When Law Yields to Absolute Power (rerun)

(I should have included this post in my Theme roundup on totalitarianism and the fully politicized society. It’s important enough, I think–especially in our current circumstances–to be worth putting up as a stand-alone rerun post.)

Almost five 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 enforcementeven 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 Carnivalan 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 noseand 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 casescases 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.