"Non-Germans" Under the Third Reich (4 page)

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