Jonathan P. Baird

Over 25 years ago psychiatrist Robert Jay Lifton wrote an excellent book entitled “The Nazi Doctors”. The book looked at the role of doctors in the Third Reich. It tells the almost unbelievable story of how a noble profession dedicated to healing could become an agent of medical mass murder and horrendous, unspeakable experiments.

Being Jewish, a lawyer, and a judge, I have been curious how German lawyers and judges adapted to the ascendancy of fascism. I was not aware of any book like Lifton’s that has looked at how lawyers and judges behaved. I have  wondered: did they fight Nazism, collaborate, accommodate or simply lie low.

While I figured there would probably be a shameful story of cowardice and accommodation, I thought it would be interesting to investigate. The concept of the rule of law is in contradiction to Nazism yet I had never heard that lawyers and judges, as collective entities, actively or prominently opposed the Nazi drive to power.

From my past reading, it was my understanding that the Left, particularly the Social Democrats and the Communists, formed the main opposition to the Nazis. I know the Nazis had incarcerated thousands of leftists. I never heard about lawyers and judges.

I should say at the outset that I am not a historian. I am limited in source material. I have relied on Raul Hilberg’s work and two histories, “The Third Reich” by Michael Burleigh and “The Social History of the Third Reich 1933-1945” by Pierre Aycoberry. I did become aware of a good book by Ingo Muller, a German lawyer, entitled “Hitler’s Justice: The Courts of the Third Reich” which I have not had a chance to read. Still, I want to offer some observations.

Neither German lawyers nor judges ever mounted any effective opposition to the Nazis. The legal profession largely accommodated and collaborated with the Nazis. History shows a series of increasing restrictions and decrees focused against Jews by which the Nazis advanced their agenda. Professionals, including lawyers and judges, were all too willing to go along. Individual opponents were weeded out, threatened, purged and removed but the legal profession largely acquiesced. Hilberg stated:

“…a lawyer necessarily had to face at every turn the critical question of harmonizing peremptory measures against Jews with law. In fact this alignment was his principal task in the anti-Jewish work. Yet, in the end, lawyers, no less than physicians, mastered these mental somersaults.” (“Perpetrators, Bystanders and Victims” by Raul Hilberg p. 65-66)

Hilberg shows that from the first days of the Nazi regime, the legal profession was preoccupied with the ouster of Jewish lawyers. As early as 1933, many Jewish lawyers were getting disbarred solely on the basis they were Jewish.
The Nazis promulgated an April 7, 1933 Law for the Restoration of the Professional Civil Service which applied their blood and master race theories. If you were not Aryan, the Nazis eliminated you from practicing law. In Prussia, they dismissed 128 Jewish judges and state prosecutors that way.

The 1933 law did not eliminate all Jewish lawyers. Jewish lawyers who were disabled World War I veterans remained in practice. However, the legal profession, following the Nazis, aggressively demanded the removal of all Jewish lawyers. With the fevered pitch of anti-semitism rising, practice for Jewish lawyers and judges was made more difficult and ultimately impossible. By 1938, the legal profession restricted Jewish lawyers so they could only represent Jewish clients. Also, the legal profession took the title of lawyer away. Jewish lawyers were downgraded and given the new title “consultant”.

This gradual process by which Jews lost their rights happened on a wide range of fronts. Since Jews were classified as a sub-human “enemy of the Reich” by definition, they were not entitled to rights such as where they want to live, who they want to marry or sleep with, who they want to contract with etc. Jews could be evicted from their apartments because a lease was an instrument for a community of tenants to which a Jew could not belong.

The German Bar and Judiciary  spent great amounts of time mulling over Nazi-inspired legislation and crafting anti-Jewish law. To quote Hilberg again:

“To be defined as Jews, they only had to have had Jewish parents and grandparents. Discriminatory laws and regulations dealt in great detail with such problems as partners in mixed marriages, individuals with mixed parentage, and enterprises with mixed ownership. With each successive step, the gulf became wider. The Jews were marked with a star, and their contacts with non-Jews were minimized, formalized, or prohibited. Segregated in houses, ghettos, or labor camps, they were spatially isolated and concentrated.”  (“Perpetrators, Bystanders, and Victims” by Raul Hilberg p. X, preface)

In addition to their “laws”, the Nazis relied on thuggery. Anti-Nazi judges faced threats of violence from street toughs. Nazi officials would let judges know they were withdrawing any guarantee of protection. Amazingly, there is only one documented case of a judge who resisted and he received early retirement. The behavior of legal academics was equally dismal – another story of capitulation.

The Nazi attitude toward the law was disdain. The idea of an independent judiciary was anathema to them. Burleigh explains it this way:

“The Nazis followed many authoritarian Weimar constitutional theorists in claiming that existing law was abstract, unGermanic and overconcerned with individual rights and material interests. A dessicated law had ceased to reflect ‘racial morality’ and pulsating popular instinct. Revolutionist contempt for bourgeois justice combined with righteous indignation about the Nazis own persecution during the time of the system.”  (“The Third Reich” by Michael Burleigh p. 158)

The Nazis were conscious of the need for legal justification but they did not see law as an absolute value in itself. For them, law was instrumental. Hilberg wrote:

“Lawyers were everywhere and their influence was pervasive. Again and again, there was a need for legal justification. When the number two Nazi, Herman Goring, suggested in the course of a discussion at the end of 1938 that German travelers could always kick Jewish passengers  out of a crowded compartment on a train, the Propaganda Minister, Joseph Goebbels, replied: “I would not say that. I do not believe in this. There has to be a law”.  (Perpetrators, Bystanders and Victims” by Raul Hilberg p. 71)

The Nazis were big on formulating and promulgating decrees. Agencies would draft decrees that would be published in legal gazettes. Nazi bureaucrats would coordinate the matter of jurisdiction. Decrees could be given wide and diffuse interpretation. If not so sinister, these decrees could be a form of black humor. They were farcical as a matter of law. They were a veneer that covered the mutilation of procedural due process.

Hilberg has a provocative discussion about legal interpretation by the Nazi era German judiciary. He discusses a series of court decisions construing what was called the Law for the Protection of German Blood and Honor. This was a law that prohibited entry into a marriage as well as extramarital relations between Jews and Germans. Hilberg stated:

“…the courts ruled that sexual intercourse did not have to be consummated to trigger the criminal provisions of the law: sexual gratification of one of the persons in the presence of the other was sufficient. Touching or even looking might be enough. The reasoning in these cases was that the law covered not only blood but also honor, and a German, specifically a German woman, was dishonored if a Jew made advances toward her or exploited her sexually in any way.”  (“Perpetrators, Bystanders, and Victims” by Raul Hilberg p. 72)

If a Jewish defendant argued that he was unaware of the German background of his partner and he therefore lacked intent to violate the law, the court held that any Jew about to have sex with a German woman had first to obtain satisfactory documentary proof of her status. He could not rely on her assurance that she was of Jewish background. Such crazy interpretations became the norm.

As the Nazis proceeded to move Jews and others into the concentration camps for the Final Solution. there was no cry of outrage from the lawyers and the judges. There were no court cases raising due process, equal protection or other substantive defenses. Nor were there any Bar Association declarations or judicial pronouncements of opposition. What could have been a contrarian profession failed to say “no”.

Recognizing this history, what universal lessons, if any, are specific to lawyers and judges? Why did the lawyers and judges prove to be so weak, pliable, and accommodating? I will not even get into the how this could have happened. There are so many related questions and inquiries.

Experience shows the necessity for the rule of law and an independent judiciary, regardless of social system. I would say that is true under capitalism, socialism or really any system. Without the rule of law and an independent judiciary, there is no ultimate protection for individuals who are different because of religion, race, sex, sexual preference or political perspective (and even that may not be enough). The history of fascism shows what happens when legal machinery is fastened to a totalitarian project. The law transforms into a form of justification for ludicrous ends. The often tenuous relationship between law and justice is sundered. Lawyers and judges become mouthpieces for monsters.

The roles of lawyer and judge are both subject to opportunism and careerism. The perception of personal advancement can dictate going along, not rocking any boat, and, as happened with Nazism, degenerating into moral bankruptcy. Why so many went along and so few resisted is sobering. Personal profit, fear, anti-semitism, and a sick pride in being part of the Volk may all be reasons. Some took advantage of Jewish misfortune and did personally profit.

The idea of universal human rights was apparently an abstraction with no payoffs. It doesn’t appear too many lawyers or judges calculated there was a problem when the anti-Jewish laws came along. Demonizing the other apparently resulted in a stronger feeling of identity for the remaining members of the profession. For those who may have harbored doubts, the cost/benefit ratio probably was cautionary. As the Nazis consolidated power, the risks in opposition heightened. Nevertheless, the lack of principled opposition to the Nazis is a permanent stain and a forever disgrace on the German legal profession.

While beyond the scope of this blog entry, the lack of accountability for Nazi era behavior by the German Bar and Judiciary after the war is another story deserving of more attention.  The broad community of lawyers and judges escaped any day of reckoning. But that is a subject for another day…