Vol. 10 No. 5 (May 2000) pp. 326-329.

JUSTICE DELAYED: THE RESTORATION OF JUSTICE IN BAVARIA UNDER AMERICAN OCCUPATION, 1945-1949 by Jeffrey S. Gaab. New York: Peter Lang, 1999. 188 pp.

Reviewed by Anke Grosskopf, Department of Political Science, Tulane University.

An English-language chronicle of the denazification of the German justice system has long been overdue more than fifty years after the end of World War II. Jeffrey Gaab's JUSTICE DELAYED fills this considerable gap in the American literature by giving a historical account of the efforts of the American occupation force to rebuild a democratic Bavarian justice system in the immediate post-War years. The question that this book investigates is an important one with which law and politics scholars are quite familiar: how can the legal system and profession help sustain a democratic political system? More specifically, Gaab seeks to explain how illiberal legal professionals were transformed into the guardians of democracy in post-War Germany. Although Gaab's historical account of the countervailing pressures and mixed successes of democratic transition in the Bavarian justice system is more descriptive and less theoretically and analytically rigorous than political scientists might wish, it provides interesting insights into the economic, social and systemic pressures that might turn legal professionals into foes or friends of democracy.

The underlying assumption of this book, as the introduction to the slim volume rightly points out, is that a legal system needs to protect individuals' rights from the intrusion of the state in order for democracy to flourish (p. 1). The complicity of the legal profession in bringing down the fledgling Weimar democracy and in establishing the Nazi state of terror became apparent soon after the war, leading the Military Government of the United States for Germany (OMGUS) to worry that a wayward legal profession might again become a stumbling block to German democracy. Despite concerted efforts to denazify the legal system, large numbers of illiberal legal professionals were able to return to positions of power soon after the War's end. Yet, Bonn did not become another Weimar. Why it did NOT is the central question JUSTICE DELAYED attempts to answer (p. 2). Based on extensive archival research in Germany and the United States, as well as on a review of the more voluminous German-language literature on the topic, Gaab concludes that the reforms imposed by OMGUS were NOT SUFFICIENT by themselves, but CONTRIBUTED positively to a fundamental attitude change of German legal professionals (p. 6). In both the Third Reich and the democratic second republic, the opportunism of legal professionals prevailed. What changed were the incentive structures.

Chapter one explains why German jurists became accomplices of National Socialism by convincingly demonstrating that the conservative and nationalistic beliefs of legal professionals in 1932 were shaped by a century of economic and social decline for legal practitioners. On the one

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hand, Bismarck had begun to strengthen the state after the failed revolution of 1848 by molding the law and its practitioners into convenient political tools. Legal positivism was born as law became synonymous with order and as legal professionals began to identify with the state. On the other hand, increasing competition caused by the beginning of large-scale industrialization after 1878, resulted in an overcrowded legal field, accelerating the decline of the legal profession.

The founding of the Weimar Republic escalated the problems to a crisis by robbing legal professionals of the monarchy with which they had identified. Furthermore, the profession faced heightened competition as industrialization continued to swell the ranks of jurists. When economic crisis and hyperinflation battered Germany in 1923, the legal profession was hit even harder than other sectors of the economy. Striking back, judges increasingly expressed their contempt for the republic by liberally dispensing judgments with a wide open left eye and a firmly shut right one: Socialists and communists faced harsh sentences, while Conservatives and nationalists received mere slaps on the wrist.

Chapter two recounts the well-known story of the transformation of the justice system into an instrument of terror in Hitler's hands. After 1932, the regime perfected its perversion of justice and the law by using the threat of instability as a convenient excuse to empower the ultimate super-state by suspending individual rights. Gaab's contribution to this familiar tale is the argument that legal professionals did not originally support Hitler ideologically, but saw an opportunity to improve their desolate status (p. 26). Rather than becoming his hapless tools, an improving economy and a forced thinning of the profession (p. 27) bought Hitler the willing complicity of the remaining legal professionals in "organized lawlessness and murder" (p. 36). Yet this politicization process completely stripped the law, and by extension its practitioners, of moral content. Re-establishing morality therefore became the main challenge. DELAYED JUSTICE argues this point quite concisely and convincingly, backing up conjectures with illustrative numbers and examples.

Unfortunately, the subsequent chapters cannot keep pace with this promising beginning, as they lack its analytical clarity and chronological approach. Although chapters three, four and five detail Justice in Chaos, Justice Emerging and Justice in Reverse?, Gaab's own argument begins to emerge in more detail, just to disappear in the chaos of the post-War years and at times even to reverse itself. Chapter three exemplifies this lack of structure, as it seems to focus mainly on the formal re-establishment of judicial independence under the Bavarian constitution of 1946. However, the chapter also provides interspersed references to the ineffectiveness of formal denazification. The countervailing pressures of denazifying the formally independent legal system and the severe shortage of untainted legal professionals are then more fully elaborated in chapter four. Yet previous references to denazification in the preceding chapter that had repeatedly claimed that denazification failed let the argument appear to be a historical and logical step backwards. Analogous problems pervade all remaining chapters. Rather than simply and progressively building on previous arguments, the author rehashes his reasoning and sacrifices analytical clarity to redundancy.

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Admittedly, the redundancy trap is easy to fall into when analyzing complex processes. However, what law and politics scholars will miss even more than the lack of structure is that JUSTICE DELAYED persistently passes on opportunities to critically and theoretically discuss the paradoxes it encounters. The case studies of transitional justice, for example, practically beg a discussion of the difficulty of organically integrating natural law into a legal tradition to which it is foreign. After all, the decisions of these supposedly highly skilled and moral Constitutional judges (p. 82) may indicate a struggle with the new concept, rather than resurfacing Nazism. Similarly, it is questionable how easily the distinction between overt and covert Nazism can be made retrospectively without a more in-depth analysis of the judges' reasoning and supporting archival material.

Chapter six, Justice in the Flesh, suffers from analogous problems. It contains a threefold classification with accompanying case studies of post-War German jurists into "true" Nazis, conservative "fellow travelers" and non-Nazis without providing clear criteria for distinguishing between categories. The main, implicit, criterion for judging jurists appears to be the question of whether they were convicted in Nuremberg or not. For example, the former Nazi Minister of Justice Frank is labeled a Nazi, even though he tried to convince Hitler to dismantle the concentration camps and was subsequently stripped of his party offices. Frank confessed in Nuremberg and was executed. Yet his colleague Gurtner, who had joined Frank in attempting to persuade Hitler (and was apparently permitted to keep his position), is portrayed as an unconvinced Nazi "fellow traveler." Similarly, the Fuhrer's infamous theorist Carl Schmitt is labeled a mere "fellow traveler" without much explanation. If the judgment criteria had been more explicit, Gaab's classification might have been more convincing.

In chapter seven, Gaab evaluates the success of the re-education programs designed to convert "fellow travelers" into genuine democrats after the apparent failure of denazification. Although the programs were successful in principle, they never reached sufficient numbers of Germans to be effective. Perhaps this failure explains why chapter eight can trace vestiges of illiberal judicial argument far into the twentieth century, until the Federal Constitutional Court formally renounced positivism in 1973. Finally, chapter nine summarizes the overall argument and tries to weave the varied threads of Gaab's argument together into a more coherent tapestry.

Surprisingly, the conclusion argues that denazification and even re-education had only limited impact, while Gaab points to the effects of the constitution and the oversight powers of the Constitutional Court, as well as economic recovery and the absence of alternatives to liberal democracy as important factors on the successful post-War transformation of the legal system. Regrettably, the book does not provide a full examination of these important factors. Choosing a few select case studies of the various actors and tracing their motivations throughout individual lives instead might have provided better leverage towards answering the important theoretical question posed in the book. Alternatively, a clearer chronological approach might have helped.


JUSTICE DELAYED makes important archival materials on the reconstruction of the German justice system available in English while providing rich historical detail and an interesting argument about the impact of economic and status-related self-motivation of judges. Despite

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relative weakness in discussing theoretical underpinnings and in drawing theoretical conclusions beyond the case under investigation, this book is worthwhile reading material for a course or research project on the role of courts in democratic transitions or on the problems of transitional justice. Overall, the strength of the book lies in explaining how the conscious democratization efforts of OMGUS failed in the legal system, rather than in explaining how German jurists EVENTUALLY became true guardians of democracy.


Copyright 2000 by the author, Anke Grosskopf.