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  • When Law Yields to Absolute Power

    Posted by David Foster on July 18th, 2013 (All posts by )

    Three years ago, I reviewed the important and well-written memoirs of Sebastian Haffner, who grew up in Germany between the wars. I think the state of affairs in America today makes it appropriate to re-post some excerpts from the review and from the book.

    In 1933, when Hitler became Chancellor, Haffner was working as a junior lawyer (refendar) in the Prussian High Court, the Kammergericht. He was comforted by the continuity of the legal process:

    The newspapers might report that the constitution was in ruins. Here every paragraph of the Civil Code was still valid and was mulled over and analyzed as carefully as ever…The Chancellor could daily utter the vilest abuse against the Jews; there was nonetheless still a Jewish Kammergerichtsrat (high court judge) and member of our senate who continued to give his astute and careful judgments, and these judgments had the full weight of the law and could set the entire apparatus of the state in motion for their enforcement–even if the highest office-holder of that state daily called their author a ‘parasite’, a ‘subhuman’ or a ‘plague’.

    In spring of that year, Haffner attended Berlin’s Carnival–an event at which one would find a girlfriend or boyfriend for the night and exchange phone numbers in the morning…”By then you usually know whether it is the start of something that you would like to take further, or whether you have just earned yourself a hangover.” He had a hard time getting in the Carnival mood, however:

    All at once I had a strange, dizzy feeling. I felt as though I was inescapably imprisoned with all these young people in a giant ship that was rolling and pitching. We were dancing on its lowest, narrowest deck, while on the bridge it was being decided to flood that deck and drown every last one of us.

    …..

    Though it was not really relevant to current events, my father’s immense experience of the period from 1870 to 1933 was deployed to calm me down and sober me up. He treated my heated emotions with gentle irony…It took me quite a while to realize that my youthful excitability was right and my father’s wealth of experience was wrong; that there are things that cannot be dealt with by calm skepticism.

     

    On March 31st, the Nazis came to the Kammergericht. Haffner was in the library, reading some document on which he had to give an opinion. There was a clatter of footsteps in the corridor, shouts, and doors banging. Brown uniforms surged in, and the leader announced that all “non-Aryans” must leave immediately. One brown shirt approached Haffner and asked “Are you Aryan?”

    Before I had a chance to think, I had said, ‘Yes.’ He took a close look at my nose–and retired. The blood shot to my face. A moment too late I felt the shame, the defeat….I had failed my very first test.

    As I left the Kammergericht it stood there, grey, cool and calm as ever, set back from the street in its distinguished setting. There was nothing to show that, as an institution, it had just collapsed.

    Haffner tells us that even during Germany’s previous eras of autocracy, there had been at least some tradition of judicial independence, represented by the Kammergericht. He relates the story of Frederick the Great and the miller of Potsdam: The king wanted a windmill removed because it interfered with the view from his palace, and offered to buy it. The miller refused, and the king threatened to dispossess him. Challenging this royal version of eminent domain, the miller said, “Just so, your majesty, but there’s still the Kammergericht in Berlin.” (When Haffner wrote, the mill was still there) All that was over, now.

    It was strange to sit in the Kammergericht again, the same courtroom, the same seats, acting as if nothing had happened. The same ushers stood at the doors and ensured, as ever, that the dignity of the court was not disturbed. Even the judges were for the most part the same people. Of course, the Jewish judge was no longer there. He had not even been dismissed. He was an old gentleman and had served under the Kaiser, so he had been moved to an administrative position at some Amtsgericht (lower court). His position on the senate was taken by an open-faced, blond young Amtsgerichtsrat, with glowing cheeks, who did not seem to belong among the grave Kammergerichtsrats…It was whispered that in private the newcomer was something high up in the SS.

    The new judge didn’t seem to know much about law, but asserted his points in a “fresh, confident voice.”

    We Refendars, who had just passed our exams, exchanged looks while he expounded. At last the president of the senate remarked with perfect politeness, ‘Colleague, could it be that you have overlooked paragraph 816 of the Civil Code?’ At which the new high court judge looked embarrassed…leafed through his copy of the code and then admitted lightly, ‘Oh, yes. Well, then it’s just the other way around.’ Those were the triumphs of the older law.

    There were, however, other cases–cases in which the newcomer did not back down…stating that here the paragraph of the law must yield precedence; he would instruct his co-judges that the meaning was more important than the letter of the law…Then, with the gesture of a romantic stage hero, he would insist on some untenable decision. It was piteous to observe the faces of the older Kammergerichtsrats as this went on. They looked at their notes with an expression of indescribable dejection, while their fingers nervously twisted a paper-clip or a piece of blotting paper. They were used to failing candidates for the Assessor examination for spouting the kind of nonsense that was now being presented as the pinnacle of wisdom; but now this nonsense was backed by the full power of the state, by the threat of dismissal for lack of national reliability, loss of livelihood, the concentration camp…They begged for a little understanding for the Civil Code and tried to save what they could.

    For young lawyers who were willing to swim with the current, it was an excellent time:

    We Refendars rose daily in importance. The Association of National Socialist Lawyers wrote us all (me included) the most flattering letters: we were the generation who would build the new German justice..One could sense that the Refendars felt their increasing importance. They, not the Kammersgerichtrats, were the ones who now knowledgeably discussed court gossip in the breaks…The atmosphere reminded one of the glorious year 1923, when it had been suddenly been young people who set the tone, and one could become the director of a bank and possessor of a motor car from one day to the next…Yet it was not quite like 1923. The price of admission was somewhat higher. You had to choose your words with care and conceal your thoughts to avoid going to the concentration camp instead of the ministry of justice…The opinions that were expressed sounded a bit like exam responses learned by rote. Quite often the speaker broke off suddenly, and looked around to see if someone had perhaps misinterpreted his words.

    The Party did everything it could to encourage this ascendancy of the younger lawyers: there were even ‘training camps for young lawyers’, with mandatory attendance for Refendars who were about to take their Assessor examinations. These camps featured military and sporting exercises, along with intensive ideological indoctrination sessions. (Because of a bureaucratic screw-up, Haffner was able to avoid attendance.)

    A few people dared to speak up against the regime, but not many…and they were not always the people that one would have predicted. On the evening of the day when Jews were evicted from the Kammergericht, Haffner went with his girlfriend to a nightclub called the Katacombe. The master of ceremonies was a comic actor and satirical cabaret performer named Werner Fink:

    His act remained full of harmless amiability in a country where these qualities were on the liquidation list. This harmless amiability hid a kernel of real, indomitable courage. He dared to speak openly about the reality of the Nazis, and that in the middle of Germany. His patter contained references to concentration camps, the raids on people’s homes, the general fear and general lies. He spoke of these things with infinitely quiet mockery, melancholy, and sadness. Listening to him was extraordinarily comforting.

    In the morning, the Prussian Kammergericht, with its tradition of hundreds of years, had ignobly capitulated before the Nazis. In the same evening, a small troop of artistes, with no tradition to back them up, demonstrated the courage to speak forbidden thoughts. “The Kammergericht had fallen but the Katakombe stood upright.”

     

    I highly recommend Haffner’s book, titled Defying Hitler. My full review is here.

     

    16 Responses to “When Law Yields to Absolute Power”

    1. Death 6 Says:

      Good reminder David. Only the genius of our founding principles as embodied in the Constitution and several decades of strictly adhering precedents has served to slow our descent compared to what occurred in Germany in only a few years. The example of the frog in a gradually heated pan of water certainly comes to mind. Not all are frogs, some see the growing flame, they pay attention and have some historical perspective longer than the last couple of election cycles. Are those numbers growing or shirking? Can anything reverse the decline? By what means? I believe I may not like the answers to those questions. Yet, I remain committed to the effort no matter the personal or corporate outcome.

      Mike

    2. Jonathan Says:

      Not just our Constitution but also our English-derived culture work against a German-style descent into tyranny in this country. That’s part of the America 3.0 thesis and I hope it’s right.

    3. David Foster Says:

      Trends in England itself these days don’t seem to provide too much evidence for the antibiotic effects of English culture.

    4. Michael Kennedy Says:

      The Greeks were more fortunate than the Jews in that the Arabs, and later the Ottomans, could not run the empire without them. The Muslim world in its glory days was run by Greeks, many of whom converted to Islam. The Jews did not have that option under Hitler, even if they had been willing. Both ethnic groups were too successful and efficient for their own good but one survived under Islam for hundreds of years. Now, of course, we see how well the Muslims have done running their own affairs after the Greeks were finally expelled in 1920.

      Germany in the 1930s thought it didn’t need the Jews and had a short period to learn otherwise. Ironically, Germany had a fine history of science and even philosophy in the 19th century. The Arabs and the Turks had never been anything but soldiers.

      Our own descent is more scientific and subtle. Nothing crude like Nazis. Just Holder sending a team to Florida to stir race hatred to gin up the black voters for 2012. Janet Napolitano will bring “man caused disasters” to the University of California. Fannie and Freddie are stealing billions from tax payers. Ethanol from corn is causing food riots in poor countries. Everything is proceeding according to plan, at least if there really is a plan.

      The Asiana Airline event is a metaphor for what is happening. If you think autopilot can land the plane, maybe you should know more about what you are doing.

    5. Jonathan Says:

      That’s why I’m hoping.

    6. snopercod Says:

      “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.” –Judge Learned Hand

    7. Jonathan Says:

      My response above was to David’s 10:38 comment.

    8. Peter Says:

      I read Haffner’s book last summer based on David’s review (thank you BTW) and agree that it is an excellent account.

      One of the aspects that I found interesting was the effect of the Weimar inflation/boom was seen as a repudiation of the wisdom of the previous generation and culture. He described how 20 year olds would make a small fortune in the market one day while the accumulated wealth of a generation’s work was wiped clean within the same timeframe.

      That allowed ideologues to discredit the past and prepare the ground for the adoption of a new society created by the new state for the new man.

    9. David Foster Says:

      Peter…yes, the psychological impact of the great inflation seems to have been huge. In Hans Fallada’s novel Little Man, What Now?…set after the mad inflation but during the great unemployment…the young couple has a landlady who simply cannot comprehend what has happened to her savings:

      Young people, before the war, we had a comfortable fifty thousand marks. And now that money’s all gone. How can it all be gone?…I sit here reckoning it up. I’ve written it all down. I sit here, reckoning. Here it says: a pound of butter, three thousand marks…can a pound of butter cost three thousand marks?…I now know that my money’s been stolen. Someone who rented here stole it…he falsified my housekeeping book so I wouldn’t notice. He turned three into three thousand without me realizing…how can fifty thousand have all gone?

      Regarding the effect of inflation on the relationship among generations, I think Haffner makes a persuasive argument. I’d note that this was an additional blow to generational continuity, in addition to the distrust that many felt after their experiences in the Great War. This is well expressed by Remarque’s character Ludwig Breyer, interrupting the school principal who is giving a patriotic “welcome home” speed to the returning soldiers:

      Ludwig pauses a moment, gazing vacantly ahead. He passes a hand over his forehead and continues. “We have not come to ask a reckoning–that would be foolish; nobody knew then what was coming.–But we do require that you shall not again try to prescribe what we shall think of these things. We went out full of enthusiasm, the name of the ‘Fatherland’ on our lips–and we have returned in silence,. but with the thing, the Fatherland, in our hearts. And now we ask you to be silent too. Have done with fine phrases. They are not fitting. Nor are they fitting to our dead comrades. We saw them die. And the memory of it is still too near that we can abide to hear them talked of as you are doing. They died for more than that.”

      Breyer’s words: “We do require that you shall not again try to prescribe what we shall think of these things…Have done with fine phrases” capture well the break which the Great War caused in the relationship between generations, and even in the use of language, and not only in Germany but in all the European belligerents.

    10. slumlord Says:

      Not really sure about that David.

      Junger’s storm of steel was hugely popular in Germany and I get the impression that militarism was still quite entrenched in German culture. Pre-WW2 Germany seems to be divided amongst the martialists and the communists. Post war, it appears that the Left’s historical narrative seems to have taken a precedence in our common understanding of the pre-war years. For example, the Left like to paint the Weimar period as some sort of period of creativity and flowering of German culture, but it appears to me that the average German of the time did not think so. Grosz literally paints a picture of a morally corrupt and degenerate society. Part of the appeal of Hitler, for Germans,was that he was going to reverse the post war Weimar order.

      To me, the most powerful aspect of the this book was in the passage where he describes the capitulation of the Kammergericht to Nazi takeover. Haffner sees it for what it is: cowardice by the moral “best and brightest” in Germany.

      That was the Kammergericht in Berlin in April 1933. It was the same Kammergericht whose judges had stood up to Frederick the Great 150 years earlier and, faced with a cabinet decree, had preferred jail to changing a judgment they considered correct in the king’s favor. [Ed]In Prussia every schoolchild knows the story of the miller of Potsdam, which, whether it is true or not, gives an indication of the court’s reputation. The king wanted a windmill removed because it disturbed the view from his new palace of Sans Souci He offered to buy the mill. The miller refused, he wanted to keep his mill. The king threatened to dispossess the miller, whereupon the miller said, “Just so, Your Majesty, but there’s still the Kammergericht in Berlin.” To this day the mill can be seen next to the palace.

      In 1933 the Kamrnergericht toed the line. No Frederick the Great was needed, not even Hitler himself had to intervene. All that was required was a few Amtsgerichtsrats [Ed: Nazi court appointees]with a deficient knowledge of the law.

      I wrote a post on it at my blog. It’s here if you’re interested. http://socialpathology.blogspot.com.au/2012/05/spiritual-battleground.html

      I’m not sure if it was you recommended it to me but a far more powerful book, in my opinion, is Reck-Malleczewen’s, Diary of Man in Despair. Unlike Haffner, who has a bit of a Lefty bent in my opinion, Reck is the voice of the Old Europe judging the New. I honestly can’t recommend it enough. He is like a real life version of Winston in Germany’s 1984.

      Here is the New York Review of Books take on it:

      http://www.nybooks.com/books/imprints/classics/diary-of-a-man-in-despair/

      Reck is a far more penetrating analyst that Haffner and see’s the rise of Hitler as product of Germany’s spiritual corruption. The haunting shadow lurking in Reck Book’s is Ortega y Gasset’s Mass-man whom Reck sees as the enabler of Hitlers rise to power. It’s the same moral corruption around me.

    11. David Foster Says:

      Thanks. I recommend the “spiritual battleground” post by Slumlord (aka The Social Pathologist) to everyone.

      Re Junger and the continuing militarism…note that Naziism was very much a youth movement, as I think were earlier post-WWI militaristic parties, so this is not at all contradictory to the thesis of a split between generations.

    12. David Foster Says:

      See for example the Nazi song “The Rotten Bones are Trembling,” which includes the lines:

      And the elders may chide,
      So just let them scream and cry

    13. David Foster Says:

      Also very important in Haffner’s story is the politicization of all aspects of life. He notes that shortly after the end of WWI, things were so politically divisive that even sport clubs tended to be politically aligned. But as the environment (temporarily, as we now know) stabilized, politics became less dominant:

      Many of us sought new interests: stamp-collecting, for example, piano-playing, or the theatre. Only a few remained true to politics, and it struck me for the first time that, strangely enough, those were the more stupid, coarse and unpleasant among my schoolfellows.

      Later, after the Great Inflation had come and finally been suppressed by the introduction of sane economic policies, there was another period of stability:

      The last ten years were forgotten like a bad dream. The Day of Judgment was remote again, and there was no demand for saviors or revolutionaries…There was an ample measure of freedom, peace, and order, everywhere the most well-meaning liberal-mindedness, good wages, good food and a little political boredom. everyone was cordially invited to concentrate on their personal lives, to arrange their affairs according to their own taste and to find their own paths to happiness.

      But…and I think this is a particuarly important point…a return to private life was not to everyone’s taste:

      A generation of young Germans had become accustomed to having the entire content of their lives delivered gratis, so to speak, by the public sphere, all the raw material for their deeper emotions…Now that these deliveries suddently ceased, people were left helpless, impoverished, robbed, and disappointed. They had never learned how to live from within themselves, how to make an ordinary private life great, beautiful and worth while, how to enjoy it and make it interesting. So they regarded the end of political tension and the return of private liberty not as a gift, but as a deprivation. They were bored, their minds strayed to silly thoughts, and they began to sulk.

      In America today, I’m afraid we have quite a few people who expect to have “all the raw material for their deeper emotions” driven by their political activism and its extensions in a somewhat similar way.

    14. Glen Says:

      On Friday evening I read the report regarding the MI judge who denied the Detroit Bankruptsy filing. I immediately thought about this article. The legal logic, if that is what you would call it, where the filing disrespected the president, appears to verify the near absolute corruption of the MI judiciary.

    15. David Foster Says:

      Glen…yes, I thought it was very odd. “Disrespecting the president” would not seem to be a relevant factor in any court case whatsoever, except perhaps in a military court-martial where respect to superiors in the chain of command would be a valid requirement.

      Obama’s supporters seem to believe that we are ALL in Obama’s chain of command.

    16. IGotBupkis, "'Faeces Evenio', Mr. Holder?" Says:

      Inter Armes, Silent Leges….