THE PENAL CODE in Germany, much like many other countries, did not differentiate between political and criminal offenses. Consequently, all cases were treated as criminal. The Nazis exploited the emergency legislation of 1933 to justify the establishment of the Special Courts and the National Socialist Peoples Courts. This law reinforced the judiciary’s political role, allowing judges sympathetic to Nazi ideals more freedom to handle political cases.
The Peoples Court was not initially founded by Hitler but by Kurt Eisner, Bavaria’s first Prime Minister. The Bavarian Peoples Courts were special emergency courts set up in November 1918 during the Bavarian Revolution by Eisner. Although originally intended as temporary revolutionary tribunals to ensure public safety, they eventually became a tool that turned against leftists and democrats.
After his release from prison, Kurt Eisner staged a bloodless coup in Munich on November 7, 1918, alongside soldiers and workers councils. This forced King Ludwig III to flee. The next day, Eisner declared the formation of the Peoples State of Bavaria, announcing it as a democratic and socialist republic. He became the first Jewish head of state in German history. However, after a significant election defeat in January 1919, Eisner agreed to resign. Tragically, he was assassinated on February 21, 1919, while on his way to formally deliver his resignation. His assassination triggered immediate violence in parliament and a funeral procession of 100,000 mourners that led to a civil war in Bavaria. This political instability opened the door for the short-lived Bavarian Soviet Republic, which was later violently suppressed by right-wing paramilitary groups. This turbulent period set the stage for Adolf Hitler and the Nazis rise in Munich during the early 1920s.
Bavaria shifted into a reactionary jurisdiction, known as the Ordnungszelle or nucleus of order. Instead of dismantling Eisner’s special courts, the new right-wing government retained them, using their frameworks to prosecute leftists and trade unionists.
In 1924, right-wing forces took control of these courts, originally set up by Eisner outside the Weimar Republic’s federal oversight. The courts eventually became lenient venues for trying right-wing cases.
When Adolf Hitler and Erich Ludendorff attempted to overthrow the government during the 1923 Beer Hall Putsch, they were tried by the Bavarian Peoples Court. Under normal federal law, Hitler would have faced severe charges of treason and likely deportation to Austria. However, the court’s right-leaning judges allowed Hitler to use the trial as a political platform, resulting in a lenient five-year sentence. He served less than a year in Landsberg Prison, where he wrote Mein Kampf, and was protected from deportation because the court claimed he thought himself a German.
Under federal pressure, due to their judicial bias and lack of constitutional standardization, Bavarian authorities agreed to dissolve these tribunals on April 1, 1924, formally ending their operations in May 1924. This dissolution happened without significant changes for those on the bench.
The end of the Weimar Republic occurred legally. Hitler did not seek to abolish the Weimar Constitution but rather transformed it into a nationalist socialist framework. The Enabling Bill allowed laws to deviate from the constitution, and many Germans, fearing disunity, believed they needed a Führer, or leader. The Enabling Act enabled Hitler to place the Führer Principle at the judiciary’s core. The Nazis aimed to subordinate the State to the party and its ideology, as stated in the German Civil Service Law of 1937, which defined civil servants as administrators of the state’s will according to the Nazi Party. In Germany’s highest court, it was declared that the Volk, or People, was the ultimate criterion, not the state. The Nazis viewed the existing state as temporary, with appointments and advancements in the judiciary and bureaucracy requiring party approval. When certain SA leaders were investigated for wrongful killings, they were eliminated shortly after investigations began. National Socialism viewed itself as the ultimate expression of the Volkengemeinschaft, or racial national community, which it claimed to lead. The Nazis used formal procedures within the Weimar Constitution but did not derive their definition of justice from it. Judges even used the NSDAP (Nazi) Party Programme as a legal basis for court arguments!
As the Third Reich consolidated power, it appeared to practice continuity. The 1933 Law concerning the Restoration of National Professional Civil Service forced Jewish judges and lawyers into early retirement, limiting their access to German courts. There was debate about whether the Volksgerichtshof, Peoples Court or the Reichsghericht, the Supreme Court of the Reich, was higher. Both courts were to have five judges, with three for minor trials. The cabinet decided that for the Volksgerichtshof, only one presiding judge and one assisting judge needed to be professionals, while the remaining judges required no formal legal training.
No judge could refuse nomination to the Volksgerichtshof, and this applied to all judges at all levels. The court had no budget, and appeals for funds to the Ministry of Finance were repeatedly rejected. As a result, judges for the Volksgerichtshof were sent from other courts. The Ministry of Justice manipulated this to favor the Volksgerichtshof, appointing judges for life and making them interchangeable with judges from the Reichsghericht. In 1936, a law made the Volksgerichtshof a formal organization, requiring its permanent members to be professional judges with at least 35 years of experience. Honorary lay judges were appointed for five-year terms. The Ministry of Justice aimed to make the Volksgerichtshof, the Supreme Court of the state, arguing that the Reichsghericht could be done away with if an appeal and review senate were created within the Volksgerichtshof.
The second President of the Volksgerichtshof did not hesitate to alter the law in line with National Socialist ideals. In the Volksgerichtshof, lay judges vastly outnumbered professional judges. By 1939, 95 lay judges served, including 30 armed forces officers, 4 police officers, and the rest were members of the SS, the Nazi Party’s major paramilitary organization.
The National Socialist criminal justice system classified political crimes as the most severe. Verbal orders to state prosecutors from the Ministry of Justice’s secretary ensured judges secure formally and irrevocably the guarantee of the National Socialist revolution and evolution.
Cooperation between the Prosecutor’s office and Nazi agencies was emphasized. Traditional German judiciary practices were largely discarded, justified by the impending war. Preventive detention was extensively used, and Jews, Gypsies, and other minorities were stigmatized.
The Volksgerichtshof operated under the existing penal code, the Strafgesetzbuch (StGB), which, along with similar laws based on the Enabling Act and Führer’s orders, extended the penal code scope.
The Nazis rejected the idea that political conviction differentiated criminal acts. The 1933 Emergency Decree allowed for the confiscation of printed matter or newspapers deemed treasonous. The 1933 Presidential Decree suspended key constitutional rights. Actions by Germans against their country abroad were made punishable, and threatening treason was equated with committing treason. Treason was viewed as the lowest form of criminality, and if not sentenced to death, individuals could be detained indefinitely. The Volksgerichtshof’s scope was not exclusive, allowing some cases to be transferred to lower courts to avoid burdening the Volksgerichtshof, though it could oversee these cases. Under German law, when imprisonment sentences were given, a citizen’s civic rights, including the active and passive franchise, could be suspended. Passive franchise refers to the right to run for public office, while active franchise is the right to vote.
When a state adopts an authoritarian path, the law, intelligence agencies, security forces and judiciary become facilitators. To understand this fully, one must study the political history of regions like South America, Africa, Asia and Eastern Europe.
Steven Levitsky and Daniel Ziblatt in their book, “How Democracies Die,” published in 2018, with deep anguish noted the capture of judiciary by autocrats to demolish democracy and poignantly observed, “This is how elected autocrats subvert democracy—packing and “weaponizing” the courts and other neutral agencies, buying off the media and the private sector (or bullying them into silence), and rewriting the rules of politics to tilt the playing field against opponents.” “The tragic paradox of the electoral route to authoritarianism,” he sharply observed, “is that democracy’s assassins use the very institutions of democracy—gradually, subtly, and even legally—to kill it.”
Such a playbook of “assassins of democracy” perfected in Hitler’s Germany is now being invoked by powers that be. The sinister phenomenon of judges becoming deferential to the executive has caused a calamitous situation fueling elected autocracies to fatally assault the Constitution and ask for burial of constitutional morality. What is of paramount necessity is to remain immune to the pathologies of the Nazi era to save democracy, adult franchise and above all the Constitution.