“Non-Germans” under the Third Reich: The Nazi Judicial and Administrative System in Germany and Occupied Eastern Europe, with Special Regard to Occupied Poland, 1939-1945

By Diemut Majer

Under the legal and administrative system of Nazi Germany, people categorized as Fremdvölkische (literally, “foreign people”) were subject to special laws that restricted their rights, limited their protection under the law, and exposed them to extraordinary legal sanctions and brutal, extralegal police actions. These special laws, one of the central constitutional principles of the Third Reich, applied to anyone perceived as different or racially inferior, whether German citizens or not.
“Non-Germans” under the Third Reich traces the establishment and evolution of these laws from the beginnings of the Third Reich through the administration of annexed and occupied eastern territories during the war. Drawing extensively on German archival sources as well as on previously unexplored material from Poland and elsewhere in eastern Europe, the book shows with chilling detail how the National Socialist government maintained a superficial legal continuity with the Weimar Republic while expanding the legal definition of Fremdvölkische, to untimately give itself legal sanction for the actions undertaken in the Holocaust. Replete with revealing quotations from secret decrees, instructions, orders, and reports, this major work of scholarship offers a sobering assessment of the theory and practice of law in Nazi Germany.

Published in association with the United States Holocaust Memorial Museum

• Language: English
• Publisher: Texas Tech University Press
• Release date: Apr 14, 2020
• ISBN: 9780896728172

Diemut Majer

Diemut Majer is a professor of public law, constitutional legal history, and comparative law at the University of Bern and a lecturer in European law at the University of Karlsruhe.

Book preview

Non-Germans under the Third Reich:

The Nazi Judicial and Administrative System in Germany and Occupied Eastern Europe, with Special Regard to Occupied Poland, 1939–1945

DIEMUT MAJER

TRANSLATED BY

Peter Thomas Hill, Edward Vance Humphrey, and Brian Levin

Texas Tech University Press

Published in Association with the United States Holocaust Memorial Museum

Contents

Preface to the English-Language Edition

Foreword to the Second German Edition (1993)

Preface to the Second German Edition (1993)

Foreword to the First German Edition (1981)

Preface to the First German Edition (1981)

Abbreviations

List of Illustrations

Introduction

I. The Tense Relations between State Leadership and State Administration in the National Socialist System of Government

II. Law and Administration as Partly Autonomous Powers in the National Socialist System of Government

1. Persistence and Continuity

2. Structural Elements

III. Legal and Administrative Principles in the National Socialist State

1. The Führer Principle

a. The Concept

b. The Making of an Absolute

c. Effects on the Governmental Sector

aa. Outlines of the "Völkisch Constitution"

bb. The Führer Principle and State Organization

cc. The Führer Principle and the Administration of Justice

2. The Principle of the Primacy of Party over State (Politicized Administration)

a. The Integration of Party and State Personnel

b. Organizational Integration of Party and State

c. The Influence of the NSDAP on Government Personnel Policy

d. Coordination (Gleichschaltung) of the Reich Administration: The Example of the Judiciary

3. The Principle of Völkisch Inequality (Special Law)

a. The National Socialist Idea of the Volksgemeinschaft as the Basis of Völkisch Inequality

aa. The Racial Basis of the Term Volksgemeinschaft

bb. The Reinterpretation of the Concept of Race as the Idea of the Völkisch and Its Delineation in Constitutional Theory

b. The National Socialist Concept of Völkisch Equality

c. The National Socialist Concept of Völkisch Inequality: The Principle of Special Law

d. Targets for the Implementation of Völkisch Inequality

aa. Jews

bb. Other Non-German Minorities

cc. Non-Germans in General

dd. Racially Undesirable Liaisons

ee. Undesirable Persons or Groups: The Principle of Special Law as the Central Concept of National Socialism

e. Territorial Differences

Part One: The Principle of Special Law against Non-Germans in the Area of Public Law (General and Internal Administration with Supplementary Areas)

Section One: The Implementation of Völkisch Inequality in the Altreich

I. General Outlines

II. Civil Service Law

1. The Law for the Restoration of the Professional Civil Service, April 7, 1933

2. The German Civil Service Code, January 26, 1937

III. Race Legislation in the Narrower Sense

1. The Law for the Prevention of Progeny with Hereditary Diseases (Eugenics Law), July 14, 1933

2. The Law for the Protection of German Blood and German Honor, September 15, 1935

3. The Law for the Protection of the Hereditary Health of the German People (Marital Hygiene Law), October 18, 1935

4. The Marriage Law, July 6, 1938

IV. Citizenship Law

1. The Law on the Revocation of Naturalization and the Deprivation of German Citizenship, July 14, 1933

2. The Reich Citizenship Law, September 15, 1935 (Reichsbürgergesetz)

3. Plans for New Regulations

4. The Position under Constitutional Law of the Jews with German State Subject Status Living Abroad: The Eleventh Decree to the Reich Citizenship Law, November 25, 1941

5. The Constitutional Status of Non-German Inhabitants of the Reich and the Occupied Territories: Conditional State Subject Status, Protected Status, and the Consequences (Ethnic Gradation)

V. Professional and Labor Law

1. Professions Subject to State Licensing

a. Attorneys and Related Professions

b. Physicians and Related Professions

2. Other Liberal Professions

3. Labor Law

a. Jewish Workers

b. Excursus: The Special Treatment of the Alien Workforce

VI. The Cultural and Social Sector

VII. Commercial and Property Law

1. Measures for Dispossessing Jews of Their Property

a. Dispossession Measures Following the Reichskristallnacht

b. The Decree on the Registration of Jewish Property, April 26, 1938, and the Decree on the Utilization of Jewish Property, December 3, 1938

c. The Eleventh Decree to the Reich Citizenship Law, November 25, 1941

d. The Dispossession of Jewish Property on the Basis of Other Regulations

2. The Treatment of Polish Property in the Altreich

Excursus: Tax Law

VIII. Discrimination against Non-Germans in Public Life

1. Identification Requirements

2. Restrictions on Freedom of Personal Movement

3. Non-German Associations

Excursus: Police Law

1. Anti-Jewish Measures within the Purview of Traditional Police Law

2. Imposition of the Police Statutes on Non-German Workers in the Reich Territory

Conclusion

Section Two: The Implementation of Völkisch Inequality in the Annexed Eastern Territories

Introduction: Fundamentals of National Socialist Administrative Policy: The Exploitation and Expulsion of Non-Germans

I. Objectives and Outlines of the Implementation of National Socialist Policy

II. The New Type of Administration in the Annexed Eastern Territories: The Primacy of the Party and the Separation of the Regional Administration from the Reich Administration

III. Results

A. The Principal Features of the National Socialist Policy of Special Law: The Segregation of Germans and Non-Germans and the Greatest Possible Discrimination against Non-Germans

B. The Manifestations of Special Measures: Exceptional Regulations on the Basis of the General Law or Overt Special Legislation? (The Struggle over the Adoption of the Prussian Law of Police Administration)

C. Special Topics

I. The Social, Political, and Cultural Sector

1. The Transformation of State Pension Payments into Welfare Subsidies

2. The Prohibition of Political and Church Activities

3. Discrimination in the Education of Non-Germans

II. The Economic and Commercial Sector

III. Civil Service Law

IV. Professional and Labor Law

1. Professions Requiring State Licensing (Lawyers and Physicians)

2. Labor Law and Working Conditions

V. Citizenship Law for Poles and Other Non-Germans (the German Ethnic Classification List)

1. Point of Departure: Statelessness for All Non-German Inhabitants of the Annexed Eastern Territories

2. Decree on the German Ethnic Classification List and German Citizenship in the Annexed Eastern Territories, March 4, 1941

3. Questions of Interpretation regarding the Decree of March 4, 1941: The Concept of Being Capable of Germanization

VI. Marriage Law

VII. Freedom of Movement and Personal Liberty

VIII. Restrictions on Communication and Information Exchange among Non-Germans and the Confiscation of Cultural Goods

IX. Food Supply

Section Three: The Implementation of Völkisch Inequality in the General Government

Introduction: The Fundamentals of National Socialist Administrative Policy: The General Government as a Model for Future German Colonies

I. Immediate Aims: A Military Staging Area, a Labor Reservoir, and Economic Exploitation

II. Ultimate Aims: German Colonial Rule

III. Legal Status: Borderland (Nebenland) of the Reich or Part of Reich Territory?

IV. Principles of Administrative Policy and Their Results

V. Principles of Administrative Organization: The Principle of Unified Administration

VI. Actual Development: The Lack of Personnel and the Failure of the German Administration

A. Fundamentals: The Segregation of Germans and Non-Germans and the Discrimination against Non-Germans as Far as Necessary

I. Jews

II. Poles

B. The Nature of the System of Special Law: A Normative System instead of Secret Guidelines

C. Special Topics

I. The Cultural Sector

II. The Economic and Commercial Sector

1. Polish Assets

2. Jewish Assets

Excursus: Tax Law

III. Civil Service Law

IV. Professional and Labor Law

1. Professions Requiring State Licensing (Lawyers, Physicians, Etc.)

2. Labor Law

a. Polish and Jewish Personnel

b. Consequences of the Arbeitseinsatz (Labor Allocation) Policy

Excursus: Social Welfare Law

V. The Legal Status of Non-Germans

VI. Marriage Law

VII. Public Health

VIII. Freedom of Movement and Personal Liberty

1. Residential Restrictions and Ghettoization of the Jewish Population

2. Other Restrictions on Personal Freedom of Movement

IX. Restrictions on Communication and Information Exchange among Non-Germans

PART TWO: The Principle of Special Law against Non-Germans in the Field of Justice

Section One: The Implementation of Völkisch Inequality in the Altreich

A. Penal Law

I. The General Thrust of National Socialist Policy in Penal Law

1. Rejection of the Established Principles of Law

2. The Main Contours of the National Socialist Authoritarian Penal Law

II. Non-German Offenders

1. The Introduction of Standards of Special Law

2. Discrimination against Non-German Offenders by a Harsher Interpretation of the Regular Law

III. The Situation of Non-Germans in Procedural Law

1. The Tightening Up of the Technical Jurisdiction Regulations (Discriminatory Jurisdiction)

2. The Situation of Non-German Defendants and Witnesses in the Penal Process

3. Final Objective: Exclusion of Non-Germans from the Whole Penal Procedure and Judicial Criminal Prosecution (Thirteenth Decree to the Reich Citizenship law)

Excursus: The Rectification of Justice by the NSDAP, the SS, and the Police

1. The Influence of the Party

2. The Influence of Hitler, the SS, and the Police Command

a. The Ousting of the Judiciary from the Field of General Criminal Jurisdiction

b. The Judiciary’s Part in the Process of Its Displacement by the Police

aa. Institutionalized Cooperation: The Obligation to Provide Information and Channels of Information between the Judiciary and the Police and Party

bb. Reactions of the Judicial Administration to Police Intervention: Basic Acceptance and Specific Criticism

cc. Flight Forward as Response: Tightening Up Sentencing Practice

dd. The Justice System Comes under the Control of the Police Command in 1942: Systematization

3. Police Rectification Measures in the Prosecution of Non-Germans

a. Collaboration between the Reich Ministry of Justice and the Police: Non-Germans Are Handed Over to the Gestapo

b. Usurpation of Sentencing Powers in Specific Domains

aa. So-Called Political Crimes (Including Nacht und Nebel Cases and Racial and Sexual Offenses)

bb. Labor Law Offenses

c. General Usurpation of Jurisdiction

aa. Decree of the Reichsführer-SS and Chief of the German Police, January 19, 1942

bb. The Circular of June 30, 1943, by the Reich Security Main Office (RSHA)

4. Judicial Consequences of the Usurpation of the Prosecution of Non-Germans by the Police

B. Civil Law

I. Main Elements of the Transformation of Civil Law on an Ethnic Basis

II. The Principle of Völkisch Inequality in the Domain of Substantive Law

1. General Principles

2. The Main Areas of Discriminatory Practices

a. Family Law

b. Inheritance Law

c. Law of Tenancy

d. Labor Law

e. Commercial Law

III. Discriminatory Principles in Procedural Law

1. Discrimination against Jewish Judges and Lawyers

2. Discrimination against Jewish Parties (Legal Aid) and Witnesses: The Plan to Renounce from Legal Proceedings

3. Discrimination against Jewish Participants in the Estate Execution/Administration Process

Section Two: The Implementation of Völkisch Inequality in the Annexed Eastern Territories

Introduction: The Political Objectives in the Annexed Eastern Territories: Testing the Ethnic Struggle

A. Stages in the Implementation of Völkisch Inequality

I. The Principle of the Analogous Application of German Law (October 1939–May 1940)

II. From the Analogous Application of German Law to Special Law (Summer 1940–Fall 1941)

III. The Establishment of Overt Special Law for Non-Germans (after Fall 1941)

B. Penal Law as a Central Element of the Special Law against Non-Germans

I. Principles of Substantive Special Penal Law

1. Decrees of the Military Administration

2. Führer Decree on the Division and Administration of the Eastern Territories, October 8, 1939

3. Decree on the Implementation of German Penal Law in the Annexed Eastern Territories, June 6, 1940

4. The Special Penal Provisions for the Annexed Eastern Territories in the Decree on the Implementation of German Penal Law in the Annexed Eastern Territories, June 6, 1940

5. The Decree on the Administration of Penal Justice against Poles and Jews (Decree on Penal Law for Poles), December 4, 1941

a. Basic Principles of the Decree on Penal Law for Poles and Its Justification

b. Details of the Decree on Penal Law for Poles

c. Plans by the Ministry of Justice to Extend the Decree on Penal Law for Poles

II. The Status of Non-German Individuals in Procedural Law

1. Special Courts as an Instrument for Combating Non-German Crime

a. Jurisdiction

b. Proceedings

2. Procedural Discrimination against Poles and Jews under the Decree on Penal Law for Poles

III. The Elaboration of Special Law by the Courts: Overview of Sentencing Practice

Excursus: Encroachment upon the Jurisdiction of the Judiciary: Extension of Police Jurisdiction for Criminal Matters

1. Efforts by the Police to Create a Police Penal Law for Alien Peoples

2. Developments before the Coming into Force of the Decree on Penal Law for Poles: Arbitrary Acts and Police Court-Martial Jurisdiction

3. Developments Following the Coming into Force of the Decree on Penal Law for Poles

a. Continuation of Illegal Police Practices

b. Legalization of the Jurisdiction of the Police Courts-Martial

c. The Undermining of the Decree on Penal Law for Poles by Police Orders

C. Civil Law

I. Analogous Application of Civil Law

II. Disputes between the Judicial Administration and the Political Powers about the Implementation of Civil Law

III. Decree on the Implementation of Civil Law in the Annexed Eastern Territories, September 15, 1941 (Decree on the Civil Law in the East)

1. Substantive Law

a. The Principle of Political Reservation for the Application of German Law in the Annexed Eastern Territories (Sec. 4)

b. Areas of Application of Section 4

2. Procedural Law

a. Rejection of Polish Claims on the Basis of General Legal Principles

b. The Principle of Political Reservation toward Claims by Polish Nationals (Sec. 5)

c. The Principle of Political Reservation for the Recognition of Decisions by Polish Courts and for Their Enforcement

Section Three: The Implementation of Völkisch Inequality in the General Government

Introduction: Main Contours of the Legal Policy: Continuation of Domestic Law and Primacy of the German Supervisory Authority

A. The Function and Structure of the German Judiciary

I. Supervision of the Polish Judiciary

II. The Adoption of the Principles of Reich Law

1. Supervisory and Control Powers

2. Review of Unappealable Decisions

3. The Structure and Organization of the German Judiciary

B. Criminal Law as the Principal Tool of Discriminatory Law (Special Law) against Non-Germans

I. The Basis of the Substantive Penal Law

II. The Situation of Non-Germans under Procedural Law

1. The Special Courts as Instruments in the Struggle against Non-German Offenses

a. The Competence of Courts

b. Procedure

2. Jurisdiction and Procedure of the German Courts

III. The Elaboration of Discriminatory Law by the Courts: A Review of Sentencing Practice

Excursus: The Criminal Jurisdiction of the Police

1. Summary Police Jurisdiction Following the Decree on Combating Acts of Violence in the General Government, October 31, 1939

2. The Extension of Police Summary Jurisdiction

3. Cooperation and Conflict between the Judiciary and the Police in the Criminal Prosecution of Non-German Offenders

C. Civil Law

I. Discriminatory Elements in Substantive Law

II. Discriminatory Elements in Jurisdiction and in Procedural Law

III. Summary

Conclusion

Appendixes

Appendix 1: The Reich Structure (State and Party)

Appendix 2: The Wannsee Protocol of January 20, 1942 (English Version and Original German Version)

Appendix 3: Area and Population of the Eastern Regions and the General Government

Appendix 4: Poster Showing the Execution of Polish Defendants on June 4 and 9, 1942, in Pozna (Poland)

Appendix 5: The Command and Administrative Structure of Police Forces in the General Government

Appendix 6: Maps

German Administration of Europe, 1942

Greater Germany, 1944

Annexed Eastern Territories and General Government

Notes

Glossary of Traditional German Legal Terms and National Socialist Legal Terminology

Bibliography

Unpublished Sources

Sources Published before 1981

Additions to the Bibliography (1993)

Index

Illustrations

About the Author

Copyright

Preface to the English-Language Edition

The number of studies, conferences, and articles and the amount of research conducted in the United States and in other countries about the Holocaust is seemingly boundless. But this book is not a book about the Holocaust; it points the way to the Holocaust. It explains the history, legal status, and treatment of non-Germans (Fremdvölkische, or aliens), in the Third Reich from 1933 to 1945; it describes the judicial theories and the administrative systems and court decisions concerning the treatment of non-Germans in the spheres of civil law, penal law, police law, fiscal law, the social and cultural sectors, and the like. This treatment was based on the principle of special law (Sonderrecht), or on racial or ethnic inequality. This meant nothing other than the misuse—even the dissolution—of the general law by extralegal or contralegal means or by retreating into secret directives of the administration or into single police actions.

An important part of the book is dedicated to the legal treatment of non-Germans in Eastern Europe, especially in occupied Poland from 1939 to 1945. These territories were the field of experiment for all future racial programs of the National Socialist government. At the same time, the Nazis’ practices against Poles and Jews were an extreme extension of measures initiated in the territory of the Reich, which created a pernicious scale of discrimination from west to east.

My conclusion is that the National Socialist state practiced a logic system consisting of three elements: the Führer principle (the absolute power of the Führer); the monopoly status of the National Socialist German Workers’ Party (Nationalsozialistische Deutsche Arbeiterpartei [NSDAP]) and its ideological ruling of the entire state, including intellectual and social spheres; and the principle of "racial inequality for non-Germans," which we may also call the principle of special law.

This principle of special law is the essential characteristic of the National Socialist state: no other authoritarian or totalitarian regime was so extremely focused on racial ideas. In practice, it meant the classification of German citizens and citizens of the occupied territories into Aryans and non-Aryans, or Germans and non-Germans, the separation in legal life and, as a consequence, the deprivation of all human rights and social protection for the so-called non-Germans. It amounted to reducing non-Germans to being deprived of paid labor without any public means—a psychic death before the physical death.

Of special interest is the role of the intellectuals, that is to say, those who emerged at the acme in the realms of science, politics, culture, business, justice, the military, and civil administration after the intellectual elite, especially those of Jewish extraction, had been dismissed or forced into exile, or both. These individuals acquired racist ideas from the Kaiserreich and in the powerful right-wing associations and parties of the Weimar Republic; they spread authoritarian or National Socialist ideas to their students and colleagues and in their own minds began to eliminate the aliens before the discriminatory measures started in practice. Their fascination with the Führer principle, their devotion and eagerness to serve the dictator without any moral or legal reservations, lay the groundwork for all of the pernicious legislation and administrative measures. This was facilitated by the fact that this racial thinking was given absolute priority by the National Socialist leadership and was encouraged in almost every official statement.

Why is the book of interest to an English-speaking audience?

In recent years countless publications and discussions concerning the Holocaust have inundated the media and dominated the discussions, promoted especially by the publication of Daniel J. Goldhagen’s Hitler’s Willing Executioners in 1997. The pros and cons concerning the role of anti-Semitism will certainly play an important part in future discussions.

This book puts these issues on a broader plain, one that transcends anti-Semitism and even racial thinking. It shows that at the core of National Socialist theories and legal practices was the elimination of the person as an individual—that is, the reduction of the person to a thing, from he or she to it, a fact clearly shown in the National Socialist legal language. From this basis everything was possible, even physical extermination, because human rights are not applicable to things. In this sense, not only Jews or other so-called non-Aryans, but all persons disliked by the regime for whatever reasons, represented potential victims. Thus, this book holds one of the most important keys to understanding the Holocaust. The numerous studies on law and justice in the Third Reich published in Germany after the appearance of this book do not change these theses but rather confirm them.

This book, the preparation of which claimed twelve years, quotes or lists all materials available in West German and Polish archives at the time of the appearance of the first German edition. The annotation is abundant; I hope it is not confusing. In any case, it will give the reader an impression of the complicated and almost endless methods of racial and political discrimination carried out through law and police regulation. It also reflects the problems that administration and justice faced in establishing such a system within the framework of traditional law dealing with virtually every aspect of life. Thus the sinister atmosphere of those years of occupation (in Poland) shows through every source and through every report of the local or state authorities, of the police or Party offices, to the central offices of the Reich.

I am very much obliged to the University of Bern in Switzerland for accepting my book as a Habilitation after its prior submission in former West Berlin and also in (West) Germany. (A Habilitation is similar to a second Ph.D. dissertation and is a legal or de facto requirement for a university career.)

I am grateful to the Johns Hopkins University Press, especially to its executive editor, Henry Y. K. Tom, and to the United States Holocaust Memorial Museum, represented by Benton Arnovitz, head of its academic publications branch, for agreeing to publish the book for the English-speaking audience; I thank them for their patience with the numerous problems that often come with such a huge manuscript. Very helpful were the staff members of the United States Holocaust Memorial Museum, who completed the vetting of the manuscript and its preparation for transmittal to the publisher, especially Aleisa Fishman and Patricia Heberer. The late senior historian of the Museum, Sybil Milton, encouraged that institution’s sponsorship of this project, for which she is owed special thanks. Special compliments to Lois Crum, the copy editor engaged by the Johns Hopkins University Press, who shaped the text, where necessary, in a most skillful was for the English-speaking audience.

I am grateful, further, to my translators, Ned Humphrey in the United States and Peter Hill and Brian Levin, both in Great Britain, whose brilliant abilities enabled them to cope with such a difficult manuscript and with the linguistic usages of a totalitarian state. That terminology does not exist in normal legal diction, so they often needed to create new expressions. Part 1 was translated by Ned Humphrey (with the exception of pages 237–316 of the German edition), part 2 by Peter Hill and Brian Levin; Brian Levin also translated pages 237–316 of part 1. The footnotes were translated by Peter Hill, as well as the index of places (consolidated with the subject index) and the index of persons; he also laid the basis for the glossary, which is new to this work. The glossary is unique because it includes a detailed survey of the most common traditional German legal terms and of the legal terms in the National Socialist phraseology. It is offered as a special service to the reader, so that he or she may understand the peculiarities of a highly bureaucratized, inhumane, and even inhuman language.

Most of all I am grateful to my cousin Albrecht Majer, senior teacher of English and Latin at the Claus-von-Stauffenberg-Schule, Rodgau, Germany, to his family, and to his team, who supported the preparation of the English edition (which took ten years) in many ways. Albrecht was manager, driving force, flying messenger between Frankfurt, Washington, and Baltimore, calming down the author who often got nervous considering the bulk of technical difficulties involved in such a huge project; he and his staff were also invaluable in meeting the problems of coordinating the texts of three translators, before the manuscript was sent to the editors in the United States.

Further, I am very much obliged to my assistants and friends Ursula Seybold-Schryro of Karlsruhe and Bijan Djawid of Dresden, who helped with technical assistance, which equally was a very considerable contribution in the preparation of the manuscript.

Diemut Majer

Karlsruhe, 2003

Foreword to the Second German Edition (1993)

Diemut Majer’s book Fremdvölkische im Dritten Reich first appeared in 1981 in the Schriften des Bundesarchivs (Annals of the Federal Archives). It was widely acclaimed and received a large number of favorable reviews. Originally written as a law dissertation for the University of Bern, Switzerland, the text came into increasing demand in the wake of the upheavals in Central and Eastern Europe. The book had been out of print since 1991, and I decided on a new edition of it with an awareness of its ongoing practical value as a work of reference and documentation for courts of law, public prosecutors, social administration offices, and other welfare agencies.

The author has thoroughly revised the text and added a list of current literature. Not least, I am gratified that this book should once again be available to aid historical research of totalitarian systems in the communist field of influence. I have great respect for Diemut Majer’s book as an important basis for comparative studies of administration and jurisdiction in the development and establishment of totalitarian systems.

I also thank my colleague Dr. Trumpp for editorial work on the new edition.

Professor Dr. Friedrich P. Kahlenberg

President of the Federal Archives

Koblenz, July 1993

Preface to the Second German Edition (1993)

The favorable reception that this book received in 1981 was due not least to its having been published under the auspices of the Federal Archives in Koblenz and its elegant presentation by the Harald Boldt Publishing House in Boppard on the Rhine, assisted by a printing subsidy from the Scientific Support Fund of VG Wort. I express my grateful thanks once again to all those who have participated in this work, especially the former president of the Federal Archives, Prof. Dr. Hans Booms, and his deputy, Dr. Heinz Boberach, director of the Archives. The positive reception by the scholarly media in Germany and abroad that the book enjoyed on its publication reflected the need for a systematic overview of the legal doctrine and practice of the Nazi state, for none had existed hitherto. The contemporary literature had concentrated primarily on the explicitly criminal aspects of the Nazi state: racial persecution, extermination policy, and so on, giving very little or no place to the legal theories and the legal and administrative practices that led up to these developments, nor to the everyday judicial events in the Nazi state. This was the first description of the constitutional and legal theory of the Nazi state based on systematic criteria, showing how they were applied in the domains of public law (state and administrative law), penal law, civil law in administrative practice, and the administration of justice. A further element that contributed to the ready acceptance of the book was its overview of the conditions in the occupied Polish territories (Annexed Eastern Territories and General Government) in each of the fields with which it dealt, illustrating how anti-Semitic legislative and administrative practice served as a model for the application of a racist policy against Eastern European populations in occupied territories.

The profound changes that have taken place in Germany since reunification in 1990 and since the collapse of the former Eastern bloc have set the stage for a new era of comparative law. Such studies should deal with totalitarian-authoritarian regimes and examine the function and procedures of state apparatus. It is the intention of the present new edition of the book, which has been out of print since 1991, to make a contribution in this direction. At the same time it will be valuable in helping to recognize in good time the dangers of authoritarian or totalitarian social systems, which the global threats represented by environmental disasters, national conflicts, and overpopulation make all too easy to forget. The historical dimension and the lessons of 1945 must be preserved for the future. The Koblenz Federal Archives and their president, Professor Dr. Friedrich P. Kahlenberg, deserve special thanks for having made this work available to the public once again.

Although a wealth of detailed documentation and general works have appeared since 1981 (see the addendum to the bibliography),** these do not include a comparable presentation of the overall system of the Nazi state. The main theses here remain uncontested and are almost fully substantiated by specific studies; indeed they should be emphasized even more strongly in many respects. The bibliography is up to date as of 1992 and includes all published works on the law, administration, and judicial practice of the Nazi state. In addition to the titles of monographs and general compilations, it cites individual articles in such compilations, for although they often are not recorded in library bibliographies, it is these in particular that document the scientific advances in the individual domains.

As seen in the bibliography, the main emphasis has been placed on the fields of constitutional law, administrative (police) law, penal law, civil law, and labor law. Related subjects such as juvenile law are dealt with in order to complete the different fields of law. Special fields such as military jurisdiction, which, although related to matters of justice, constitute an independent entity in themselves, have not been included.

Professor Dr. Diemut Majer

Karlsruhe, January 1993

Foreword to the First German Edition (1981)

Since its establishment in 1952, the German Federal Archives has assisted in atoning for National Socialist injustices and, where possible, has helped to make amends. It has done this by providing archival material and other information to courts, state’s attorneys, and authorities charged with paying reparations. With the present study by a jurist, it would now like to contribute to the scholarly examination of this system of injustice, its methods, laws, and institutions.

The transformation of National Socialist racial ideology into practical politics, administration, and law has, to be sure, received abundant attention in the realms of journalism, judicial rulings, and contemporary history; yet until now there has been no work taking into account all aspects in a systematic and critical fashion and based on a broad array of sources. The discrimination against the so-called non-Germans (Fremdvölkische) in the Third Reich, up to and including their physical annihilation, took place, the author demonstrates, not by means of formal abrogation and substitution of the existing legal and administrative order or by arbitrary and haphazard introduction of a new set of special laws. Rather, it proceeded above all on the basis of a massive and thoroughgoing reinterpretation of traditional norms and their ensuing employment under the banner of ideological irrationality. National Socialist theory and practice was in its very approach fundamentally different from the laws concerning minorities and foreigners found in democratic systems of government. The present work documents in detail the self-contradictory and highly complex development of this system, using as its models the two groups most grievously afflicted by all forms of discriminatory treatment, Jews and Poles.

In addition to the documents available in the Federal Archives and in the Institute for Contemporary History—documents that have hitherto principally defined the discussion of these topics, Dr. Majer was able for the first time to draw upon the documentation gathered by the Central Office of the Administration of Justice of the Länder, located in Ludwigsburg. But most important were the relevant records and documents of the Polish Main Commission for the Investigation of Nazi Crimes, in Warsaw, and its district offices in Kraków and Posen, as well as the records and documents of the Institute for Western Studies, in Posen, and, last but not least, the records of German provenance in the State Archive in Posen. It is a testimony to the good and trusting relations between the German and the Polish archives that here for the first time sources from both Germany and Poland were made available for evaluation in this manner. The records of each have for years been open to researchers from both nations, and microfilms of archival material have been exchanged for some time now, to their mutual benefit.

Only the careful exposition and interpretation of a large number of sources such as we find in this work can refute the assertion, made repeatedly in the recent past, that many research findings in contemporary German history are the results of politically tendentious investigations lacking in methodological rigor and therefore unreliable.

Professor Dr. Hans Booms

President of the German Federal Archives

Koblenz, August 1980

Preface to the First German Edition (1981)

The present study attempts to contribute to the clarification of certain problems of significance to the position of law and administration under the National Socialist system of government. Reduced to a simple formula, it examines the question of how far the legal thought of the time, the structure of the traditional administration, and its bureaucratic elite fostered the development of power of, and lent stability to, the new political system.

The source material was generously made accessible to me by German and Polish institutions, in the form of files, archival material, and printed matter located in the Zentrale Stelle, Ludwigsburg; the Bundesarchiv, Koblenz; the Institut für Zeitgeschichte, Munich; the Instytut Zachodni, Posen; the Główna Komisja Badania Zbrodni Hitlerowskich w Polsce, Warsaw, in its Regional Commissions in Kraków and Posen; and the libraries of the Universities of Warsaw and Posen. By contrast, my application to inspect the material of the Reichs-ministerium des Innern in the Zentrales Staatsarchiv in Potsdam was denied by the authorities of the former German Democratic Republic (GDR). I have also evaluated previously published contemporary historical literature, the proclamations of the Reich authorities and Party offices in their respective official publications, and the relevant articles and judicial rulings in the standard law journals from 1933 to 1945. Finally, speeches and other statements by leading National Socialists have also been taken into account.

Two peculiarities also deserve mention. They concern the question of whether statements by leading National Socialists and published sources from the period between 1933 and 1945 are capable of providing an accurate picture of contemporary circumstances. This study shows that, contrary to what has occasionally been asserted,¹ these can by no means be viewed as empty and propagandistic clichés with no basis in reality; rather, they reveal, even where their demands are most radical, methods and modes of thought that were later put into practice with a logical consistency that could not initially have been surmised. A further objection concerns the question whether the published judicial rulings and scholarly statements can indeed reflect the juridical reality of the time, since the rules of press censorship prevented the publication of anything that might have been disagreeable to the regime. This may be countered by the relative frequency with which professional journals published opinions that were later subjected to harsh criticism by National Socialist authors. The same is true of the decisions discussed in the instructions to presiding judges (Richterbriefe) issued by the Reich Ministry of Justice; they were culled from all fields of law, so by considering them, a rather realistic picture of legal practice can indeed be pieced together. What is more, those decisions and scholarly statements that found the approval of the regime were themselves also part of judicial reality; indeed, under the totalitarian Führer state they must be given increased weight, since one must assume that anything that escaped censorship appeared on official orders or with official approval, or on orders or with the approval of the professional legal organizations of the National Socialist German Workers’ Party (NSDAP) and was—particularly as regards publications from the ranks of the ministerial bureaucracy—considered the officially prescribed policy and phraseology to which judicial decisions were expected to adhere. That the rulings and articles published in the literature are relatively representative, that they are both the reflection of and the model for the prevailing legal practice, is shown especially clearly by the comprehensive guidelines set forth for publications in the major professional journals Deutsches Recht, Deutsche Justiz, and Juristische Wochen-schrift.² Even if one has recourse chiefly to the official publications, therefore, it is still possible in this way to correct the frequently quite stereotyped image of judicial practice under National Socialism by means of numerous individual snapshots.³

The method followed by the present study had to be adapted to the peculiarities of the subject. It consisted, to reduce it to a simple formula, of considering and examining the accessible materials under the theoretical parameters introduced as premises at the outset. In view of the abundance of available sources, the materials have been classified according to special subjects. The emphasis is on the fields of internal administration and the judiciary.

Various formal aspects of the study remain to be underscored. The first pertains to language. Any work that concerns itself with totalitarian phenomena must confront the question of what terminology it ought to employ. If one utilizes exclusively today’s nomenclature (oriented toward constitutional standards), it is possible that such phenomena might as a result be inadequately illuminated. For this reason the other route was chosen, namely, to describe the National Socialist regime using its own language,⁴ which reveals a distinctive composite of different linguistic levels. To an extent, the years following 1933 saw a transition to the language of totalitarianism, one apparent most plainly in the terminology of racial policy;⁵ for the most part, however, the legal nomenclature of the time-honored administration was retained. As a result the National Socialist state employed a kind of hybrid language compounded of both totalitarian and constitutional elements.

A comment is in order about the characterization of those responsible for the various legal policy guidelines. Frequent mention is made of the will of the political leadership. This is to be understood, according to specific context, as the declarations of intent by the chiefs of the ministries as well as of the Party and police leadership, since it was they who set forth and developed the relevant directives. Hitler’s will, by contrast, is mentioned infrequently, since, as will be demonstrated, he had absolutely no interest in questions of law and administration and therefore expressed himself on such matters only rarely and then merely in passing.

In the course of dealing with such a complex set of questions, I had to disregard many historical and judicial topics of importance to an understanding of legal practice in the National Socialist state. However, to facilitate the reader’s orientation in less well-known sets of problems, the sections dealing with the Annexed Eastern Territories and the General Government are each prefaced by a discussion summarizing the problems of National Socialist (administrative) policy.

This study was concluded in 1975.⁶ I would like to take this opportunity to express my sincere thanks to all those who advanced it in word and deed. I owe particular thanks to the director of the Zentrale Stelle der Landesjustizverwaltungen in Ludwigsburg, Dr. A. Rückerl, and his colleagues; the director of the Institut für Zeitgeschichte in Munich, Prof. M. Broszat; and Mssrs. Dr. H. Boberach and Dr. K. Oldenhage of the Bundesarchiv in Koblenz. My researches in Poland were facilitated by the Instytut Zachodni, in Posen, more particularly by the late Dr. J. Rachocki, who allowed me to consult the files of administrative offices in the Annexed Eastern Territories. The director of the Główna Komisja Badania Zbrodni Hitlerowskich w Polsce, in Warsaw, Prof. Dr. Czesław Pilichowski, was kind enough to permit me access to pertinent materials from the files of the administration of the General Government.

Further, I would like to thank many individuals, who unfortunately cannot all be mentioned here, for their information, suggestions, and criticism. Particularly important in this regard were Federal Constitutional Judges Prof. Dr. W. Geiger and M. Hirsch, Mssrs. Prof. Dr. A. Kami ski, State Prosecutor Lehmann, Prof. Dr. Cz. Madajczyk, Prof. Dr. A. Rajkiewicz, Presiding Judge at the Court of Appeals Dr. Th. Rasehorn, and Dr. E. Serwa ski. Great thanks, moreover, are due to the Rector of the University of Posen, Mr. Prof. Dr. Cz. Łuczak, as well as Mssrs. Dr. St. Nawrocki, Prof. Dr. R. Mußgnug, Prof. R. Löwenthal, and Prof. Dr. G. Kotowski, all of whom advanced the work in numerous ways. For their long and unstinting labor I am quite indebted to my mother, Mrs. Maria Majer, as well as Mrs. E. Görlich and Mr. H. Freckmann.

Diemut Majer

Karlsruhe, July 1980

Abbreviations

Illustrations

Illustrations follow page 322.

Statistical survey of the Prussian Ministry of Justice

Criminal court justices with national emblem swastika pin

Reich Minister of Justice Gürtner

Reich Minister of the Interior Frick

Protocol from a court-martial hearing in Posen

Einsatzkommando 3/V guarding Jews in Płonsk

Sentencing by a court-martial

Płonsk, September 1939

Protocol from a court-martial hearing in Zichenau/Schröttersburg

Memorandum from the superior district court judge to the district magistrate, in Posen

Circular decree, government district Łód

Memorandum from Heydrich to Lammers

Draft of an unpromulgated Führer decree

Notation from the Reich Chancellery

Execution of three death sentences

Information sheet of a Gau press agency

Report on the shooting of a Jew by the police

Notation on the Germanization of Polish children

Dr. Franz Schlegelberger

The "Gau-kings" of the Reichsgaue

Fritz Sauckel

Erich Koch

H. H. Lammers and H. Stuckart

Execution of Polish citizens by German police

Maps are found in appendix 6.

German Administration of Europe, 1942 581

Greater Germany, 1944 581

Introduction

I. The Tense Relations between State Leadership and State Administration in the National Socialist System of Government

On August 1, 1941, in a nocturnal conversation at table in the Wolf’s Lair, Hitler said of the bureaucracy:

People are always asking me to say something in praise of the bureaucracy. I simply can’t do so. Certainly, we have a decent administration, incorruptible, scrupulously precise…. But it is overorganized … ; they don’t look to success, they don’t know how to acknowledge specific responsibility for specific functions; rather, everything is contingent. And then the eternal clinging to positions…. The Wehrmacht provides the highest distinction for one who—acting against orders—salvages a situation by means of his own insight and determination. In the administration, deviating from the regulations always costs you your head…. That is also why they lack the courage for great responsibility.¹

Later, Hitler expressed in even plainer terms his antipathy toward the administration, the judiciary that supported it,² and particularly the central ministerial bureaucracy. The judiciary, he said, should not be permitted to set too many rules, and the ministerial bureaucracy even fewer: It was necessarily seldom that the Berlin ministries happened to hit upon the right thing in deciding individual cases … the men … in a ministry … were lacking any broadmindedness … [their] life element is thus their petty bureaucrat’s egoism.³ For him, therefore, political leadership and the administration were not only to be kept separate; they were necessarily antagonists. The danger was when the administration simultaneously wanted to be the state leadership. That initiated a rivalry which had already caused the downfall of a whole series of formidable states.⁴

This addresses the tense relationship between state leadership and state administration, between politics and the Civil Service, one that is as old as states themselves. On the one hand, the administration is the instrument of the political leadership, having at its disposal the most effective means of carrying out the latter’s will. On the other hand, if the administration does not accept the aims of the political leadership, a discrepancy may arise between political intent and administrative practice. The control of the administration thus becomes an existential question for any political system, since it is the natural opponent of any change; if such control is insufficient, the relationship is reversed, in that the administration forces its will upon the leadership, becoming the dominant factor within the state. In the history of Russia or of other centralist states (France, Spain), the special position of the bureaucracy as a social class with its own ideology is particularly evident. The struggle between political impetus and obstinate countermechanisms almost always ends in favor of the administration. Ultimately, any political system must adapt itself to the pace and stubbornness of its bureaucracy.⁵

This tense relationship becomes most evident in states with extreme or revolutionary aims, since, unless they are willing to abandon those aims, they are dependent for their very existence upon the quickest possible realization of their objectives by the administration. One could cite the example of the Soviet Union and the states it dominated: its revolutionary aims were crippled, indeed even brought to a standstill, by a lumbering and overly centralized administration;⁶ however, developments there have not yet been concluded.⁷ Since 1990, after the collapse of the Soviet Union, one can see that Russia and its former republics are in a state of transition between totalitarian/authoritarian and democratic structures.

One of the best examples of the antagonism between political aims and the judicial-administrative branch is offered by the National Socialist state.⁸ On the basis of its development, we shall examine whether or not, and in what fashion, the bureaucracy put into practice the aims of the leadership.

II. Law and Administration as Partly Autonomous Powers in the National Socialist System of Government

1. Persistence and Continuity

Although National Socialism has been thoroughly analyzed, both as an overall phenomenon and as it relates to particular fields, there are still no comprehensive studies of the legal structure of the National Socialist regime or of the function of law and administration in the Third Reich. To be sure, the field of law and state administration has also been treated in the older literature, but merely as one among many that were suppressed or neutralized by National Socialist tyranny.¹ In recent years, now that well-founded conclusions are available regarding the National Socialist regime as a whole, and the significance of the administrative bureaucracy as an independent element within the Nazi system has gained an increasing measure of recognition, diverse studies on various aspects of the administration (Civil Service, local government, judiciary, police) and their positions within the Nazi state have begun to appear.² The major focus of these studies has been the power struggles between revolutionary forces (Party, police) and the traditional administration and judiciary, the resulting jurisdictional confusion, and the gradual overshadowing and corruption of the state organization by a multiplicity of extralegislative, state, and semistate offices derived solely from the power of the Führer.

In contrast, the evaluation of legal and administrative praxis from a systemimmanent point of view, that is, on the basis of the judicial-administrative system of norms, has only just begun.³ True, we have not a few investigations concerning law and administration in the Third Reich. Among them, however, one finds only a few dogmatic studies⁴ and a mere handful of isolated works that demonstrate the firm integration of the judiciary and its leading representatives in the National Socialist state.⁵ The majority take the form of descriptive collections of facts and reports on legal developments or the evolution of the legal professions, or of representations of an apologetic nature, a type that, up to the eighties, continued to appear.⁶ These studies are often notable for their failure to establish the systematic or structural aspects of their chosen subjects. They are strongly influenced by contemporary research; as a result, legal history appears as a virtually uninterrupted series of illegal interventions by National Socialist tyranny. The main focus of these studies, too, is the dominance of the new revolutionary powers over the legal and judicial sector, a dominance whose destructive influences, embodied in the new powers represented by Party, SS, and police, are seen as having corrupted the law and, despite numerous attempts to reverse direction, as having brought about the paralysis or the downfall of the traditional order.⁷

This, however, does not do justice to the actual circumstances. As much as the normality of everyday law seemed to recede before the exceptional phenomena of the Nazi regime, the administrative and legal systems still managed, by and large, to preserve their essential structures. One of the tasks of this study is thus to show the differing extent to which the various areas of administration and law were influenced and infiltrated by the extraordinary powers of totalitarianism. This infiltration met with particular difficulty in those branches of the administration that possessed a long and established tradition and that had developed a strong sense of cohesiveness. There the interference of the National Socialists was essentially limited only in kind, leaving the traditional organization and structure of the administrative apparatus largely undisturbed.⁸ In the postwar period, this continuity of the state administration as an institution has frequently been brought up in connection with the question of the decline of the professional Civil Service in the Third Reich.⁹ Above all, the ministerial bureaucracy of the Reich authorities in Berlin constituted a relatively closed circle, which from time immemorial had been accustomed to recruiting itself from among its own and was little influenced by the new regime. Not for nothing were so many complaints constantly directed by the Nazi leadership against the central administration in Berlin, about the members of which Hitler was in doubt as to whether they ever happened to hit upon the right thing.¹⁰

Faced with such opposition, the new political accountability desired by the National Socialist leadership, one that would blindly carry out its every whim, could not be developed to the degree intended. An administration run by active militant National Socialists such as that envisioned and (at least in outline) realized by the Party leadership was in fact a contradiction in terms, since it was at the same time to have operated nonbureaucratically, that is, without fixed norms and jurisdictional restrictions. It ultimately foundered because of the respective Party functionaries themselves, who generally lacked appropriate experience and whose own ineptitude was really what rendered them incapable of establishing a new, exclusively National Socialist administration.

Thus it is impossible to maintain the thesis, set forth in earlier studies, that the bureaucracy was totally dominated by political special powers or steeped in constant power struggle or antagonism. A further contribution to the stability of the administration was the paradoxical circumstance that, although theoretically the Führer state was ruled exclusively by the will of one man and everything, from top to bottom, was planned down to the smallest detail, the administration nevertheless enjoyed greater authority than even before. To this extent one must be somewhat wary of the frequently expressed premise that the state as a whole was shattered and enslaved by the National Socialist Führer principle. For the emphasis on the personality of the leader and on personal responsibility, in conjunction with the removal of any parliamentary or judicial checks, reflected the glory of the power of the Führer upon anyone occupying a position of authority. Moreover, the very fact that the Führer principle was tailored to fit only one leader, who could not possibly manage every agency himself, necessarily meant a certain enhancement of the powers of the bureaucratic administration. The latter’s importance was even further reinforced when the legislative responsibilities invested in the Reichstag (the German parliament) were de facto eliminated and the right to make regulations was granted also to the Reich government;¹¹ owing to the introduction of the Führer principle, the latter were now not actually the supreme heads of the administration … [but] their range of activity and thus also their responsibility … [were] greater than ever.¹² Thanks to this initial situation, striking force (Schlagkraft) and efficiency, the twin ideals of any authoritarian administration, became the supreme principle of all administrative action; for the individual citizen, this meant the de facto abolition of all civil liberties, since they merely interfered with the administrative process; and a bureaucracy whose supervision has been removed can hardly resist the temptation to expand its own discretionary freedom until it runs the risk of abusing its powers.¹³ Finally, the Nazi system increasingly replaced precise casuistic definitions of civil and criminal offenses with blanket clauses, and the state took upon itself ever more politically colored obligations, so that the scope of state activity grew in purely quantitative terms as well. All these factors meant that the administrative bureaucracy became invested with a discretionary latitude that was open to any and all politicization; the content and limitations of the politicization could be arbitrarily set by itself, that is, by the heads of the administration with the aid of their power to promulgate guidelines.¹⁴ How far this latitude went was ultimately in the hands of the apparatus, namely, the department heads.

Therefore, although in a formal sense the absolute Führer principle was firmly anchored in the laws governing the Civil Service (unconditional obedience on the part of the Civil Service) and the administration remained largely shut out from access to the man in power,¹⁵ in practice this only served to strengthen the administrative apparatus; indeed, even the traditional principles of administrative action could be maintained, although in theory these principles had been annulled by the exclusive validity of the Führer decree or the will of the Führer.

One further factor deserves mention: externally, the Nazi seizure of power altered but