Abstract
In Nazi Law: From Nuremberg to Nuremberg, professor – and renowned filmmaker – John Michalczyk has collected eighteen short essays. He has bracketed them with his own introduction and conclusion, and supplied an index, a general bibliography, and a helpful glossary of legal terms. He has also penned a framing introduction to each of the book’s five parts. Like any collection of a dozen and a half scholars’ writings, the quality and “fit” of each particular essay varies, but overall this is a comprehensive, erudite work which touches on various legal themes arising out of the Holocaust.
The book’s subtitle, “From Nuremberg to Nuremberg,” suggests a trajectory; a journey. Chronologically, the legal history of Nazi Germany can be grouped into four phases. There is the pre-1933 legal history of the Weimar Republic, examined as the fertile political ground it seems to have been for the growth of Hitler’s government. There is the pre-war period (1933–1939) peppered with legislative attempts to isolate, silence, and execute marginalized populations, starting with the killing of individuals with disabilities. During this period, the Nuremberg laws were enacted by a compliant Reichstag, then applied by a tractable judiciary. Next come the war years (1939–1945) and industrialized killing on an unprecedented scale. Fourth, there are the post-war responses to atrocities including restitution claims and the famous Nuremberg trials. Thus, Nazi law can be said to begin with the Nuremberg laws and end with the Nuremberg trials.
A chronological segmentation, however, is certainly not the only means of approaching the legal history of Nazi Germany. Michalczyk has parceled matters thusly: Part 1 is titled “A Judicial System Without Jews and Without Justice.” Two essays in this part explicate legal theorists such as Carl Schmitt who paved the way for Nazi-styled law. Other essays explain the Nuremberg laws that defined and segregated Jews and others. Part 2 is “Hippocrates Abandoned by Nazi Doctors.” Its essays explore medical experimentation and torture in the Third Reich and beyond, including implications for medical ethics today. One chapter narrates Nazi and postwar treatment of homosexuals. Part 3 considers “Economic Policies and the Stripping of the Jewish Community.” Here, the plunder and theft of property and art are recounted, as are post-war restitution efforts. Part 4 unpacks “A God Subverted by Nazi Policy.” One chapter in this part reports on Catholicism under National Socialism. A second outlines Nazi persecution of German Protestants. A third elucidates the persecution and resistance of Jehovah’s Witnesses. The final section, Part 5, is dubbed “To the Victor Belongs Justice: At Nuremberg and Beyond.” It represents a partial resolution to the staggering genocide which preceded it, as the Allies and Germany, too, undertook efforts to prosecute those who designed and implemented the Holocaust.
Two essays in particular are noteworthy and also representative: The first is “Our Enemies Have No Rights: Carl Schmitt and the Two-Tiered System of Justice” by Paul Bookbinder. In it, a basic survey of Schmitt’s biography and legal theories is elucidated. Carl Schmitt (1888–1985) was closely associated with the Nazi party; he has been called “the smartest person to support the National Socialists” (22). Although antisemitism is often associated with ignorance, a prejudice that can be corrected with education and experience, Schmitt’s antisemitism became more vitriolic as his political theories were refined. And even after the war, he retained his views. Schmitt had many contacts with conservatives and is frequently labeled a conservative jurist. But as Bookbinder points out, an inspection of Schmitt’s ideas, even as expressed in his earliest works, “reveals that he was motivated not to conserve but to transform” (25). Schmitt was a radical anti-parliamentarian.
Bookbinder outlines these radical political convictions which would undergird the Nazi government. A key component of Schmitt’s theories is a redefinition of guilt. For Schmitt, criminal guilt was neither psychological nor (despite Schmitt’s deep Catholic convictions) religious, but political. Guilt attached to conduct which was inconsistent with the goals of the state and the collective will. There was no right or wrong, only varying gradations of damage to the collective occasioned by an individual’s actions. From this premise emerged a two-tiered concept of law. A defendant who committed acts of violence against persons or property was entitled to procedural protections such as the right to counsel and the right to be charged with a specific crime. But a defendant whose act threatened the state or community was not. Those who threatened homogeneity by their very existence – especially the Jews – were guilty of “the crime of being” (27).
The second essay of representative note is “German Courts in the Maelstrom of Criminal Guilt: The Career of Functional Liability in Nazi Death Camp Trials, 1963–2016” by Michael Bryant. This chapter is constructed around a fundamental and recurring challenge to the prosecution of Nazi war criminals: the lack of direct evidence. Direct evidence might include eyewitness testimony or documents showing a defendant’s involvement with murder. But proof of a specific criminal act committed by a defendant is often unavailable. Although high-ranking officials have left paper trails of varying probity, documentary evidence for lower-ranking actors from the camps, the gas vans, or the killing pits is typically missing. And the eyewitnesses cannot speak because they were murdered and any forensic evidence was burned and bulldozed. As a result, only circumstantial evidence (e.g. the defendant occupied a position of authority in a camp during a time in which his subordinates were carrying out murder) is available. The challenge to the persecution of Nazi war criminals is due to the fact that since the 17th century, “Enlightenment reformers insisted that an accused could be punished only after proof that he personally and intentionally committed a criminal act” (222). This requirement of a provable criminal act (konkreter Einzeltatnachweis in German) rejects any collective responsibility for criminal conduct. Consequently, when only a paucity of evidence has been preserved, an acquittal will predictably result.
Bryant renders a new legal doctrine that recently emerged in Germany that was specifically adapted to this problem. The doctrine materialized in the criminal trial of John Demjanjuk. In 2011, in the trial of the former Sobibor guard, a Munich court convicted the defendant for aiding and abetting murder without any direct evidence that he had personally committed a homicidal act. The court adopted the prosecutor’s argument that the defendant’s presence in the death camp, the sole purpose of which was extermination of human beings, was evidence of guilt. In other words, “unspecified participation as a guard in a death camp was ipso facto proof of complicity to murder” (223). This functional participation theory has echoes of criminal conspiracy, but is not its twin. The theory was specifically adapted to the singular particulars of the Holocaust, Bryant claims, although its trend can also be discerned in international criminal legal standards.
This new legal theory which allowed conviction without direct evidence “flashed like a meteor over a Nazi trial in a modern German court” (231), Bryant concludes. Here, Bryant is unclear whether the innovation represents a new rule of evidence or a new definition of guilt. If it is a new definition of guilt, the two chapters encapsulated here nicely frame the progression of law, from Schmitt’s restyling of guilt as an underpinning to Nazi political science to contemporary German jurists’ reshaping of guilt as a means to convict Nazi criminals.
The strength of Nazi Law resides in its wide assortment of themes and perspectives. From the supporting strata of legal theory that provided foundations for genocide, through the ascendancy of persecution and the death camps, to post-war prosecutions of war criminals, the book traces the importance of law across the chronology of Hitler’s government. It joins a similar collection, The Law in Nazi Germany: Ideology, Opportunism, and the Perversion of Justice (2015), edited by Alan E. Steinweis and Robert D. Rachlin. While Nazi Law does not claim to unearth every aspect of the Holocaust, it is nevertheless disappointing that the Roma and Sinti are overlooked in the detailed discussions of various victim groups. Homosexuals receive study in one chapter; Jehovah’s Witnesses in another. The Jewish victims and resistance are depicted in depth. Several mentions of the Roma are included in the essays, but only in passing. The omission of the several hundred thousand Roma murdered by the Nazis and their Axis collaborators is disheartening. Still, Nazi Law represents a collection of excellent thumbnail-length chapters which deftly examine multiple legal facets of the Holocaust, its etiologies, and its aftermaths.