Home > Uncategorized > Lawyers, Judges, and the Road to Fascism – posted 3/14/2018 and published in the Concord Monitor on 3/22/2018

Lawyers, Judges, and the Road to Fascism – posted 3/14/2018 and published in the Concord Monitor on 3/22/2018

Back on February 16, the New Hampshire Bar Association held its annual mid-year meeting. This year the program was a little different. Instead of the usual continuing legal education event, the Bar brought in two historians, Anne O’Rourke and Willliam Meinecke Jr., from the United States Holocaust Museum, to look at how German lawyers and judges responded to the destruction of democracy and the establishment of the Nazi state.

Their presentation showed that the worst horrors of the Nazi regime did not arrive full-blown. Rather, the road to fascism was taken in gradual incremental steps, each one preparing the way for the next.

While German lawyers and judges might have opposed Hitler’s authority and the legitimacy of the Nazi regime, they failed to do so. Not only did they fail, they collaborated and interpreted the law in a way that broadly facilitated the Nazis’ ability to carry out their agenda.

Admittedly, there was a very narrow window to dissent. Courts interpreted every appearance of coolness toward the regime as a breach of professional standards. insufficient enthusiasm for the regime could be a basis for getting disbarred.

O’Rourke and Meinecke pointed to a number of decrees by the Nazis that they used to consolidate their power and advance their program. After the February 1933 fire in the Reichstag, the German parliament,  the Nazis suspended critical provisions of the German constitution, including right to assembly, freedom of speech and freedom of the press.

They also removed all restrictions on police investigations. They rounded up political opponents, particularly Communists, Socialists and Social Democrats, holding them in preventive detention and sometimes disappearing them altogether. Relying on the Reichstag Fire Decree, the Nazis held people without specific charges. Defendants had no right to appeal, no access to a lawyer or right to judicial review.

The German Supreme Court did not balk at the new power arrangement. Sadly, the Court failed to challenge or protest the loss of its judicial authority.

Less than one month after the Reichstag Fire Decree, the Nazis enacted an Enabling Act that allowed them to promulgate and establish laws that violated the Weimar Constitution. Under the Enabling Act, they did not need the approval of then-President von Hindenberg or the parliament. The passage of law had previously required a two-thirds majority vote in parliament.

The Nazis prevented their parliamentary opponents from taking their seats, detaining them in camps. They stationed their thugs in the parliamentary chamber to intimidate remaining representatives.

The German Supreme Court did nothing to challenge the Enabling Act. The Court saw itself as a loyal state servant, owing allegiance to Hitler. Law became a means to serve the Aryan race. What was defined as good for the race became good law.

In July 1933, the Nazis enacted another new law against the founding of new political parties. With this law, they outlawed all other political entities and made themselves the only allowed party in Germany.

When President von Hindenberg died in August 1934, Hitler assumed power as Reich Chancellor and Fuhrer. The oath of loyalty for all state officials was changed. Rather than pledging loyalty to the German constitution, a new oath required loyalty to the Fuhrer.

O’Rourke and Meinecke showed how anti-semitism and the persecution of the Jews were a centerpiece of the Nazi enterprise. During the first six years of Hitler’s dictatorship, Jews were subject to more than 400 restrictive decrees and regulations. Among other things, the Nazis removed Jews from government service, forbid their admission to the Bar, banned Jews from editorial posts, and prohibited them from marrying or having sexual relations with persons of “German or German-related blood”.

By April 1933, the state ministries of justice suspended from duty all Jewish judges, public prosecutors and district attorneys. Also all professors of law who were Jews and those few who were not conservatives were driven out of universities and dismissed.

About this time period, the Holocaust historian Raul Hilberg wrote:

“… 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 those mental somersaults.”

It is impossible to know what degree of ambivalence or conflict German lawyers and judges had with the Nazification of the law. Hilberg wrote that the Nazis were obsessed with a need for legal justification. Even with the death of due process and any semblance of individual rights, the Nazis craved the appearance of legality.

Years before the Holocaust, the German judiciary had already rationalized the absolute debasement of law at the service of the Nazis. Considering the early years, what came later cannot be too surprising. There was never any outrage about the systematic removal of Jewish lawyers and judges from the German legal world.

So what lessons can we learn from the German experience? Why did the lawyers and judges turn out to be so weak, pliable and accommodating?

First, I would cite the failure of critical thinking by both lawyers and judges. They offered themselves up to the Nazis to do their bidding. The legal profession proved to be either too conformist or careerist to take chances and rock the boat. Lawyers and judges played it safe to try and get ahead.

By going along, they gave the Nazis a big gift, what the historian Timothy Snyder has called “anticipatory obedience”. If lawyers and judges had said “no” that would have caused significant problems. The Nazis desperately wanted at least the appearance of lawyer/judge buy-in to give themselves legitimacy.

Sadly, as Snyder pointed out in his book On Tyranny, most of the power of authoritarianism was freely given. The Nazis’ rise to power relied on zealous support from German conservatives and nationalists in the courts.

There was a massive failure of professional ethics. Somehow doing the right thing was replaced by subordination to a demagogue. We should remember that lawyers were vastly over-represented among the commanders of the Einsatzgruppen. The Einsatzgruppen were the death squads of Nazi Germany who were responsible for mass murder of Jews, Gypsies, Polish elites, Communists and the handicapped.

The experience of German lawyers and judges shows the need for a genuinely independent judiciary, regardless of what political party holds power. Without genuine independence, justice as an ideal disappears. What is left is glorification of power.

In all that has been written about the Nazis, I find it surprising how little attention has been paid to the collaborationist role of lawyers and judges. In an allegedly rule-of-law state, the Nazis needed lawyers and judges. For Americans today, the German experience provides a sobering example of how a nation’s legal and judicial systems can be made to aid and abet a rogue regime’s gradual descent into barbarism.

Advertisements
  1. No comments yet.
  1. No trackbacks yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s

%d bloggers like this: