Study of Nazi Courts Full of Grim Lessons for Today
Review: Hitler’s Justice: The Courts of the Third Reich
By Ingo Müller
Harvard University Press, January 1, 1991, $21.99
As autocrats near and far wage war on independent judiciaries, a study of courts and judges under the Third Reich provides us with some important learnings for our current world crisis. Hitler’s Justice: The Courts of the Third Reich, by German legal scholar Ingo Müller, was originally published in Germany in 1987, and an English version appeared in 1991. Despite the time that has elapsed since Müller’s book first appeared, it is as timely today as it was then.
Although the book’s subtitle says its topic is the period of Nazi power from 1933 to 1945, the author’s goals are more ambitious than that. Müller not only wants to consider the despicable role played by German courts and jurists during Nazi rule; his larger narrative captures the history of German courts from Bismarck to the late 20th century.
The compliant courts that did so much to endorse, rationalize and implement Nazi policies did not spring forth from Hitler’s brow the day he became Chancellor. Nor did their impacts on German and world history end in 1945, and Müller does an impeccable job of telling the backstory of the Nazi courts, as well as tracing the impact of the complicit jurists who were allowed to retain their positions and influence after the war. The parallels with current trends around the world are chilling and instructive.
In a move that the current American president would envy, one of Chancellor Otto von Bismark’s first acts when the German Empire was founded in 1871 was to purge the German judiciary of liberals. Long before Hitler took the office formerly held by Bismarck, the German courts had a decidedly conservative and democracy-skeptical tone, as evidenced by draconian sentences imposed on labour leaders, socialists and social democrats.
The rightward tilt of German courts, even under the Weimar Republic, was notable. It is interesting, on this point, to contrast the courts’ treatment of two significant upheavals during the tumultuous period after the end of WWI. After a military “white terror” murdered thousands of the supporters of the short-lived Bavarian Socialist Republic in 1919, German courts followed up, not with charges against the murderous troops, but with charges against leaders and supporters of the left-wing insurgency. One leader was sentenced to death and over 2,000 supporters were sentenced to jail. Over 4,400 years of jail time were served by the convicted militants.
In contrast, the leaders and supporters of the “Kapp putsch”, a right wing insurgency that Müller calls “the most serious instance of treason in the fourteen year existence of the Weimar Republic” were mainly given amnesty, and the one leader who was imprisoned was given the minimum penalty of “fortress arrest” (Festungshaft), a form of “honorable arrest” reserved, it seems, for right-wing terrorists and other friends of the court.
Hitler and his followers received the same judicial soft handling after the failure of 1923’s “Beer Hall Putsch.” The future dictator used his time under the white-collar comfort of “fortress arrest” to write his vile manifesto Mein Kampf, and the courts failed to deport him to his native Austria, as required by German law. The trial judge said that Hitler and his thugs had been “…guided in their actions by a purely patriotic spirit and the noblest of selfless intentions,” a line that would have been right at home in the Trump pardons for January 6 insurgents.
In another moment from the past that seems to eerily prefigure Trump and his attitude toward “rogue judges,” Hitler, allowed to deliver a two hour rant at the trial of some of his military supporters, issued an unequivocal threat, saying that when he came to power, “…then a new Supreme Court will be assembled , and before this court the penalty will be exacted for the crime of November 1918. Then you may be sure heads will roll in the sand.”
We should always doubt the promises of an autocrat, but take his threats very seriously indeed. No one should doubt the bad will behind Hitler’s threats, but he did not need to behead the judges to get compliance. Once eased into prominence in part by judicial collusion, Hitler went on to commit some of the most monstrous crimes known to history, and few judges stood up against him. Rather, the courts were complicit in enforcing racist laws and colluded in the genocidal project to a horrifying degree. The practice run at genocide committed against mental patients was enabled by lawyers and judges, as were the mass murders of Jews, Roma, queers and communists. Like the ordinary men Daniel Goldhagen dubbed “Hitler’s Willing Executioners” in his searing history of the same name, almost all the judges and lawyers left in place after Jews and social democrats were purged from the bench went along with genocide rather that risk resistance.
Müller cites only a few judges who resigned rather than collaborate. Most went along to get along, and helped unleash a particular kind of hell in what was seen as the most civilized part of the world. And many went on without accountability to careers of power and influence after the war, as Müller shows in his final chapters. All this raises the question of the roots of fascism, a topic more and more timely these days.
In a kind of inverse version of the great man theory of history, many observers have wanted to see Hitler as a diabolically charismatic first mover, the main driver of the rise of fascism in Germany and the Holocaust. While this is a comforting theory, absolving all of us who are not monsters like Hitler of any responsibility for the nightmares of history, it is not entirely persuasive. Clearly the rise of fascist regimes in Italy, Portugal and Eastern Europe suggests that larger social forces were in play, currents of history and economics that swept Europe toward the falls in the 20th century. In our time, when wanna be fascists rule more of the world, this is a compelling puzzle.
Glow in the dark monsters like Hitler and Mussolini fanned the flames, but the kind of compliant, anti-democratic judges described by Müller laid the fire and provided the kindling, as did the big money interests who supported the rise of Nazism because it promised to break unions and smash workers’ parties. A few of these “fascism enablers” recoiled from the consequences of their deal with the devil, but many remained Nazis as long as it was opportune, then smoothly transitioned to roles of power and influence in the new West Germany mandated by the victorious Western powers, a process that Müller shows in some detail.
This is an important book with lessons for us all. Already the lurch toward fascism embodied in the US by Trump has met more resistance than Hitler and his thugs faced in the 20s and 30s, and many American lawyers have spoken out on their commitment to the rule of law and not to Trump or any other monarch.
They are to be commended and emulated. We need to learn the lessons of history, as Santayana warned us, lest we be condemned to repeat it. The widespread No Kings demos held during the weekend I was writing this review show how many Americans agree. Progressives and workers around the world are joining them in the resistance. Let’s hope we win. The stakes are high.
Tom Sandborn lives and writes on unceded Indigenous territory in Vancouver. He is a widely published free lance writer who covered health policy and labour beats for the Tyee on line for a dozen years, and currently reviews BC books regularly for the Vancouver Sun. He has worked as a transit worker and truck driver, child care worker, laborer, hospital orderly, Gestalt therapist, fund raiser and organizer. He has been a social justice and environmental sanity activist all his adult life.
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