Elements of the German Legal System
People are often tempted to assume that the German legal system is very much like the American and British systems. Similar-sounding terminology helps to disguise differences. In fact, one quickly sees when attending a German trial how different the systems are in many respects. To complicate the matter, it is easy to swing to the opposite error: to conclude that they differ on all points and, in particular, that a civil law system such as the German provides none of the safeguards for the accused that the Anglo-American system offers. The following brief description of the German system is designed to provide a bit of clarification. Although it is written in the present tense, it applies (except where otherwise indicated) not only to the legal framework in use today, but to the arrangements that prevailed under the Weimar and Nazi regimes as well.
The German legal system comprises three levels of regular courts. At the ground level, there are two courts. One is the Amtsgericht, here translated as "Petty Court." It functions as a trial court with a jurisdiction that is limited to the less serious cases, both civil and criminal. More important cases are tried in the first instance before a Landgericht, here translated as "Country Court." The Country Courts also operate in some cases as the courts to which appeals from the Petty Courts may be taken. From the Country Courts, appeals go to the Oberlandesgericht, or "Court of Appeals." Each of these courts is designated by the name of the town or city where it sits. For historical reasons, the Court of Appeals for Berlin is termed the Kammergericht (literally, "Chamber Court"). The court of final appeal was called the Reichsgericht, or "Supreme Court." It was renamed the Bundesgerichtshof, or "Federal Supreme Court," after World War II. At the same time, the function of deciding upon the compatibility of legislation with the new constitution was separately assigned to the Bundesverfassungsgericht, or "Federal Constitutional Court." Germany also operates specialized court systems for labour law, administrative law, tax law, and social security matters. During the Third Reich, there existed a so-called Peoples Court (Volkgerichtshof) and other special courts for the speedy and brutal disposition of political offenses.
These courts are constituted somewhat differently from their counterparts in the United States and Britain. The courts of first instance, as well as the Courts of Appeal, are staffed by several judges, so that important trials are presided over by a panel rather than by a single judge. American and British lawyers are familiar with the practice according to which appellate courts sit in panels. The German practice is different, in that a panel remains of the same composition for protracted periods rather than rotating from week to week. And the panels are characteristically divided into civil and criminal groupings. The panels produce written opinions, but these do not bear the authors names; and there are no dissents. There are official publications of the opinions of the German Supreme Court, divided into criminal and civil series. Some opinions of lower courts are unofficially published and commented upon in legal journals. While German lawyers reject the Anglo-American view of the binding effect of precedent, the opinions of the Supreme Court are regarded as very important guides to the law.
German courts have always functioned without a jury in the Anglo-American sense. Some German trials are held before professional judges only. Others are held before panels composed of regular judges and lay persons. The latter are not legally trained; however, unlike Anglo-American jurors, they are not chosen at random but are deliberately selected for their supposed judiciousness, and serve for long periods of time. Instead of receiving instructions on law from the judge and supposedly dealing only with questions of fact, the lay persons and judges deliberate together.
German judges, like their British and American counterparts, are trained at law schools alongside students headed for private practice or business or government work. But their later career path is different, branching off immediately after formal legal education. Thus, German judges are not chosen for the bench after experience in the private bar but work their way up through the judicial system, starting as assistants in the Petty Courts and working toward a post on the Supreme Court. Their career path is thus much like that of the lifetime civil servant. It is a matter of conjecture whether judges on the Anglo-American model would have resisted Nazi incursions any better than German jurists did. In several instances the newly created Federal Constitutional Court, composed of specially appointed noncareer judges, has been able to distance itself from the Nazi past of the judiciary more successfully than have the regular courts.
With respect to German lawyers, too, one must be alert to differences from Anglo-American patterns. Preparation for the profession begins with attendance at a university; law students come directly from high school (Gymnasium) to legal studies. Unless they are interested in pursuing an academic career, they generally do not acquire a doctorate but proceed through two examinations, which are set by the state authorities and not by the universities. An obligatory period of clerkship with courts, practicing lawyers, and government agencies completes the training. Some lawyers become "notaries"-a term that may evoke false comparisons in the American mind, since Americans know notaries only as routine wielders of rubber stamps, whereas their functions in Germany include many of those entrusted to office lawyers or solicitors in the United States and Britain. German lawyers are somewhat constrained in their representation of the accused in criminal cases by the greater investigatory and examining role assigned to the judiciary and prosecution. Still, in the Weimar period quite a few lawyers succeeded in establishing themselves as important political trial counsel.
The German trial is, as a consequence of these differences, quite different from an American or British proceeding. A German criminal trial does not begin with an indictment by a grand jury but grows out of the investigatory proceedings of the states attorney. Under the so-called legality principle, a German states attorney who receives convincing evidence that a crime has been committed is required to institute proceedings. "Prosecutorial discretion" is alien to German theory. Whereas a British or American trial; when conducted before a jury, must start at the beginning (since the jurors are as new to the case as the spectators), a German trial starts with the file. The trial is kept much more tightly under control by German judges, who do most of the examining of witnesses and call for documentary evidence. They are not the relatively passive umpires between contesting attorneys that one sees in courtrooms in the United States, and somewhat less often in Great Britain. Occasionally, a criminal case is tried before an appellate court as in the case of the Reichstag fire trial, which was tried before the Supreme Court itself.
To some degree, the German legal system under the Weimar Republic had elements of federalism; under the Federal Republic, it has even more. One should not assume, however, that German federalism has the same features as its Canadian and American counterparts. Under Weimar, the governments of the constituent states (Lander) had significant powers with respect to the appointment of judges, law professors, and other legal functionaries. They were headed by governors who presided over cabinets much like prime ministers. In Weimar Germany, Prussia was by far the largest and most important Land. Nazism abolished the autonomy of these units and divided Germany into regions presided over by Gauleiter chosen by the Fuhrer. The autonomy of the Lander was enhanced in the constitution of the Federal Republic. Prussia disappeared as an entity; that part which fell tot he Federal Republic was divided into several Lander. German criminal and civil statues apply across the entire nation, as do the rules of civil and criminal procedure.
The German system of laws is supposed to be organized in general, all-encompassing codes. The most significant of these are the Civil Code, the Commercial Code, the Criminal Code, the Civil Procedure Rules, and the Criminal Procedure Rules. All of these date back to the turn of the century or earlier. Efforts to draft a new Peoples Civil Code during the Nazi period proved to be abortive. The National Socialist statutes considered in this book were not, in general, integrated into the respective codes but were treated as separate pieces of legislation which the courts had to reconcile with the rules of the codes as best they could. It has been difficult under the Federal Republic, as well, to preserve even a semblance of code-based cohesion in the German legal system.
Controversies about German Legal History
As is the case with other parts of recent German history, there is considerable controversy about many aspects of the events this book recounts. The historical study of National Socialist law was first characterized by a stream of books written by those who had participated in that life and who sought to justify what they had done. There followed a variety of writings by the succeeding generation of German lawyers, whom older colleagues accused of being eager to drag down the generation of their fathers and to convict them of collusion in evil.
The controversies concern four basic issues, each of which this book takes a position on, though sometimes only inferentially and implicitly. The first is: What was the collective contribution of the German legal profession to the taking of power by the National Socialist regime and its retention of that power for twelve years? As the book makes clear, the author believes that contribution was substantial. There are those who challenge that assessment and who doubt that even a very different legal system or different profession would have made much difference. They would note that the legal community, unlike the medical profession, did not as an entity stand to gain much from National Socialism. To pursue the comparison, they might add that, unlike doctors, lawyers did not provide the basic driving racist ideas which constituted the core of Nazi thinking - that lawyers merely refuted various objections to Nazism without providing its underlying convictions.
The second question is the matter of individual lawyers responsibility for what happened. Obviously, this will vary from case to case. The book provides examples from both ends of the spectrum. One sees the blood-thirsty ranting of Roland Freisler, presiding officer of the Peoples Court, captured in a film so vile that the Nazis omitted presenting it to the public lest the reaction be one of revulsion. One sees the opportunism of Carl Schmitt as he betrays his Jewish friends and praises Hitlers murder of his Nazi partners and miscellaneous others, including Schmitts own former patron. And at the other end, one sees the defiant resignation of Professor Anschutz and a few other acts of courage. In between, one observes a parade of jurists who rather passively go along. In fact, there were quite a few lawyers and judges specializing in corporate and commercial matters who seldom if ever got their fingers dirty with the work described here. Readers will have to try to incorporate into their judgment on the behavior of X or Y as an individual some sense of the German environment of the 1920s and 1930s, so different from that of Britain and the United States in the 1990s. Nazism arrived at the end of a long period of upheaval: the military disaster of 1914-1918, the inflation of the early 1920s, the depression of 1930-1933, and constant political instability and street violence. All of these made Germans more susceptible to Hitlers promises. The United States, in contrast, has only McCarthyism with which to calibrate the hysteria and the fear that prevailed in Germany from 1933 to 1945; and McCarthyism involved no death sentences (other than those of the Rosenbergs) and only a fraction of the dismissals that took place in the Reich in the 1930s. Britain has been fortunate in having had no such major purge during its modern history.
The third complex of issues concerns the extent to which the postwar Federal Republic did justice to what had happened before, making good the losses of the persecuted as well as it could and punishing those malefactors who had sunk the lowest in carrying out Hitlers orders and wishes. The author presents a variety of cases in which the victim received little or nothing and in which the malefactors continued unscathed to retirement or natural death. It is hard to find a comparison to use a measure for what the Federal Republic did or failed to do. The German Democratic Republic (East Germany) did quite a lot more than the Federal Republic to punish and remove from office those who had committed crimes in the service of the Nazi state; however, it did very little for the victims of that state, in particular for the victims of Hitlers anti-Semitism. It could not match the wealthier western states liberality and did not try. Of course, neither of the two German republics was entirely a free actor, and the victorious occupying powers get a good deal of the credit or blame for what went on there. One can also look to some other cases in which new and more democratic regimes came to power in the wake of military dictatorships-Greece, Argentina, and Uruguay, for example. Or one can look at the post-1945 purges of collaborators in other European countries. In terms of punishing the oppressors and compensating the victims, few of these states have done an impressive job.
Then there is the question of continuity: Is the Federal Republic still much the same sort of legal edifice it was during the Third Reich? Observers from other countries tend to see the new Germany as a civilized state. It is a party to the European convention on Human Rights, submitting its system of justice to external scrutiny. It has abolished the death penalty. Its prisons are less brutal than many American and some British institutions. Its Federal Constitutional Court applies rather stringent tests to the products of the legislature. A foreigner who has visited Germany at regular intervals notices the gradual diminution of the authoritarian tone of civil servants police officers, railroad conductors, and so on in their dealings with the citizenry. On the negative side, one notes the imposition of rules barring Communists from government jobs and the restrictions on defense counsel introduced in the wake of the terrorist operations since 1970. These are, in a sense, reminiscent of actions undertaken by the Nazi regime. But they may also be taken as stemming from the perception that the Weimar Republic did not defend itself strongly enough against the antidemocratic forces that sought its downfall. It is from the same causes that Germany has enforced rules against neo-Nazi propaganda, against the denial of the "Holocaust," for example-rules that would not pass muster under the first Amendment in the United States.
On each of the above questions, the author sets forth a great deal of evidence in such a form that the reader can arrive at a personal judgment as to the answer.
British and American Involvement with German Law
Nazism came as a shock tot hose American lawyers, a small minority, who kept in touch with major developments abroad. Although American jurists were never as intimately involved with German law as they were with the British, they had respect for the traditional German legal system. In particular those Americans who thought that Anglo-American legal thinking was too pragmatic, disorganized, and antitheoretical looked to Germany for inspiration. References to such thinkers as Savigny and Jhering were sprinkled throughout the American literature. Karl Lewellyn studied in Berlin and derived inspiration for his later redrafting of American commercial laws from the German codes. This respect dissolved as Americans became aware of what the Nazis were doing to (and through) the German legal system. The image of what was going on in Germany was largely shaped by the writings of emigres, and there was little response from defenders of the new regime. British lawyers seem to have been less attracted than Americans by the orderliness of German legal theory. The most famous example of German influence on British legal writing is that of the medieval legal historian Otto von Gierke upon his counterpart Frederic Maitland.
Even while the war was in full swing, Britain and the United States began to formulate ideas about what was to be done after victory. Lawyers sensed a need to do something about the German legal system, which had gone drastically wrong somewhere. They recognized that while legal re-establishment of legal restraint was vitally necessary. Part of that reform entailed the removal of the Nazi personnel who had made Hitlers law. (The book shows how limited the results of that purge were.) An American court, following up on the Nuremberg case in chief, tried a number of Nazi judges and prosecutors and passed substantial penalties upon them. Another part entailed the reformation of the body of law itself. Military Government Law Number 1 set about this task. It declared a number of laws abrogated as Nazi products. It next declared that no German law should be applied if it "would cause injustice or inequality" by favoring a person because of Nazi party membership or discriminating against any person on account of race, nationality, religious belief, or opposition to Nazism. It went on to say that "interpretation or application of German law in accordance with National Socialist doctrine, however or whenever enunciated, is prohibited." Decisions of German courts or agencies interpreting law in a Nazi way were no longer to be used as references. And such laws enacted in the Hitler period as had not been voided were to be interpreted in accordance with "the plain meaning of the text and without regard to objectives or meanings ascribed in preambles or other pronouncements." Other provisions forbade resort to the "sound consciousness of the fold" or the infliction of cruel or unusual punishments. In this legislation, the Allies recognized the responsibility incurred by the German courts in hastening the Nazi legislative process by moving ahead of the output of the law and decree-making authorities.
But the ardor for de-Nazification did not last long. The reasons for this slackening are various. Part of it related to personnel changes. The people with the bitterest experience of Nazism and its consequences went home and were replaced by routine bureaucrats. There developed a sense of urgency about reviving the German economy and, through the Marshall Plan, integrating it with the other European economics. This seemed to imply no interference with the personnel and structure of the German state and business systems. The Berlin airlift, the suppression of all parties other than the Communist party in the German Democratic Republic, the putsch in Czechoslovakia, and other ominous acts beyond the Iron Curtain gave rise to a willingness to overlook the past in the interests of building up West Germany as a bulwark against Stalinism. Klaus Barbie was not the only beneficiary of this trend. The means used in the early de-Nazification efforts seemed abhorrent to the Allies as well as the Germans. The questionnaires used to ferret out those with Nazi pasts intruded deeply into individuals past private lives. Punishment for acts covered by at least apparent state authority seemed unfairly retroactive. There was something out of tune about the Allied military government law that forbade future cruel and unusual punishments - yet permitted the death penalty for inflicting them.
American and British theorists were stirred by the challenge of National Socialism to law. The history of Nazi courts became the focus of new battles between positivists and those who found the ultimate basis of justice somewhere else. A favour exchange between H.L.A. Hart of Oxford University and Lon Fuller of Harvard focused on a case in which a German woman was prosecuted after 1945 for having denounced her husband to the Nazis as a defeatist, in order to get him out of the way so that she could pursue a new love affair. Her action was consistent with wartime Nazi law. But was that really "law"? The question arose when one considered the source of the legislation. Does a law have to be compatible with basic moral conceptions in order to be truly law? Or is it enough that the body or person exercising control has said that is its or his will? The Anglo-American debate proceeded at a rather abstract level. On that plane, it was not necessary to delve into some of the issues of positivism that this book brings to the surface. Were the Nazi statutes really law despite the fact that they had been passed under the 1933 Enabling Act, which had been obtained by Hitler through the exclusion of Communist deputies from the Reichstag and the exertion of enormous pressures on the voters and the deputies? Was legislation invalid because it failed to respect the limitations inherent in the provisions of the Weimar constitution granting emergency powers? Was a mere informal indication of the Fuhrers wishes enough to create law as in the case of the euthanasia campaign? The Nazis had themselves paid a certain amount of attention to these questions; some writers had given the answer that Nazism was revolutionary and that it obtained its legitimacy through that very revolutionary act. It is a separate question to ask whether German judges can legitimately claim for themselves that they acted in a positivistic way, merely declaring the law that there was. This book provides much evidence for the proposition that many judges went beyond the bounds of what they had to do and strove to anticipate the underlying will of the Fuhrer.