Germany was not the only venue of misery and suffering in the post-World War I era. On every continent, human society sought to rid itself of archaic laws and religious dogma, to find a rule of law and justice, a working economy and government that was fair.
Germany was not spared any of this internal trauma but in Germany grew at cancer, a human brain tumor called Adolf Hitler. There were no moral limits to what Hitler would do to gain power as his soon-to-be mortal enemies in World War II would find. He very he routinely reneged on treaties and lied in international relations, all strategically, a chess game of deceit with opponents bound to honor.
As he acquired political power in Germany, he had many tools at his disposal and soon the statute books themselves were not spared.
In 1923, he had written Mein Kampf in which he suggested that Germany could only progress if its citizens were of the purest Aryan blood. The words ring like a madman’s to contemporary ears but by 1933, this author was the leader of the German government.
On April 7, 1933, the German government promulgated a law for the restoration of the professional civil service. This mundanely titled statute had a simple enough goal: to rid the German civil service of all non-Aryans.
Five days later, the statute bore a regulation which defined a non-Aryan any person who was equal to or greater than one quarter Jewish.
An inauspicious beginning to a policy of genocidal statutes soon to be outright horrific.
Other laws quickly followed limiting non-Aryan Germans from teaching jobs, farming, schools and universities or from holding editorial positions with German newspapers.
In 1935, the Nazi party met in Nuremberg and passed a number of laws which will pollute the record of German and human law for all time but which immediately threatened the life and safety of millions of German only because they were Jews.
The very names of these laws smacked of genocide:
- Reich Citizenship Law, and
- Law For The Protection of German Blood and Honor.
According to Kristen Rundle:
“The goal of the Reich Citizenship Law was ... disenfranchising those subjects or nationals who were not of German blood. The law established two types of subject of German law: the Reich citizen, who was required to be of German blood, and the non-Aryan, a second-class citizen who ... had obligations (to the state) but had no rights of citizenship.
“The Law for the Protection of German Blood and Honor (forbid) marital and extramarital relations between the two social groups (and) prohibited the employment of female German nationals less than 45 years of age in Jewish households.”
§2 of the Law for the Protection of German Blood and Honor defined an offence known as racial pollution:
“Sexual intercourse (except in marriage) between Jews and German nationals of German or German related blood is forbidden.”
The fear and persuasiveness of Hitler's brutal totalitarian regime was felt by the German judiciary which quickly, and to their eternal shame, fell into the Nazi cadence. The enforcement of a racial legislation was left to the courts and enforce they did. Rundle reports that “the use of the death penalty was prolific” and could be given to someone who spoke against Hitler.
In one trial under the Law for the Protection of German Blood and Honour, a Nuremberg businessman, Leo Kazenberger, also Jewish, was accused of having a sexual relationship with a younger Aryan woman. He was denounced and arrested but denied the charges as did his alleged girlfriend. The judge, Oswald Rothaug heard the case and, according to many observers, but the case as an opportunity for getting noticed by Hitler. Kazenberger was found guilty and guillotined on June 2, 1942.1
In 1938, the German Nazi government issued a regulation which revoked the medical licenses that have been issued to Jewish doctors and restricted them to the treatment of Jews. Jewish lawyers were prohibited from practise.
Later, in 1939, another law forced Jewish landlords to only house Jewish tenants.
The population got the message and began to post signs on stores and in towns denying goods and services to Jews or banning them outright. This 1943 letter was sent to the German Minister of Justice by a citizen-informant:
"After the birth of her child, a full-blooded Jewess sold her mother’s milk to a paediatrician and concealed that she was a Jewess. With this milk babies of German blood were fed in a nursing home for children. The accused will be charged with deception. The buyers of the milk have suffered damage, for mother’s a milk from a Jewess cannot be regarded as food for German children."
In 1941, the government stepped up its campaign of political genocide by commencing the expropriation of real property and other property belonging to Jews, again by statute.
In 1942, the German state proclaimed the Law Against Poles and Jews. This summary of that statute was given by the International Military Tribunal in USA v Alstoetter:
"Poles and Jews convicted of specific crimes were subjected to different types of punishment from that imposed upon Germans who had committed the same crimes. Their rights as defendants in court were severely circumscribed. Courts were empowered to impose death sentences on Poles and Jews even where such punishment was not prescribed by law, if the evidence showed particularly objectionable motives. And, finally, the police were given carte blanche to punish all “criminal” acts committed by Jews without any employment of the judicial process."
All Jews were required to wear a yellow Star of David and if found without the Star of David prominently displayed on their clothing, they were subject to severe punishments at the discretion of local law enforcement.
But in nearby Nazi-occupied Lithuania, the Nazi policy of genocide did not even bother with a semblance of statutes or kangaroo courts. Almost 200,000 Lithuanian Jews were systematically executed just because they were Jewish, many by firing squads.
One of the last statutory measures in Hitler Germany which ought even to be called a “law” or a “statute” against modern definitions, is a regulation issued pursuant to the Reich Citizenship Law on July 1, 1943. This decree transferred the enforcement and punishment of Jews for alleged breaches of the law to the lawless Secret Service, the SS. It was the end of even a semblance of judicial process for Germany's non-Aryans and homosexuals.
By 1942, the high Nazi command under Adolf Hitler had run its course with statutes and justice, concepts anathema to the fear and control so essential to Nazism. Already secretly approved and about to be implemented was a far more sinister expression of genocide, the so-called Final Solution to the Jewish Problem.
By 1942, there was no longer any need to play out the charade of legislation or statute. In the words of the then-minister of Justice Rothenberg:
"The judge is on principle bound by the law. The laws are the orders of the Fuehrer (Adolf Hitler).... With the Fuehrer a man has risen within the German people who awakens the oldest, long forgotten times. Here is a man who in his position represents the ideal of the judge in its perfect sense, and the German people elected him for their judge—first of all, of course, as judge over their fate in general, but also as supreme magistrate and judge."
Today, Germany is a free and democratic society with a wealth of true statutes and a judiciary which is the measure of that of any other.
As the interlude of medieval Nazi law slowly recedes into the pages of history, it will always (hopefully) remain the last vivid and dark chapter of how statutes and the justice system can become the tools of the tyrant and the unjust.
- Duhaime, Lloyd, Eberhardt Schoengarth: Nazi Lawyer, May He Rot in Hell
- Duhaime, Lloyd, Otto Thierack (Nazi Germany), "Their Jewishness"
- Duhaime, Lloyd, Pierre Laval (France), biography
- Duhaime, Lloyd, Oswald Rothaug (Law's Hall of Shame)
- Duhaime, Lloyd, Their Jewishness
- Note 1: Rothaug was tried at Nuremberg after the war, in 1947, in part because of the Katzenberger trial, and was sentenced to life in prison but was released in 1956 at the age of 59
- Rundle, K., The Impossibility of an Exterminatory Legality: Law and the Holocaust, 59 UTLJ 65 (2009)
- Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany (New York: Simon and Schuster, 1960)
- United States of America v. Alstötter et al., 3 T.W.C. 1, 6 L.R.T.W.C. 1 and at 14 Ann. Dig. 278 (1948)