NO AUTHORITARIAN REGIME can be established or maintained without the judiciary’s implicit, ongoing support. In the 19th century, German judiciary was arguably the most esteemed in Europe. However, the early 20th century was marked by revolutionary turmoil, unstable governments, and rampant inflation. Between 1873 and 1914, Germany currency was the Goldmark, which was replaced by the Papiermark in 1914. Inflation led to excessive money printing, and by early 1922, the German Papiermark was valued at about 200 Marks to the U.S. dollar. By November 1923, this had skyrocketed to 4.2 trillion Marks per dollar. Consequently, a dollar in 1920s Germany would make one a multi-trillionaire. Post-World War I, the Rentenmark was introduced, stabilizing the currency, and in 1924, it was renamed the Reichsmark.
Setting the Stage
Conservatism was the mainstay of most judiciaries, emphasizing the restoration of established order and judicial authority. The courts in the Weimar Republic laid the groundwork for authoritarianism well before the Nazis formally took power in 1933. The Nazis needed the judiciary’s endorsement for legitimacy. Many judges viewed the Weimar Republic as illegitimate, and the Nazis promise to restore order reminiscent of the Kaiser resonated with them.
When the number of political prisoners held by the Ministry of Justice increased from 35,000 to 150,000 in the 1930s, jurists perceived this as normal. Jurists had no interest in questioning the legitimacy of the Nazi state, as it saved them from the abyss.
The court feared becoming irrelevant. A judge who challenged Nazi practices and opposed a secret program for killing the mentally and physically disabled was dismissed. Another judge resigned after refusing to pledge loyalty to Hitler, resulting in an expansion of power. Neither faced arrest, and dissenting officials were reassigned to distant locations.
The Courts Bow
Hitler gradually molded the judiciary to align with Nazi ideology. He used democratic rules to dismantle democracy, yet jurists failed to foresee the implications. They perceived changes as minor since they didn’t overtly affect nonpartisan jurists. Initially, only Jews and politically undesirable individuals were targeted. The Nazis transferred Supreme Court authority to try alleged treason cases to the Peoples Court in Berlin, a political tribunal led by Nazi sympathizers.
The Supreme Court was relieved of handling political issues and focused on ensuring uniform legal codes across German courts. Judges also saw opportunities for career advancement as Jews and left-leaning individuals were removed from the judiciary. Eventually, expanded police powers led to intensified interrogation techniques, with suspects appearing in court bruised and battered. When courts or lawyers questioned these methods, Hitler’s solution was to continue the torture, have police admit to using such techniques, and let the courts determine if they were justified in obtaining confessions.
Lenient treatment was afforded to Hitler and his associates by indulgent Weimar-era judges after the Beer Hall Putsch and other disturbances.
After the Nazis seized power in 1933, they initially made no moves to restructure the judiciary. German courts, divided into federal, state, and local levels, each had their hierarchy. Many German states were not yet under Nazi control, making a judicial overhaul unwise at the time.
The courts posed significant irritation in the Reichstag Fire case. The Nazis hoped judges would uncover a communist conspiracy behind the fire, but only a single Dutch national of unsound mind was convicted.
The Nazi Coup de Grâce
On February 28, 1933, Hitler persuaded a frail President Paul von Hindenburg to sign the Reichstag Fire Decree, invoking Article 48 of the Weimar Constitution. This emergency decree suspended key constitutional protections, including freedom of speech, press, assembly, and privacy of mail and phone calls. The Nazis used the decree to detain thousands of Communists, socialists, and other political opponents without trial, effectively outlawing the Communist Party (KPD) before the March 1933 elections. The decree allowed the national government to override state and local laws and seize control of regional governments.
The terror and political void following the fire enabled Hitler to pass the Enabling Act in March 1933, granting his cabinet full legislative powers and establishing a dictatorship. Hitler used these new powers to establish a Nazi court system, unaccountable to regular German courts and not bound by existing German law.
Sondergerichte, or Nazi special courts, had a wide mandate, with most legal infractions classified as political opposition crimes. The most notorious of these was the Volksgerichtshof, or Peoples Court, established in 1934 for treason trials. Trials in special courts rarely lasted more than an hour or two, resembling rituals of humiliation rather than legal proceedings. Defendants, often in clothing they had slept in during days of illegal detention and frequently shackled, faced the judge. Their defense attorneys remained silent while prosecutors and judges harassed and abused them. After the judge concluded, sentences, usually death, were pronounced without appeal, and executions often followed within hours.
In theory, regular Reich courts remained independent during the first year of Nazi rule. However, after Hitler ordered the killing of Ernst Roehm, a co-founder and leader of the Sturmabteilung (SA), and other inconvenient individuals, changes accelerated. Hitler’s speech justifying these killings set the tone for the relationship between the Nazi dictatorship and the judiciary for the next eleven years. “If anyone reproaches me for not using regular courts to convict offenders, I can only say this: in this hour, I was responsible for the fate of the German people, and thus I became the supreme judge of the German people!
Subsequently, judges in conventional courts were encouraged to go beyond trial evidence or the specific letter of the law to convict those violating German racial community notions. Joseph Goebbels, the Propaganda Minister of Nazi Germany, articulated this ideology in 1942, advocating the subversion of the legal system as an explicit goal. “We must free ourselves from the illusion that everything can and must be taken care of by a law or a regulation, and build our public and private life more than before on the natural laws of national discipline.”
The rule of law was supplanted by political opportunism and the elimination of perceived state enemies.
“There is a general perception that it was a lawless system, that the Rule of Law had been completely abandoned from the beginning. However, the reality is that Hitler used the legal system to legitimize his terroristic dictatorship and, while eventually there was a complete breakdown in the Rule of Law, it did not happen all at once; it happened over time and with the complicity of the legal profession.”
Denouement
By 1939, both the Gestapo and the SS enjoyed legal immunity before all regular courts. By 1942, as World War II intensified, any remaining semblance of judicial independence in Germany disappeared. The Reich Minister of Justice was clear:
“ ...At a time when the best of our people are risking their lives at the front and when the home front is tirelessly working for victory, there can be no place for criminals who destroy the will of the community. Those in the administration of justice must recognize that it is their job to destroy traitors and saboteurs on the home front. The law allows plenty of leeway in this regard. The home front is responsible for maintaining peace, quiet, and order as support for the war front. This heavy responsibility falls especially to German judges. Every punishment is fundamentally more important in war than in peace. This special fight is targeted especially against those designated by law as “pests.” Should a judge decide after conscientious examination of the criminal act and of the perpetrator's personality that a criminal is a “pest,” then the seriousness of this determination must also be firmly expressed in the harshness of the verdict.
The new Nazi oath for judicial officers was, “I swear loyalty to the Führer of the German Reich and people, Adolf Hitler, obedience to the law, and conscientious fulfillment of the duties of my office, so help me God.”
Contrast the aforementioned oath with the oath being taken by all state officials, including judges, before the advent of Hitler: “I swear loyalty to the Constitution, obedience to the law, and conscientious fulfillment of the duties of my office, so help me God.”
Law, as it had once been understood, was no longer paramount in legal proceedings during Hitler’s regime. Judges were increasingly working towards the thousand-year Reich. Judicial independence, once an ideal of the German state, vanished. Those ominous developments from the annals of Hitler’s Germany somehow get played out during contemporary times, intensifying alarm bells to save the Constitution and independence of judiciary so that rule of law prevails and constitutional morality is upheld.
To be Continued in Part 2
Ravi Nair Is with the South Asia Human Rights Documentation Centre
