“The Katakombe Stood Upright”

…as did South Park

In 1933, when Hitler became Chancellor, Sebastian 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’.

But 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.

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.”

As, in 2019, did South Park.