the issuance of a presidential decree that suspended a host of civil liberties. Schlegelberger appealed to a legal principle that is fundamental to all legal orders. “[I have] to point with great emphasis to the norm nulla poena sine lege [no punishment without a law],” he told the cabinet on March 7. “Only in Russia, China, and a few small Swiss cantons does this norm not apply.” [29] Schlegelberger noted in a memorandum distributed to various ministers and to President Hindenburg that the legal principle of nulla poena sine lege was a critical part of the Weimar Constitution. “The giving up [of this principle] must necessarily lead to a confusion of the general sense of law.” [30]
Schlegelberger’s defense of the maxim nulla poena sine lege was not only a matter of principle, but was intimately connected to his concern for the authority of the administration of justice and, in particular, for that of the judiciary. He pointed out in his memorandum to the different ministers and to President Hindenburg that the courts might refuse to recognize the validity of retroactive punishment, even if it took the form of a decree issued under the president’s emergency powers, since the prohibition against retroactive legislation was part of the Weimar Constitution (Article 116) and was not among the provisions that the president was able to suspend. [31] Apparently he feared that the retroactive legislation of the death penalty for arson might lead to a conflict between the courts and the new regime, a conflict that was likely to damage the courts. [32] The suspension of the Weimar constitution at the end of March 1933 eliminated the constitutional basis for Schlegelberger’s objections and for his fears that the courts might refuse to enforce the law. It also made clear that Hitler was going to be in power for some time. The Reich Justice Ministry made its peace, if uneasily, with retroactive legislation.
Schlegelberger’s willingness to accept Hitler’s use of extralegal measures to consolidate his power also appears in his response to the killing of some hundred SA leaders and other individuals between June 30 and July 2, 1934, a turning point in the history of the regime. In response to growing discontent within the SA, the main paramilitary arm of the Nazi Party, at its subordinate position in the regime, Hitler ordered his elite guard, the SS, to execute scores of SA leaders and other potentially dangerous individuals, including a former chancellor, General Kurt von Schleicher, his close associate General Kurt von Bredow, and the prominent Catholic leader Erich Klausener. While it seems likely that Schlegelberger found the killings of the non-SA members both disturbing and intimidating, his enthusiastic speeches regarding Hitler and the regime in the years that followed are strong evidence that his anguish over the matter was limited. After the war he characterized the killing of the SA leadership as a legitimate response to the danger of an imminent revolt. The law that retroactively sanctioned the killings “was absolutely justifiable, because revolt meant a state of emergency,” he told the International Military Tribunal at Nuremberg. [33] That the SA had been perhaps the most revolutionary and violent element of the new regime doubtless played an important role in his acceptance of the killings.
A significant part of the regime’s attraction for the Schlegelbergers of the civil service was the elimination of parliamentary oversight over legislation. Now the ministries alone, with cabinet approval, could draft and enact laws. “The civil servants of the Ministry do not allow themselves to be pushed into legislation for the moment (Gelegenheitsgesetzgebung) by articles in the press, by propaganda, or by isolated cases,” Schlegelberger informed a committee of the Akademie für Deutsches Recht in November 1934. [34] The Nazi regime could “legislate with boldness, quickness [and] richness.” [35] The absorption of the different state justice ministries by the Reich Ministry of Justice in 1934 and 1935 further enhanced Schlegelberger’s status and his power to accomplish his legal and administrative objectives. This enhanced power was doubtless another attractive feature of the new order. [36]
For these reasons and because of the regime’s apparent success in reducing unemployment and breaking the bonds of the Versailles Treaty, and because of Hitler’s willingness to protect the Justice Ministry from attacks by Nazi Party officials, Schlegelberger’s speeches and writings came by the mid-1930s to reflect enthusiasm for the regime and confidence in Hitler. Typical was a speech made to local judges and prosecutors in Magdeburg in March 1936. Schlegelberger told his audience that “our task is to lift up our nation, and make it capable of loyalty to a great leader. Merely being present is not enough: one must actively help with the job….” [37]
Although Schlegelberger came to accept, with reluctance, the employment of retroactive legislation, he continued to insist that courts adhere to officially promulgated laws and procedures, the foundation of the hierarchical structure that created the basis for uniformity in the administration of justice and that underlay the judiciary’s special claim to authority. He accepted that existing laws had to be interpreted in the spirit of the new regime: “in applying and interpreting every norm of existing law consideration must be given to the moral order and Weltanschaung (world view) stated in the [Nazi] Party Program,” he said in a 1936 speech. [38] But this did not mean that judges could disregard the clear language of the law, as certain more radical Nazi jurists argued. “The judge must apply the law so long as the state keeps the law in force. He must fill it with the new thoughts, but it is not for him to refuse to apply it because he believes it should be repealed.” [39] And even more forcefully: “Nothing is more contemptible, and for the well-being of the nation more disastrous, than when a judge allows himself to be led by the desire for applause…. He who perverts justice is despicable and will be despised.” [40] Schlegelberger even intervened personally in particular cases early in the regime when he thought judges had strayed from the law. In 1935 two courts refused to follow a law that permitted indigent clients to select Jewish attorneys. Schlegelberger responded with stiff notes to the presidents of the responsible district appeals courts: “I would like an explanation from the President of the Chamber regarding the ‘instructions from above’ that he [the judge] had in mind and the rules he believed required him to derive therefrom a restraint on his judicial judgment.” [41]
Since he insisted that the courts continue to apply the letter of the law, Schlegelberger’s efforts to protect the judiciary often took the form of creating legal means to accomplish the regime’s objectives. “It represents a displacement of responsibility when one blames a judge for a decision that a poor or incomplete law required him to make,” he said in a speech in the spring of 1934. “Good legislation is the necessary precondition for a judiciary with high standing, one that is respected by the nation.” [42] In 1937 Schlegelberger proposed a thorough revision of the civil code, with the goal of protecting certain of the values of “ständisch” society seen as threatened by capitalism, including honor, loyalty, attachment to the land, and so forth. [43] After the anti-Jewish pogrom of November 1938, in confidential inner-ministerial memoranda, he advocated consideration of rules that would have made the Jewish community as a whole liable for debts individual Jews owed “Aryan” Germans. In roughly the same time period he urged that children of German Jews no longer be granted German citizenship: “the entire development pushes towards removing the Jews from the community of the German people.” [44]
Schlegelberger’s concern for the well-being of the judiciary often found expression in efforts to protect judges from the threat of removal from office. At both the beginning and end of his career as a civil servant in the Nazi regime, Schlegelberger appealed directly to Hitler to protect judicial tenure. In the spring of 1933 he wrote to Hitler twice, on behalf of the Reichsgericht (the highest regular German court) and the executive committee of the bar of the Reichsgericht, praising a passing reference to “the right of the judge not to be removed from office” in one of Hitler’s speeches. [45] His last interview with Hitler, upon his retirement as acting justice minister in August 1942, had the same theme: “I took the opportunity to tell Hitler openly that an intact, independent administration of justice was a question of life and death for Germany … and that his intention to fire judges who had [only] done their duty was an impossibility.” [46] He repeatedly attempted to protect judges from dismissal, although he came to accept that many Jewish judges would have to be compelled to retire. [47] Schlegelberger’s efforts to protect the security of judicial tenure doubtless reflected in part his sense that the firing of judges would lead courts to follow public opinion and directives from above in deciding particular cases. But consideration of the effects of insecure judicial tenure on the standing of the judiciary and on the judges themselves certainly played central roles as well.
III. The War
Schlegelberger’s ability to perceive himself, and the administration of justice, as engaged in protecting the rule of law reached its limit during the war. Shortly after the German invasion of Poland, Justice Minister Gürtner remarked, in a speech before a group of high judges and prosecutors, that
the strongest communal experience of a nation is war. It has always been so and today it is even more so. In war we demand of the soldier ruthless, unhesitating commitment of his own person and life for the defense of his nation. At home as well personal destiny must, in wartime, be ruthlessly subordinated to the idea of the defense of one’s own people. [48]
Schlegelberger shared these views. The laws of wartime, he wrote in Deutsche Justiz on December 21, 1939, had little to do with ideology, but were rather “determined by the sober reality of a nation fighting for its existence.” [49] The view that in wartime each individual had to subordinate himself entirely to the demands of the state was reflected in Schlegelberger’s proposal in early March 1940 that lawyers, like civil servants, be formally subject to release from their profession if they could no longer guarantee that they would at all times without reservation support the National Socialist state. [50] Hitler’s military successes further weakened any inclination to resist the demands of the dictator. [51]
Schlegelberger’s response to Hitler’s brutal policies during the war followed a fairly clear pattern: a few examples will suffice. He generally attempted, in a restrained way, to persuade Hitler or other radical elements in the regime to moderate especially murderous policies. At the same time he suggested that the administration of justice could achieve their larger goals. When, as was usually the case, his attempts to alter the regime’s policies failed, he loyally performed what was asked of him. Whether because he considered wartime a period of emergency permitting the head of state virtually unlimited power, or because he had, by 1939, come to accept that all of Hitler’s orders had the force of law, or because acceptance of Hitler’s dictatorial powers was a condition for remaining in office, or for all these reasons, Schlegelberger accepted the dictator’s commands, whether public or secret, as legal and binding. During the war he created a system for monitoring judicial decisions for compliance with Hitler’s demands for harsher punishments and repeatedly ordered judges to increase the severity of their verdicts.
Both feeble efforts at protest, and ultimate obedience, are illustrated by Schlegelberger’s response, as acting minister, to Hitler’s periodic demands that particular inmates in Justice Ministry prisons be handed over to the police for execution. In one of his first letters to Hitler in his capacity as acting minister, in March 1941 (Gürtner died in January 1941), Schlegelberger attempted to persuade the dictator to rely on the Justice Ministry when a verdict displeased him. The letter illustrates the obsequious tone that characterized all of Schlegelberger’s correspondence with Hitler following his appointment as acting minister. “It would be invaluable if you, my Führer, would decide to bring it to my attention if there is a judgment with which you disagree. The judges are responsible to you, my Führer.” [52] Schlegelberger assured Hitler that if he, Hitler, concluded that a case had been incorrectly decided by a court, the Justice Ministry could correct the decision itself, without—although this implication was not directly stated—the involvement of the police. For his trouble Schlegelberger obtained an informal promise from Otto Meissner, the head of Hitler’s Presidential Chancellory, that the Chancellory would consider showing Hitler any exculpatory material the Justice Ministry succeeded in collecting in the hours after it received an order to turn a prisoner over to the police for execution. [53]
Schlegelberger’s response to the large-scale murder of handicapped people followed a similar pattern and makes clear his acceptance of the legality of any order issued by Hitler. Hitler’s secret euthanasia program began in the spring of 1940, and the public soon became aware of the killings, despite efforts at concealment. Protests also reached the Justice Ministry from its own officials. In July 1940 Gürtner, who had never been notified of Hitler’s authorization of the program, asked the Reich Chancellory either to issue a public law authorizing the killing, or to stop it. The following month he received a copy of Hitler’s secret authorization letter and thereafter ended all resistance. Gürtner dismissed a judge who had sent notices to various institutions that housed disabled persons warning them against transferring individuals who were his wards. A judge who did not recognize Hitler as the source of the law could not remain in office, Gürtner told him. [54]
Schlegelberger essentially pursued Gürtner’s course. In March 1941 he sent the Reich Chancellory protests the ministry had received over the previous few months and in a letter summarized the difficulties caused by the secret killings. He noted that prosecutors who were unaware of the killings sometimes prosecuted people who were no longer living, and that judges who were guardians of patients in institutions were disturbed at being unable to locate their wards. Prosecutors were unable to pursue individuals who criticized the regime on the basis of the euthanasia program, since trials would have endangered the secrecy of the program. “Large numbers of people in all parts of the Reich are most deeply disturbed about the measures,” concluded Schlegelberger. [55]
Since Hitler was unwilling to end the murder program, Schlegelberger proceeded to forestall possible attacks by the courts. In April 1941 he told a meeting of high court judges and prosecutors that, although secret, the program was legal. “You must know facts, not only rumors. If this does not happen, then it is unavoidable that judges and prosecutors, to the great detriment of the judiciary and the state, work against measures which they sincerely, but falsely, consider illegal, and innocently place themselves in contradiction to the will of the Führer.” [56] With this conference, and subsequent oral guidance to subordinate courts and prosecutors, Schlegelberger apparently considered his duty done.
Despite the justice administration’s general willingness to comply with the orders given it, its lack of enthusiasm for certain of the measures, its inability (and often unwillingness) to match the brutality of the SS, and its insistence on following certain standard procedures, including the form of a trial, meant that it never was among the favored institutions of the regime. In early 1942, following the military setbacks of the winter campaign in Russia, Hitler made the justice administration one of the targets of his anger. In March 1942 the dictator telephoned Schlegelberger, harshly attacked a verdict he considered too lenient, and demanded greater severity. Schlegelberger attempted, at a meeting of senior judges and prosecutors on March 31, 1942, to push the administration of justice in the direction Hitler had demanded. “All of the administration of justice is a political activity,” he told the assembled officials, quoting the nineteenth-century German historian Heinrich von Treitschke. [57] “The demand of the Führer for the hardest punishments,” he continued, “is for the judge an order that he must follow. It is, gentlemen, because this is so often misunderstood, the judge not seeing his activity as political activity, that he does not judge in the spirit of the National Socialist state, and here lies the deepest cause of this crisis.” [58] Schlegelberger then described two recent cases in which Hitler had ordered the execution of defendants who had received prison terms from the courts. “Gentlemen,” he concluded, “I must demand from you that you vigorously see to it that there are no more such [lenient] verdicts…. ” [59]
The assertion that judging was a “political activity” was an extraordinary admission from someone who had always prided himself on the “unpolitical,” “professional,” character of his work. The German word political has a far stronger negative connotation than the English cognate, implying partisanship and self-seeking. When Max Weber wrote that the defining characteristic of politics is the pursuit of domination through violence or the threat of violence, and that the political community is an institutionalized version of a robber band, he only crystallized sentiments widespread in the intellectual air of Wilhelmine Germany. [60] Carl Schmitt’s Der Begriff des Politischen, written near the end of the Weimar Republic, also appealed to widely held conceptions in making murderous enmity toward foreigners an existential necessity of politics. [61] Was Schlegelberger’s call for political justice simply a response to the immediate crisis, or, as it appeared to be, a confession of a truth that had long been hidden? One suspects both interpretations have some truth. That Schlegelberger phrased his demand for more brutal judgments as he did indicates his belief that many judges continued to view their work, even in 1942, as “unpolitical.” On the other hand, he was prepared to treat this as a facade and evidently thought his appeal would be effective.
After the end of the war Schlegelberger again assumed the mantle of neutral professionalism that he had, for a moment, let slip. He argued that, while in office, he had simply followed, and striven to uphold, the law. His call for politicization of adjudication in March 1942 was so unvarnished that his attorney in an administrative proceeding in the late 1950s claimed—presumably with Schlegelberger’s knowledge—that the statement had incorrectly been attributed to him. [62] The extent to which his self-conception as an objective legal professional dominated his understanding of his actions—or, at any rate, his presentation of them—is suggested by his own account of how he left office, an event that occurred in August 1942. To the bafflement of Allied prosecutors and judges, Schlegelberger emphasized that he had not resigned, but had been let go by Hitler. This was, for example, Schlegelberger’s position under cross-examination at the International Military Tribunal trial:
DR. KEMPNER (Prosecutor): How is it then with you yourself, Dr. Schlegelberger; did you not resign?
SCHLEGELBERGER: It is not so easy to answer this question.
DR. KEMPNER: When did you leave your office?
SCHLEGELBERGER: In August 1942 I was released by the Führer. [63]
The only excerpt from Schlegelberger’s own memoirs that his family has permitted to appear in print deals with the same question and shows Schlegelberger’s firm attachment to this explanation of his conduct.
At this point I would like to take up the question that has repeatedly been put to me, how it can be explained that I, despite my criticisms of Hitler, outlined below, only in 1942 left the office of State Secretary in the Reich Ministry of Justice. The question is wrongly put. It assumes that I could have freely decided, when it became convenient for me, to leave this office. This is not correct. As in the case of every other Civil Servant, a State Secretary has the right to leave office only when he becomes incapable of performing his work. The only instance in which a State Secretary can decide to leave office is when there is a change of Ministers. I used this opportunity when it first appeared, in the summer of 1942…. [64]
Schlegelberger’s legal claim here was specious. Even he had admitted during his trial that before 1939 he had had the legal right to resign. [65] But his depiction of why he retired speaks volumes about his state of mind, about what he considered proper. To have resigned of one’s own volition, to have deserted the ship, would have been unprofessional. What was required was a neutral, “apolitical,” legalistic explanation. His description of how he came to retire made issues of ethics and volition subordinate, if not irrelevant, and stressed his adherence to the letter of the law. Schlegelberger persisted in this story even though he might easily have focused instead on his repugnance at the regime’s brutality, an interpretation that certainly would have reflected at least some of his immediate interests. [66]
The American Military Tribunal that tried Schlegelberger either did not understand or did not accept his own account of his resignation and constructed a more heroic one in its place, one that emphasized his repugnance at the evil he had done. Although the court sentenced Schlegelberger to life imprisonment for his actions as acting minister of justice, it called him a tragic figure, based on its conclusion that he had resigned because “the cruelties of the system which he had helped to develop were too much for him.” [67] This is, in general, how Schlegelberger has been remembered since the trial.
IV. Epilogue
Schlegelberger’s fate ultimately differed little from that of his colleagues. He was released after three years in prison, a beneficiary of cold war tensions that led the American high commissioner for Germany to free most of those convicted by American tribunals before the expiration of their sentences. In 1951 he was placed in the least culpable category, “entlastet” or discharged, in denazification proceedings. Shortly thereafter he received a full pension. [68]
After his release from prison Schlegelberger resumed writing legal treatises. Updated editions of his commentary on commercial law, and of his legal dictionary, are still in wide use in Germany. In 1959 and again in 1965 West German prosecutors attempted to indict Schlegelberger for crimes he committed while a high Nazi official. In both instances courts ruled that he could not be tried, since the American Military Tribunal had previously considered the same charges. [69]
In 1959 the government of Schleswig-Holstein terminated Schlegelberger’s pension on the grounds that he had acted in ways that contravened “Rechtsstaatlichkeit.” Schlegelberger challenged this decision and initially succeeded in having his pension reinstated. This decision was overturned by an appellate administrative court, a verdict Schlegelberger appealed to the highest administrative court in Berlin. [70] Ultimately a compromise was reached between Schlegelberger and the state. [71]
V. Conclusions
If Schlegelberger had had the opportunity to construct his ideal state, there is little doubt that it would have acted—except in emergencies—through laws adopted by regular administrative procedures and that an independent judiciary would have determined the applicability of the laws to individual cases. His speeches, articles, and memoranda repeatedly express anxiety about actions by state actors that are not controlled and ordered by rules: “it seems to me doubtful to continue treating these questions case by case and separate from each other” is a refrain that constantly reappears. [72] The orderly and hierarchically functioning state was at the heart of a system of beliefs that reflected Schlegelberger’s political philosophy, professional interests, and even, one might say, much of his personal identity. That he and the institutions to which he belonged were responsible for drafting laws was another reason he wished to see them obeyed. They were his laws. [73]
It was in part because he wanted a Germany governed by an authoritarian legal order that Schlegelberger came to be an enthusiastic supporter of the Nazi government. The Nazi state appeared to him far more orderly than the chaotic Weimar Republic. It suppressed parliamentary parties that fought for a range of divergent interests, as well as independent unions and other representatives of group interests (especially on the left). Under the Nazis, state and society spoke, or seemed to speak, with one voice.
Schlegelberger’s belief in order and consistency and hierarchy, and his identification with the institutions he led, resulted in repeated conflicts with more radical elements in the regime, which often did not respect the prerogatives of the courts or the letter of the law. The Justice Ministry almost always lost these conflicts, at least after Hindenburg’s death, and in later years often acceded to the demands made on it because it knew that resistance would prove futile. As a result, Schlegelberger not only witnessed numerous violations of fundamental legal principles by others, but himself participated in such violations, especially during the war.
It is striking, though, that Schlegelberger was an enthusiastic supporter of the Nazi regime for much of its existence, despite its repeated repudiation of the premises of any type of legal order. Hitler’s successes in increasing Germany’s power and in suppressing domestic strife, and, after 1939, the circumstances of the war, all led Schlegelberger to turn a blind eye to violations of legal principles. And other motives that Schlegelberger denied or only guardedly admitted certainly also played a role, such as personal and institutional self-interest and sympathy with certain of the regime’s anti-Jewish measures.
In what sense can it be said that Schlegelberger’s actions during the Nazi period reflected the desire to preserve or reestablish a Rechtsstaat? Apparently he did not use that term to characterize his own views before 1945—at any rate not with any frequency. This suggests that he did not consider it to reflect them accurately. On the other hand, contemporary usage of a term is not necessarily decisive in coming to a later judgment regarding its appropriateness as a label. That certain Nazi legal thinkers wished to appropriate the term for Hitler’s state does not mean that we would accept their characterizations. Schlegelberger’s goals of consistency in the application of rules, and his strong support for the independence of the judiciary, embody important aspects of Rechtsstaatlichkeit. And both in some degree imply substantive goals as well: security and also rights for individuals in their dealings with the state and with other individuals. To this extent Schlegelberger’s views and conduct offer some support for Gruchmann’s claim that the justice administration wished to see the reestablishment of a traditional legal order. They also suggest that Unger misunderstands the significance of the courts’ willingness to engage in the resolution of disputes on an equitable basis in the civil litigation of the Weimar period.
On the other hand, to the extent that the use of the term Rechtsstaatlichkeit to characterize his views implies that Schlegelberger was primarily interested in protecting individual rights from state intrusion, it misstates his position. Schlegelberger’s speeches and legal initiatives reflected the goal of expanding, not limiting, state power and restricting, not protecting, individual rights. Especially during the war Schlegelberger showed a willingness to accept as legal secret orders from Hitler that overrode written laws and court decisions, to put pressure on judges to reach ever harsher verdicts, and to develop laws that permitted and sometimes mandated courts to terrorize “racial” and other enemies of the regime. It certainly is true that many of these practices ran counter to Schlegelberger’s views of what was best in the long run. But abstract ideals played little role in determining his response to Hitler’s demands in 1941 and 1942. For these reasons, and because Schlegelberger played, admittedly often with reluctance, an active role in a range of Hitler’s programs of murder and terror, it is misleading to characterize his motives as a product of the desire to preserve, or reestablish, the Rechtsstaat.
An excellent study of the adjudication of the Supreme Appellate Court (Oberlandesgericht) in Celle during the Nazi period concludes by noting the “thoroughly good conscience” of almost all the former judges. [74] This, as the author notes, disturbing observation certainly applies to Schlegelberger as well and reflects in part the effectiveness of the various strategies with which he was able to reconcile his loyalty to principles of legal order and to Hitler. Only very rarely, as in March 1942, when he called on courts to administer political justice, did Schlegelberger openly confront the conflict between his rhetoric of legal order and the reality of the regime. As in this instance, Schlegelberger’s capacity to forget or misremember incidents that did not fit his own conception of the regime, or the role he played in it, was so pronounced that it must be considered a significant personal strategy for dealing with evidence that did not fit his picture of the world or his own conduct. [75] While it could not be proven, I do not take most of these omissions and distortions as instances of conscious prevarication, but as accurate reflections of Schlegelberger’s own perceptions. This ability of the ideology to bend reality to fit its terms is one indication of, and explanation for, its power and persistence and also its flexibility and manipulability.
Eli Nathans is a doctoral student at Johns Hopkins University. He would like to express his thanks to Dirk Bönker, Carl Caldwell, Ken Ledford, Vernon Lidtke, and the anonymous readers for the Law and History Review for their helpful criticisms and suggestions. Unless otherwise noted, all translations are the author’s.
Notes
1. For a bibliographical essay on the now quite substantial literature on the administration of justice in the Nazi period, see the introduction to Michael Stolleis, The Law under the Swastika: Studies on Legal History in Nazi Germany, trans. T. Dunlap (Chicago: University of Chicago Press, 1998).
2. This was, for example, the position of Hermann Weinkauff, from 1949 to 1960 president of the Federal High Court (Bundesgerichtshof) of the German Federal Republic. See Hermann Weinkauff, Die deutsche Justiz und der Nationalsozialismus: Ein Überblick (Stuttgart: Deutsche Verlags-Anstalt, 1968), 28-31. Weinkauff was also a senior judge during the Nazi period, serving on the highest regular court, the Reichsgericht.
3. Roberto Unger, Law in Modern Society: Toward a Criticism of Social Theory (New York: Free Press, 1976), 217, 220. It was precisely the willingness of courts to apply principles of good faith in civil adjudication that Weinkauff praises, although, unlike Unger, he sees this as exceptional rather than characteristic of adjudication in the Weimar period. Weinkauff, Die deutsche Justiz und der Nationalsozialismus, 31.
4. Unger, Law in Modern Society, 220. Unger’s book deals with the Nazi period only briefly, but its conclusions are supported, at least in some degree, by more detailed studies. Bernd Rüthers, Die unbegrenzte Auslegung: Zum Wandel der Privatrechtsordnung im Nationalsozialismus (Tübingen: Mohr, 1968), also argues that “the development of the law in National Socialism was to a very considerable degree a result of interpretations that changed the law…. This is not compatible with a theoretical emphasis on a strict legal positivism” (99). Rüthers also stresses the ways in which the methods of the courts in the Nazi period in this regard followed precedents from Weimar (4). More recent studies come to similar conclusions. See, for example, Ralph Angermund, Deutsche Richterschaft 1919-1945: Krisenerfahrung, Illusion, politische Rechtsprechung (Frankfurt am Main: Fischer Taschenbuch Verlag, 1990), 119 (“the position that judges were required to obey pre-National Socialist laws was no longer found in professional legal journals in the mid-1930s”), and Ingo Müller, Hitler’s Justice: The Courts of the Third Reich, trans. Deborah Schneider (Cambridge: Harvard University Press, 1991), 296 (the German administration of justice came to share “Hitler’s aversion to all ‘legal-mindedness'”).
Müller and Angermund’s focus on instances of twisting of the law or deviation from it may also reflect an evidentiary problem, the difficulty of deciphering the political views of individuals living under a dictatorship. Willingness to twist the law to persecute racial or political enemies of the regime—or, for that matter, to protect them—is better evidence of the views of a judge or prosecutor than enforcement of the plain language of a statute.
5. By administration of justice I mean the Reich and state ministries of justice, as well as courts and prosecutors.
6. Lothar Gruchmann, Justiz im Dritten Reich 1933-1940: Anpassung und Unterwerfung in der �ra Gürtner (Munich: Oldenbourg, 1988), 289. The German term Rechtsstaat and the related adjective rechtsstaatlich are difficult to translate into English. “State governed by the rule of law” perhaps comes closest, but fails to convey the extent to which this aspect was understood as the defining characteristic of the state. As noted below, the term Rechtsstaat, perhaps because of the emotional weight it carries in Germany, came to have a range of meanings.
7. Article 103 of the Grundgesetz. See generally Andrew Tauber, Tyranny on Trial: The Politics of Natural Law and Legal Positivism in the Federal Republic of Germany (Ph.D. diss., Massachusetts Institute of Technology, 1997), 21-113. Tauber argues that when West German courts punished Nazi officials, they often did so by reinterpreting Nazi statutes so as to deprive the officials in question of a legal sanction for their acts.
8. Zweites Gesetz zur �nderung des Gesetzes zur Regelung der Rechtsverhältnisse der unter Artikel 131 des Grundgesetzes fallenden Personen of September 11, 1957, Bundesgesetzblatt, Part I, 1275. The law also made violation of principles of humanity a basis for denying pension and other rights. But the significance of this clause, given West German courts’ generally positivistic interpretation of Nazi law, was limited.
9. Tauber, Tyranny on Trial, 84-101; Bernd Kasten, “Pensionen für NS-Verbrecher in der Bundesrepublik 1949-1963,” Historische Mitteilungen 7 (1994): 262-82. Kasten notes that Gestapo members as a group generally lost all rights to pensions. For other general depictions of the widespread reluctance in the German Federal Republic to prosecute or in any way disadvantage even very senior Nazi officials, at least until the late 1960s, see Falko Kruse, “Zur justitiellen Verfolgung von NS-Gewaltverbrechen in der Bundesrepublik,” in Der Unrechts-Staat: Recht und Justiz im Nationalsozialismus (Baden-Baden: Nomos, 1979), 164-89, and Im Namen des Deutschen Volkes: Justiz und Nationalsozialismus, catalogue to an exhibit produced by the Ministry of Justice of the Federal Republic of Germany (Cologne: Verlag Wissenschaft und Politik, 1989), 353-452.
10. For a more elaborate discussion of the central role of legal ideologies in molding German conceptions of state and society in the nineteenth century, see Kenneth F. Ledford, From General Estate to Special Interest: German Lawyers, 1878-1933 (New York: Cambridge University Press, 1996), xxvi-xxvii, 1-20.
11. The history of the concept of Rechtsstaatlichkeit is described by Ingeborg Maus, “Entwicklung und Funktionswandel der Theorie des bürgerlichen Rechtsstaats,” in Der Bürgerliche Rechtsstaat, ed. Mehdi Tohidipur (Frankfurt am Main: Suhrkamp, 1978), 13-81; Gottfried Dietze, Two Concepts of the Rule of Law (Indianapolis: Liberty Fund, 1973), 9-51; Hans Kelsen, Pure Theory of Law, trans. Max Knight (Berkeley: University of California Press, 1978), 313, 319; and Leonard Krieger, The German Idea of Freedom: History of a Political Tradition (Boston: Beacon Press, 1957), especially the chapter entitled “The Doctrine of the Rechtsstaat,” 252-61.
12. These debates are described and analyzed in Peter Caldwell, “National Socialism and Constitutional Law: Carl Schmitt, Otto Koellreutter, and the Debate over the Nature of the Nazi State, 1933-1937,” Cardozo Law Review 16 (1994): 399-427, and Ulrich Schellenberg, “Die Rechtsstaatskritik: Vom liberalen zum nationalen und nationalsozialistischen Rechtsstaat,” in Staatsrecht und Staatsrechtslehre im Dritten Reich, ed. Ernst-Wolfgang Böckenförde (Heidelberg: C. F. Müller, 1985).
13. Ernst-Wolfgang Böckenförde, “The Origin and Development of the Concept of the Rechtsstaat,” in his State, Society, and Liberty: Studies in Political Theory and Constitutional Law, trans. J. A. Underwood (New York: Berg, 1991), 47-70, 69.
14. In part for this reason, Schlegelberger has been the subject of three recent biographies, one by the author of this article. See Michael Förster, Jurist im Dienst des Unrechts: Leben und Werk des ehemaligen Staatssekretärs im Reichsjustizministerium, Franz Schlegelberger, 1876-1970 (Baden-Baden: Nomos, 1995); Eli Nathans, Franz Schlegelberger (Baden-Baden: Nomos, 1990); and Arne Wulff, Staatssekretär Professor Dr. Dr. h.c. Franz Schlegelberger, 1876-1970 (Frankfurt am Main: P. Lang, 1991).
15. Förster’s interpretation of Schlegelberger’s intellectual development, in Jurist im Dienst des Unrechts, stresses more the role played by ideas absorbed during Schlegelberger’s student years and early in his career. According to Förster, Schlegelberger’s criticism of liberalism and individualism during the Nazi period “did not involve a revision of his previous views, but was based on a foundation laid at the beginning of his scholarly activity. They were the fruits of the seeds sown by his teachers Gareis and Zorn” (20, 45). There probably is some truth in this, although Förster notes that Schlegelberger’s earliest extant publication praised rather than damned the liberal and individualistic Bürgerliches Gesetzbuch (Civil Law Code). The general point, that Schlegelberger’s legal and political philosophy largely antedated the Weimar Republic, is certainly correct and suggests problems with Unger’s interpretation.
16. Franz Schlegelberger, Zur Rationalisierung der Gesetzgebung (Berlin: Vahlen, 1928), 15.
17. “Kunstschaffen und Gesetzgebung,” Deutsche Justiz 99 (1937): 1942-43.
18. Franz Schlegelberger, Ein Volk erlebt sein Recht (Berlin: Vahlen, 1936), 10; “Kunstschaffen und Gesetzgebung,” 1943; Zur Rationalisierung der Gesetzgebung (Berlin: Vahlen, 1959), 23.
19. See, for example, Schlegelberger, Ein Volk erlebt sein Recht and Die Entwicklung des deutschen Rechts im Dritten Reich (Berlin: Vahlen, 1938), 21.
20. After 1945, and in particular after 1957, Schlegelberger repeatedly described his own behavior in terms of a defense of Rechtsstaatlichkeit. A West German administrative court that ruled on state efforts to deprive Schlegelberger of his official pension on the grounds that he had violated the principles of Rechtsstaatlichkeit summarized Schlegelberger’s argument as follows: he had “remained in office only with the intention of maintaining to the extent possible the principles of Rechtsstaatlichkeit.” Schlegelberger claimed he had consciously violated certain fundamental principles of Rechtsstaatlichkeit in order to fend off worse violations. Verdict of the Administrative Appeals Court in Lüneburg dated March 14, 1963, in the case regarding the revocation of Schlegelberger’s pension rights, Landesarchiv Schleswig-Holstein, AZ 5 K 198/59, Abt. 791, Nr. 244, 43.
21. See the discussion at footnote 12.
22. For example, Franz Schlegelberger, Die Entwicklung des Deutschen Rechts in den letzten 15 Jahren (Berlin: Vahlen, 1930), 41, and, in particular, Franz Schlegelberger, Abschied vom BGB (Berlin: Vahlen, 1937).
23. Franz Schlegelberger, Zur Rationalisierung der Gesetzgebung, 13. Such views were widely held in conservative circles. See Angermund, Deutsche Richterschaft, 39-40.
24. The title of Schlegelberger’s article, the “rationalization” of legislation, is telling. It reflects his repeated claims that his approach was superior as a matter of logic and reason.
25. Der Prozess gegen die Hauptkriegsverbrecher vor dem Internationalen Militärgerichtshof (Nuremberg, 1948), 20: 292.
26. Hans Hattenhauer, “Vom Reichsjustizamt zum Bundesministerium der Justiz,” in Vom Reichsjustizamt zum Bundesministerium der Justiz: Festschrift zum 100 jährigen Gründungstag des Reichsjustizamtes am 1. Januar 1877, published by the Ministry of Justice of the Federal Republic of Germany (Cologne: Bundesanzeiger-Verlagsgesellschaft, 1977), 97. In his article Hattenhauer quotes a small portion of Schlegelberger’s unpublished memoirs.
27. As Schlegelberger put it in his memoirs, “at that point the head of state was not Adolf Hitler, but Hindenburg, who offered in his person a guarantee that the government would be properly led” (97).
28. Schlegelberger quoted Bismarck as calling the parties “an evil that is devouring the fatherland.” Franz Schlegelberger, “Reichsjustiz im Zweiten und im Dritten Reich,” Deutsche Justiz 97 (1935): 465-68, 467.
29. Karl-Heinz Minuth, ed., Die Regierung Hitler: 1933/34, vol. 1 of Akten der Reichskanzlei. Regierung Hitler 1933-1938 (Boppard am Rhein: Boldt, 1983), 165.
30. Memorandum entitled “Aufzeichnung zur Frage der Bestrafung der Täter, die am 27. Februar 1933 das Reichstagsgebäude in Brand gesetzt haben,” March 10, 1933, Bundesarchiv Koblenz, Germany (hereafter BA) File R 43 II/294, 57.
31. Ibid., 52.
32. Schlegelberger’s concern that the courts might come into conflict with the new regime was expressed even more explicitly a few weeks later, on the eve of the April 1 national boycott of all Jewish businesses. Schlegelberger feared that Jewish store owners might ask the courts to protect their businesses, or to order compensation for the damage they had suffered, and that some courts might agree with them. At the cabinet meeting of March 31, 1933, he proposed a law that would have made clear that the boycott was not an illegal interference with the Jews’ right to conduct their businesses. “If such a law were not fashioned,” he told the cabinet, “the courts might have difficulties….” The cabinet found such a law unnecessary. Minuth, Die Regierung Hitler, 276.
33. Schlegelberger Testimony, Der Prozess gegen die Hauptkriegsverbrecher vor dem Internationalen Militärgerichtshof, 20: 293. By contrast, Gruchmann speculates that when Gürtner discussed the killings with Hitler shortly after they took place, he must have raised questions that “deeply anguished” him (” … die [Gürtner] auf der Seele brennen mußten …”). Gruchmann, Justiz im Dritten Reich, 447. Gruchmann suggests that Gürtner supported the law that sanctioned the Röhm murders because he saw it, correctly, as the only way to preserve the “normative legal order” (452). Schlegelberger’s testimony suggests that he, at least, viewed the law simply as correct, at least as it applied to the killings of SA leaders: the murders were justified. I disagree with Gruchmann’s claim that adopting a law justifying the killings was, under the circumstances, the best way to uphold the rule of law. This conclusion fails to give sufficient weight to the role the retroactive sanctioning of the killings played in strengthening Hitler’s dictatorial powers.
34. Transcript of the meeting of the Committee for Civil Law of the Akademie für Deutsches Recht, November 14, 1934, BA R 22/646, 13. It was precisely for “Gelegenheitsgesetzgebung” that Schlegelberger had attacked the Weimar Republic in a speech delivered only a few months earlier: “War and the post-war period, the destruction of the currency, inflation, deflation, the falling apart of morals and the disorder of the state all created such a mass of legislation for the moment, that it finally became unmasterable and not only foreign to the nation, but contemptible.” Franz Schlegelberger, Vom Beruf unserer Zeit zur Gesetzgebung (Berlin: Vahlen, 1934), 11.
35. Franz Schlegelberger, “Rechtsschöpfung,” Deutsche Justiz 94 (1934): 4.
36. See Franz Schlegelberger, Was erwarten das deutsche Volk und der deutsche Jurist von der Vereinheitlichung der deutschen Justiz (Berlin: Vahlen, 1934). The unification of the administration of justice also removed several radical and ambitious leaders of the Nazi Party, with whom the Reich Justice Ministry had frequently clashed, from their positions as state justice ministers: Hans Frank in Bavaria, Hanns Kerrl in Prussia, and Otto Thierack in Saxony.
37. Magdeburger General-Anzeiger, March 14, 1936, BA R 22, Press Reports regarding Franz Schlegelberger, vol. 1. For other, similar statements, see Nathans, Franz Schlegelberger, 28-39.
38. Schlegelberger, Ein Volk erlebt sein Recht, 7.
39. Schlegelberger, Die Entwicklung des deutschen Rechts im Dritten Reich, 21. As with his advocacy of a revision of the civil code, this was not a new theme for Schlegelberger. During the Weimar period he had also attacked judges who refused to follow particular laws because they seemed unjust: “this must necessarily lead to legal anarchy.” Schlegelberger, Die Entwicklung des Deutschen Rechts in den letzten 15 Jahren, 27. Although Schlegelberger supported judicial willingness in the Weimar period to revalue debts on the basis of general principles of good faith, I do not conclude from this that he wished judges generally to be freed from a tight subordination to the law. Compare Förster, Jurist im Dienst des Unrechts, 30, 34.
40. Schlegelberger, Ein Volk erlebt sein Recht, 14.
41. Schlegelberger (as Gürtner’s representative) to the President of the Berlin Court of Appeals (Kammergericht), April 13, 1935, BA R 22/263. Schlegelberger (as Gürtner’s representative) to the President of the Cologne Court of Appeals (Oberlandesgericht), April 13, 1935, BA R 22/263. The quotation is from the letter sent to the president of the court of appeals in Cologne.
42. Schlegelberger, Vom Beruf unserer Zeit zur Gesetzgebung, 25. Similarly in Schlegelberger, Ein Volk erlebt sein Recht, 8.
43. Schlegelberger, Abschied vom BGB. As Förster notes, Schlegelberger’s criticisms mirrored similar attacks made in the period when the Bürgerliches Gesetzbuch first came into being in the Kaiserreich.
44. Schlegelberger to the Representative of the Führer, the Chief of the Reich Chancellory, Field Marshall Goering, the Foreign Minister, the Interior Minister, the Propaganda Minister, the Finance Minister, the Economics Minister, and the Minister for Food and Agriculture, December 12, 1938, BA R 22/728, 203; Schlegelberger to the Interior Minister and, for information purposes, to the other Ministers, July 19, 1939, BA R 43 II/135, 56 (back side). Schlegelberger signed both letters “In Vertretung,” or as representative of the minister, and one can assume that Gürtner was informed of and approved of Schlegelberger’s actions. The right of the state secretary to sign correspondence on behalf of the minister was regulated by the General Code of Administrative Procedure. See Arnold Brecht and Comstock Glaser, The Art and Technique of Administration in German Ministries (Cambridge: Harvard University Press, 1940), 76.
45. Schlegelberger (as Gürtner’s representative—”in Vertretung”) to Hitler, March 30, 1933; Schlegelberger (again as Gürtner’s representative) to Hitler, April 5, 1933, both in BA R 43 II/1505.
46. American Military Tribunal Trial, German Language Transcript, 4339-4340. That Schlegelberger ever told Hitler that what he intended to do was “impossible” is highly doubtful; but one can believe that he did bring up the question of judicial independence in his final interview.
47. On this question, see generally Nathans, Franz Schlegelberger, 23-26.
48. Introductory remarks of Gürtner, October 24, 1939, BA R 22/4158, 62-67, 63.
49. Franz Schlegelberger, “Kriegs-Zivilrecht, einst und jetzt,” Deutsche Justiz 101 (1939): 1881-82, 1881.
50. A draft of Schlegelberger’s letter, which was sent to the head of the Reich Chancellory, Hans Lammers, on March 6, 1940, is contained in BA R 22/256. Since Schlegelberger signed the letter “In Vertretung,” one can assume that Gürtner supported the idea. Lammers replied to Gürtner that he did not wish to propose the idea to Hitler, on the grounds: 1) that the other free professions would likely demand similar rules, which would place an unnecessary burden on Hitler (who would have to approve dismissals); 2) that lawyers in private practice were not representatives of the state, and the state therefore had less of an interest in their undivided loyalty than was the case with civil servants; and 3) that attacks on the loyalty of individual attorneys might be used as a weapon in the struggle for business. Lammers to Gürtner, April 9, 1940, BA R 22/256. For civil servants, of course, no such doubts arose. Schlegelberger told senior prosecutors and appellate courts judges in April 1941 that “our duty is consciously and uncompromisingly to make the justice system more and more a part of the National Socialist state.” Schlegelberger speech of April 23, 1941, BA R 22/245, 57. Gruchmann does not mention Schlegelberger’s (and, again, presumably Gürtner’s) proposal regarding lawyers.
51. Shortly after becoming acting minister, Schlegelberger published a notice in Deutsche Justiz on the occasion of Hitler’s birthday that evidences the effect of the German army’s successes and, probably, his own sense of the weakness of his position, his need to demonstrate his full loyalty: “On the threshold of the new year of life the Führer looks back on military and political victories such as no other man has been granted in so short a time. Therefore we are dominated today by a feeling of indelible thanks to the man who gave back to the German people its unity, freedom, and honor…. All for Adolf Hitler and Germany!” Deutsche Justiz 103 (1941): 477.
52. Schlegelberger to Hitler, March 10, 1941, reproduced in Martin Broszat, “Zur Perversion der Strafjustiz im Dritten Reich,” Vierteljahrshefte für Zeitgeschichte 6 (1958): 390-443, 418.
53. Meissner to Schlegelberger, April 22, 1941. Ibid., 418-19.
54. The judge reported after the war that Gürtner had told him: “If you cannot recognize the will of the Führer as the source of law, as the foundation of law, you can no longer be a judge.” Gruchmann, Justiz im Dritten Reich, 512.
55. Schlegelberger to Lammers, March 4, 1941, BA R/22 4209, 77-80, 79.
56. Introductory remarks of Schlegelberger, April 23, 1941, BA R/22 245, 56-61, 60.
57. “Alle Rechtspflege ist eine politische Tätigkeit.” Heinz Boberach, Richterbriefe: Dokumente zur Beeinflussung der deutschen Rechtsprechung, 1942-1944 (Boppard am Rhein: Boldt, 1975), 425.
58. Ibid, 425.
59. Ibid, 426. He also mentioned a third case in which execution was imminent.
60. Max Weber, Wirtschaft und Gesellschaft: Grundriss der verstehenden Soziologie, ed. Johannes Winckelmann, 5th rev. ed. (Tübingen: Mohr, 1976), 514 (chapter entitled “Politische Gemeinschaften”).
61. Carl Schmitt, Der Begriff des Politischen (1932; Berlin: Duncker and Humboldt, 1996).
62. Schlegelberger claimed in his 1959 appeal of the revocation of his pension that the stenographer had made a mistake and had recorded him as the author of the words in question, instead of Roland Freisler, the second state secretary in the Justice Ministry. The suggestion that the stenographer mistakenly identified the leading figure in the agency is in the highest degree unlikely, and the content of the talk also makes clear that Schlegelberger was the speaker (among other things, it refers to Freisler in the third person). Verdict of the Administrative Appeals Court dated March 14, 1963, in the case regarding the revocation of Schlegelberger’s pension rights, Landesarchiv Schleswig-Holstein, AZ 5 K 198/59, Abt. 791, Nr. 244, 15.
63. Der Prozess gegen die Hauptkriegsverbrecher vor dem Internationalen Militärgerichtshof, 20: 296-97. Schlegelberger stated that Hitler released him from his office because he knew that Schlegelberger disapproved of his attacks on the independence of the judiciary. He testified elsewhere that it was Hitler’s speech of April 1942, attacking the judiciary and claiming the right to remove judges, that led him to the conclusion that he could no longer go along. Schlegelberger Interrogation of November 13, 1946, Interrogation No. 216, National Archives Record Group No. 238, 2.
64. Quoted in Hattenhauer, “Vom Reichsjustizamt zum Bundesministerium der Justiz,” 97. Schlegelberger also claimed, and here one can entirely believe him, that Hitler offered to appoint him president of the administrative court after the decision to appoint Thierack justice minister had been made, but that he had insisted on being retired. American Military Tribunal Trial, German Language Transcript, 4339.
65. Schlegelberger testified before the American Military Tribunal that “if one had attempted to refer to the Reich Civil Service Law, paragraph 60 of which gave one the right to resign, one certainly would not have been listened to.” American Military Tribunal Trial, German Language Transcript, 4463.
Section 60 of the Civil Service Law provided that “the Civil Servant can demand his release at any time…. The demand must be granted, although the release can be delayed until the Civil Servant has finished his official business in an orderly way.” Reichsgesetzblatt, Part I (1937), 50. A March 1939 amendment to the Civil Service Law provided that “… until December 31, 1941, requests to be let go by civil servants (under Section 60 of the German Civil Service Law) need not be granted.” Gesetz zur �nderung des Deutschen Beamtengesetzes, Reichsgesetzblatt, Part I (1939), 578. This clause was continued in force beyond December 31, 1941, by a subsequent law, Reichsgesetzblatt, Part I (1941), 648.
66. This explanation, however, would have raised questions about why he did not reach such a decision earlier.
67. American Military Tribunal Trial, English Language Transcript, 10794.
68. Verdict of the Administrative Appeals Court dated March 14, 1963, in the case regarding the revocation of Schlegelberger’s pension rights, Landesarchiv Schleswig-Holstein, AZ 5 K 198/59, Abt. 791, Nr. 244, 4.
69. Ibid, 4; Im Namen des Deutschen Volkes—Justiz und Nationalsozialismus, 415-16.
70. Verdict of the Administrative Appeals Court dated March 14, 1963, in the case regarding the revocation of Schlegelberger’s pension rights, Landesarchiv Schleswig-Holstein, AZ 5 K 198/59, Abt. 791, Nr. 244, esp. 46-48.
71. Im Namen des Deutschen Volkes—Justiz und Nationalsozialismus, 364.
72. Here referring to different findings by courts regarding the legal rights of Jews in the aftermath of the pogrom of November 1938. Schlegelberger (as Gürtner’s representative) to the Representative of the Führer, the Chief of the Reich Chancellory, Field Marshall Goering, the Foreign Minister, the Interior Minister, the Propaganda Minister, the Finance Minister, the Economics Minister, and the Minister for Food and Agriculture, December 12, 1938, BA R 22/728, 203-4, 203.
73. As this suggests, and as Pierre Bourdieu has argued with respect to official ideologies generally, the form taken by the ideology of authoritarian legal order reflected “the social conditions of [its] production and circulation,” the functions it performed “for specialists competing for a monopoly over the competence under consideration.” Pierre Bourdieu, “On Symbolic Power,” in Language and Symbolic Power, trans. Gino Raymond and Matthew Adamson (Cambridge: Harvard University Press, 1991), 169. Of course, an ideology is only effective if it can appeal to a broader group than the specialists who create and propagate it. The suggestion that ideologies are shaped by the functions they perform for particular elite groups does not mean that this elite views it purely instrumentally. That was certainly not the case here.
74. Rainer Schröder, “… Aber im Zivilrecht sind die Richter standhaft geblieben!” (Baden-Baden: Nomos, 1988), 269-70.
75. Several examples have been noted above. These and other instances are discussed at greater length in Nathans, Franz Schlegelberger, 30, 73, and 80, and notes 52 and 80, as well as Förster, Jurist im Dienst des Unrechts, 157.
By: ELI NATHANS