German legal system failed

CYNTHIA RAMSAY

“There is no guaranteed safeguard. One thing I have learned is that the German constitution was a fabulous document and it was enormously democratic, it had safeguards like you would not believe, but it’s people that are the safeguard, and that’s the thing. I mean, there are professional values ... but it’s really that individual struggle with doing justice that’s important, that’s at the core of it.”

This was one of the main take-aways from historian Dr. William Frederick Meinecke Jr.’s lecture at the Jewish Community Centre of Greater Vancouver Wosk Auditorium on Nov. 15. Meinecke, who was speaking as a representative of the U.S. Holocaust Memorial Museum, based his talk on the museum’s document Law, Justice and the Holocaust, which he co-wrote with Alexandra Zapruder. Meinecke was in Vancouver to address British Columbia’s legal professionals and, due in large part to the efforts of lawyer, educator and Vancouver Holocaust Education Centre board member Barbara Buchanan, who introduced him at the lecture, he also spoke to members of the Jewish community.

Vancouver Holocaust Education Centre executive director Nina Krieger welcomed the audience at the JCCGV, explaining, “Professions, by definition, are committed to winning public confidence by knowledge-based and ethical practice. Under Nazism, Jewish lawyers, doctors, academics, judges were stripped of their ability to practise their professions. Gentile professionals practised in a new professional arena purged of former Jewish colleagues. Tonight, we will reflect on the role of the judiciary in Nazi Germany.”

Meinecke began by stressing that he wasn’t going to talk about Nazis. “I don’t think you can learn much from Nazis,” he said. “They spout their ideology and they act upon that ideology, and you really can’t talk morality with them, or ethics with them.” Rather, in researching Law, Justice and the Holocaust, Meinecke said he “wanted to examine non-Nazi professionals, the people who were already doing their profession when the Nazis came to power. What kinds of dilemmas did the demands of a Nazi German state place on them and how did they respond to that, and how can we understand their response to that.”

The first part of Law, Justice and the Holocaust is about “the easy transition between democracy and the Nazi dictatorship,” said Meinecke. “It’s a whole series of legislative actions ... laws that mark the transition from democracy to dictatorship. The Nazis claim, and really espouse, being a revolutionary party, but they acted through law, and it’s important to see how that unfolded and how they presented it to the German public through the [legal] actions.”

The second half of the document, he said, includes some of the judicial decisions made during that period, giving an idea of the role that the court system played in promulgating the Nazi racist agenda.

Meinecke began the substance of his lecture by discussing the situation in Germany at the time that Adolf Hitler was appointed chancellor.

“The experience of the republic was not a happy experience for professionals,” he said. “There was, in addition to the lost war, World War One, there is the economic crisis, the inflation in ’23, the Depression hits in ’29. Six million Germans were thrown out of work, millions of others are dependent on public food kitchens ... they begin to lose faith in the parties that support the republic to solve the problem, to end the suffering ... and they begin to look for radical solutions; radical solutions meaning communists and Nazis. The only time those parties work together is to block functioning in parliament so the two, by 1932, are so strong that, together, they can block all legislation moving through parliament, so parliament is no longer able to function, which leads then to a constitutional crisis.”

With the German public so polarized, the powers of the president expand, explained Meinecke. “This leads us then to this situation where the president on his own authority appoints Hitler chancellor in an attempt to restore orderly government, to end the economic crisis, the political crisis and the constitutional crisis. For [President Paul von] Hindenburg, this is a gambit ... that makes sense to him because the Nazis are ... in a weaker position.”

In the November 1932 election, said Meinecke, the Nazis had lost two million votes, and were seemingly on a downward trajectory. As chancellor, Hitler became part of a “coalition government dominated by non-Nazis.” However, an attack on the German parliament building in February 1933, blamed on communists reacting to Hitler’s appointment, caused panic.

“Hitler goes hat in hand to the president and says, ‘Herr President, the reaction that we’ve expected all along has happened, I need emergency authority to restore order.’ It made sense to the president, so he issued the decree under Article 48 of the Weimar Constitution, the Decree for the Protection of the People of the State,” said Meinecke. “Brilliant use of language. Who can be opposed to a decree that protects the people in the state, right? What it did in fact was to put out of force important provisions of the constitution, those that safeguarded individual rights and due process of law.”

In the early days, as civic unrest continued, Meinecke said that some 25,000 people in Prussia alone were put into concentration camps by police, but most were released quickly, with only the “hard core” Nazi political opponents remaining imprisoned. “By 1935, there’s only about six or seven thousand of them in concentration camp[s],” he explained. “If you look at the prisons run by the ministry of justice, on the other hand, their numbers have swelled from about 35,000 in 1932 to 150,000 by 1935, and three quarters of those prisoners are political prisoners.”

Meinecke gave the example of attorney Dr. Michael Siegel who, upon finding out that one of his clients had been arrested by police and taken to a concentration camp, asked questions. Heading down the stairs at the police station, Siegel was severely beaten by Stormtroopers and then marched through the streets of Munich in torn clothing and bare feet, with a sign around his neck saying: “I will never again complain to police.” The photo was dated March 10, 1933.

Such displays of public humiliation were happening all over Germany, said Meinecke, serving the triple purpose of telling Jews that the police would not protect them, non-Jews that they could do anything to Jews without repercussion, and lawyers and judges that they should think twice before inquiring about clients. Requests to Hindenburg to rein Hitler in went unheeded, continued Meinecke. “Instead, he [Hindenburg] says, ‘Look, I was commander-and-chief of the armed forces in World War One, I feel an obligation to those men who fought for me, so go ahead and regulate the situation but make an exception for those Jewish Germans that fought for me. They showed that they were really German by being willing to risk their blood for Germany.’ So, what comes from this is the first piece of national legislation that sets up a two-tiered system of rights, one for those defined as German under the law and those defined as Jewish under the law.”

As Law, Justice and the Holocaust explains, “The first major law to curtail the rights of Jewish citizens was the Law for the Restoration of the Professional Civil Service of April 7, 1933, which excluded Jews and the ‘politically unreliable’ from civil service. The new law was the German authorities’ first formulation of the so-called Aryan Paragraph, a regulation used to exclude Jews (and often, by extension, other ‘non-Aryans’) from organizations, professions and other aspects of public life. This would become the foundation of the Nuremberg Race Laws of 1935, which defined Jews not by religious belief but by ancestral lineage and which formalized their segregation from the so-called Aryan population.”

On the basis of this law, said Meinecke, about 10 percent of judges and 25 percent of lawyers were removed from their positions. The glut of lawyers that had resulted in some 40 percent reporting incomes below 3,000 reichsmark by 1933 was reduced to the extent that, by 1939, the average annual income had quadrupled.

There were also jurist re-education camps, which members of the legal profession were required to attend for at least six weeks. Two main principles were stressed at these camps, said Meinecke: “what’s good for the community supersedes justice for the individual,” and “sound popular instinct, the idea that judges especially had become too removed from the ordinary experiences of ordinary people,” and that there was a need for “a kind of justice that’s innately understood by the public, that’s spoken in plain language,” that judges should not be so concerned with written law, but in ensuring that the public was able to see and understand the justice being meted out.

Meinecke gave several examples of legislative acts that, step by step, took Germany further into dictatorship with little resistance from legal professionals, including, after Hindenburg died in August 1934, an oath of loyalty for all state officials to Hitler, as well as an oath for lawyers going to the bar. Hitler basically became the source of law, but, because Hitler didn’t want to be limited by law, he gave freedom for judges to interpret laws in accordance to “the changing circumstances of the national socialist state,” and to even ignore precedence, which allowed Hitler to continue implementing arbitrary measures and to oppose whichever legal decisions he didn’t like.

Meinecke concluded his detailed remarks by saying that Hitler’s tactics meant that there was “no simple method to make sure that you’re always doing justice,” and that this unreliability applied to all Germans, not only those systematically targeted by the Nazis and, “when you can’t turn to a court for redress of grievances anymore, then you have to say that that court system failed.”

For Law, Justice and the Holocaust and other educational material, visit ushmm.org/education/foreducators/resource.

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