Volume 1, No. 8 (October, 1991), pp. 118-121

HITLER'S JUSTICE: THE COURTS OF THE THIRD REICH by Ingo Muller, transl. by Deborah Lucas Schneider (Cambridge, Massachusetts: Harvard University Press, 1991).

Reviewed by Donald P. Kommers, University of Notre Dame

Ingo Muller's book, originally published in 1987 as FURCHT- BARE JURISTEN: DIE UNBEWALTIGTE VERGANGENHEIT UNSERER JUSTIZ (literally, "Dreadful Jurists: The Remorseless Past of Our Judiciary"), describes the moral collapse of the German legal profession and its role in facilitating the construction and maintenance of the Nazi regime. Gracefully translated by Deborah Lucas Schneider, HITLER'S JUSTICE seeks, first, to show how legal professionals betrayed their trust as lawyers, prosecutors, and judges and, second, to assess the degree to which Germany in the postwar period reformed its legal system, purged the judiciary of former Nazis, and re-dedicated itself to the rule of law. Detlev Vagt's short introduction to the English edition helps to orient the non-German reader. It contains an overview of Germany's court system, a sketch of the legal profession's organization, a note on the controversies about the role of lawyers and judges under National Socialism, and a summary of the allied effort to reform the German legal system after the war.

The main message of this book is that lawyers and judges trained to serve the Rechtsstaat (a state based on the rule of law) had instead subverted it by going along with Hitler and his criminal regime. Like physicians, professors, and even clergymen -- members of professions dedicated to serving human needs -- lawyers and judges, far from opposing injustice, actually helped to perpetuate it. The judiciary's record by any standard is a tale of iniquity, its collusion with evil having already begun during the Weimar period when judges antagonistic to constitutional democracy openly sympathized with Nazi defendants accused of committing acts of violence against their political enemies. Thus, as the author argues, the German judiciary compromised its integrity even before the Nazis took over.

There follows an account of the various ways in which lawyers, prosecutors, and judges subverted the Rechtsstaat during the Nazi years. We find them making a mockery of the Reichstag fire trial; conducting political trials and bullying defendants in open court; confining political prisoners to inhuman prison conditions; driving Jews out of the bar and off the bench; depriving them in turn of all other rights of citizenship, even to the point of imposing the death sentence for petty offenses; formulating policies that allowed physicians to experiment genetically on disabled people and to kill persons regarded as unworthy of life; organizing special courts for the prosecution of "asocial elements" and "political and military enemies of the state;" and "correcting" the final decisions of the regular courts to the disadvantage of defendants or litigants disfavored by the state.

These perversions of justice were real. They happened, and the author hammers home the reality of what happened by parading before the reader example after example of judicial lawlessness and legalized

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terror. Much of this story, based heavily on court records and other official reports, has been told before. Actually, this book is intended to refute studies that defend or explain away the record of the judiciary during the Third Reich, seeking to demolish any interpretation of that record that would diminish the extent of its contribution to the rise and acceptance of the Nazi state. Hence, armed with information selected from the sources just mentioned and citing chapter and verse of laws and regulations that sanctioned Hitler's justice, the author proceeds to indict the entire judicial establishment.

Muller powerfully substantiates his indictment, yet somehow the indictment is not sustained by the evidence adduced. He gives the reader snapshots of the judicial role under the Nazis, and while such snapshots build a case for an unquestionably broad condemnation they do not warrant the conclusion that the judicia- ry or the legal profession was totally corrupt. We read, for example, that only one "stout-hearted" judge -- Dr. Lothar Kreyssig -- "refused to serve the [Nazi] regime from the bench" (p. 196), an assertion that verges on being an ipse dixit. Did not other judges resist the pressure to do evil, even if only by the smallest acts of insubordination? By the author's own account Nazi officials had to "correct" a large number of judicial decisions, belying the impression of a totally tainted judiciary. He also reminds us that "Hitler...considered jurists 'complete fools' incapable of recognizing what measures the state had to take" (p.174). If Hitler really had had his way, he would, like Dick the Butcher in Shakespeare's Henry VI, have killed all the lawyers.

HITLER'S JUSTICE presses the claim, as already suggested, that the judiciary, and indeed the entire legal establishment, succumbed to the temptation of evil. It presses the claim too far, however, and ignores evidence that tends to undermine its wholesale condemnation of the judiciary. In this regard, it is interesting to compare Muller's book with Marck Linder's recent study of the Supreme Labor Court (THE SUPREME LABOR COURT IN NAZI GERMANY: A JURISPRUDENTIAL ANALYSIS, Frankfurt am Main: Vittoria Klostermann, 1987). A careful study of the published decisions of the Reichsarbeitsgericht between 1933 and 1945, it is a nuanced account of the court;s work, for it resists the tempta- tion to charge the judiciary en masse with carrying out the will of the Nazi regime. Linder is able to show, for example, that in the labor contract cases the Court was able to retain a large measure of its autonomy, resorting in some instances to rigid formalistic reasoning as a way of ignoring the Volk-consciousness that was supposed to inform its decisions. Even Jews who lost their jobs or pension rights as a result of a company's "aryani- zation" were successful in their suits before this tribunal. In short, Linder's study supports Ernst Fraenkel's notion of a dual state in which a system of Nazi justice, practiced mainly in special courts and criminal tribunals, coexisted along side of courts that interpreted law much as they had done before 1933.

Another problem is the book's unevenness and anecdotal character. Anecdotes do capture the reality of Hitler's justice but these tales of injustice do not tell the full story of bench and bar between 1933

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and 1945. In addition, some topics are covered in a flash while others are treated at length. The author devotes thirty pages to the Nuremberg laws and only three each to chapters on Hitler's euthanasia program and the deeds of lawyers in the civil service. In a two page chapter (pp. 138-139) on "the arbitrary decisions of everyday life" he is satisfied with citing decisions of six different courts, including the Prussian Administrative Court of Appeals and the Supreme Labor Court.

Perhaps we should overlook the omissions in Muller's account. After all, the criminal actions of some courts and judges need to be placed under a magnifying glass if only as a reminder that educated elites are as susceptible as the unwashed masses to becoming unwitting as well as willing participants in the commission of evil. The last part of the book, however, in which the author assesses the Federal Republic's record in "overcoming the past," is less excusable. Here the book recedes into injudicious criticism of the Federal Republic's effort to reform the judiciary and the legal profession.

Muller speaks of the postwar "re-Nazification" of the German judiciary which in his view has had "a profound effect on the development of democracy in West Germany" (p. 203). The charge of "re-Nazification" rests on the large number of former National Socialists who were apparently reappointed to the judiciary after the war. Rightly, Muller condemns the reappointment of the judges who were implicated in Nazi crimes, but mere membership in the Nazi party neither could nor should have been a disqualifying factor in judicial appointments since judges and lawyers who joined the party did so for a wide variety of reasons ranging from mere expediency to ideological conviction. Karl Jaspers once distinguished between the four kinds of guilt among the men and women who lived and worked in Nazi Germany, namely, metaphys- ical, moral, political, and criminal. Muller's account is inattentive to these distinctions.

The author's description of the West German judiciary illustrates his partisanship. The first is his criticism of the postwar revival of natural law in Germany or certain "supra- positive" standards of judicial review, a criticism that recalls his attack, earlier in the book on teleological methods of inquiry used by certain courts during the Weimar Republic. Here the author tries to rescue legal positivism from the familiar charge that it caused the breakdown of the rule of law during the Nazi period. He is surely right to attack this oversimplified view of legal positivism, but he is surely wrong to suggest that teleological analysis or natural law thought in its West German incarnation is a continuation of old ways of legal thinking. Teleological inquiry is in fact a standard mode of analysis in many constitutional courts today, including the European Court of Justice.

Second, the author barely conceals his political leanings in condemning the generally conservative work-product of the West German judiciary, including decisions relating to internal security, reinstatement of civil servants, and reparation pay- ments to certain opponents of Nazi injustice. The author is rightly

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critical of these decisions, but he fails to make the case that the post-war judiciary has on the whole served as a conservative and thus, for him, an antidemocratic force in German politics. Actually, the post-war record of the German judiciary in defend- ing democratic values is probably no better or worse than the record of the judiciary elsewhere in western Europe or for that matter in the United States.

Finally, the author calls attention to the fact that Willi Geiger, a Justice for the Federal Judiciary Court for 26 years (1961-1977), wrote the 1975 decision that constitutionally sustained a governmental decree to bar radicals from the public services, asserting in passing that Geiger served as a prosecutor of a special court where he "had successfully pleaded for at least five death sentences" (p. 218). Muller then proceeds to link the Constitutional Court's anti-radicals decision to the "undemocratic and authoritarian view" that Geiger expressed in an essay he wrote as a very young man in 1941. These remarks are unworthy of the author, for they are as gratuitous as they are unproven. In support of his charge he cites a virulently anti- government tract (RECHT, JUSTIZ UND FASCHISMUS NACH 1933 UND HEUTE) published in 1984. He surely must know that such sources of information, like East Germany's BRAUNBUCH, which he also frequently cites, lack credibility.

Several things might be said about the author's unfortunate remark about Justice Geiger. No sources are cited to support the claim that Geiger authored the Constitutional Court's anti- radicals opinion. Judicial opinions in Germany are institutional products. Except for dissenting opinions on the Constitutional Court authorship of judicial opinions is not a matter of public record. Secondly, whatever one may think of the prudence or propriety of the decision in this case, it can be defended in terms of democratic theory. Third, other justices with impecca- ble reputations were aligned with Geiger in the majority -- one was formerly a leading Social Democratic member of the Bundestag while another was imprisoned by the Nazis for his participation in the officer's revolt against Hitler. Fourth, as one of its first appointees Geiger could not have been selected to the Federal Constitutional Court had he fatally compromised himself during the Nazi years. Indeed, several of the persons responsi- ble for his elevation to the Court were imprisoned or persecuted by the Nazis.

[Finally, Geiger was throughout his years on the Court a close colleague of Justice Gerhard Leibholz. Owing to his Jewish ancestry Leibholz, a distinguished professor of law, fled Germany in 1938. His brother-in-law, the famous Pastor Dietrich Bonhoffer, was executed by the Nazis in 1945 for his role in the German resistance. Leibholz, however, was in many ways as conservative as Geiger, and had he been on the court in 1975 he would in all probability have voted with Geiger in the radicals case, as did Leibholz's protege, Justice Hans Justus Rinck, who succeeded him on the Second Senate. Would Leibholz in that event have opened himself to the charge of administering Nazi justice? The very suggestion is preposterous. ]

Geiger himself, a brilliant and respected jurist, has written his own impressive chapter in the development of West Germany's constitutional democracy as two Festschrifts dedicated to him in the last 15 years testify. Apparently three decades of distinguished service to one of the most vigorous constitutional democracies in the world is not enough to warrant absolution for having been in state service during the Nazi era. In Muller's eyes Willi Geiger continued late in his career to administer Nazi justice.

None of this is to suggest that West Germany's judicial record is beyond criticism, or that the German legal profession has fully come to terms with its past. One only wishes that HITLER'S JUSTICE had offered the reader a more balanced account of both the judiciary's role during the Third Reich and West Germany's record after World War II.