In 1933, less than a month after he was elected chancellor, Hitler used the pretext of a fire in the Reichstag building to suspend constitutional law in Germany, aggregating unlimited judicial authority in his government to himself. After the fire, he proclaimed: “We have to provide certain temporary measures to stem this tide of terrorism.” And who were the terrorists? Communists and Jews, of course. The communists were scapegoated for starting the fire. Accordingly several laws were quickly passed — one, to reform the Civil Service by ridding Jews from the judiciary and from the legal establishment. At first judges protested, but the head of the judicial conference after meeting with Hitler assured his fellow jurists that the measure was only temporary, “I’ve been assured by the Fuhrer that this will go away soon. These laws are necessary because we’re living in a time of terror.” Thus a rare confluence of events caused a highly sophisticated, highly motivated, legal and judicial system to become complicit with a totalitarian dictatorship bent on achieving racial purity and territorial conquest. Hitler was given enormous emergency powers, granting him license to do almost anything he wanted, in direct contravention of a democratic state. Ten thousand German lawyers and judges thereupon took an oath of personal loyalty to him, not to the constitution — the very antithesis of the Rule of Law.
The primary governing procedure of German law during the Third Reich was the so-called Fuehrer Principle, under which Hitler had absolute discretion to make any ruling whatsoever in the interests of the Reich. Subordinate fuehrers had wide discretion, limited only by what Der Fuehrer had commanded them to do. Over the next twelve years the Nazi Party continued its subversion of constitutional safeguards until German courts amounted to nothing more than tools for the implementation of National Socialism. Early in their subversion of the Rule of Law, Nazi officials established special courts to deal with anyone the party deemed an enemy of the Reich. In these courts there was no right to due process. Judges determined arbitrarily what evidence to consider. There was no right to cross examine witnesses, no burden of proof beyond a reasonable doubt or by preponderance of the evidence and no right of appeal. Once succeeding in concentrating all legal authority into his own hands, Hitler had what he needed to eliminate all perceived enemies of the Reich, Jews and political opponents in particular.
Before the Nazi era, Jewish lawyers and judges constituted a large percentage of Germany’s legal community, causing resentment among their Christian counterparts. With Hitler’s rise to power, however, Jews were forbidden to practice law. Eventually most of them would lose their lives, some by their own hand, as well as their professions. On April 7, 1933, a law was enacted forbidding attorneys of non-Aryan descent from representing Aryan clients. Any who dared to disregard the law, had their names published in the press, their practices boycotted and eventually, their audacity became a ground for divorce. Doctrines of so-called “criminal types” were implemented that allowed Hitler’s courts to condemn enemies of the State, not based on what they had done, but on the sole basis of who they were. Ethnicity and race, in short, became status crimes. In 1934 the People’s Court was established to try defendants accused of political offenses. Eventually the court came under the Presidency of Roland Friesler, a Nazi of such extreme sentiments that he shocked even his fellow Nazi judges. Carl Schmidt, Hitler’s legal theorist, described the Fuhrer as Germany’s “guardian of justice.” Erwin Bumke, who drafted Hitler’s emergency laws, and other senior officials of Hitler’s Courts empowered police to disband organizations, seize assets, make arrests and determine on their own initiative what constituted a threat to the State.
The Nuremberg Laws of 1935 would reflect Nazi preoccupation with racial purity. Since Jews were defined as racially impure, marriage between Jews and non-Jews defiled the Aryan race and, therefore, was forbidden. Resourceful judges found other applications for the Nuremberg Laws by arguing, for example, that because Jews were no longer considered full human beings, they did not qualify for legal rights. In effect Jews and other targeted minorities underwent civil death before millions of them met physical death in the camps. During Kristallnacht on November 10, 1938, thousands of Jewish men — nearly all the lawyers, former judges, prosecutors and physicians remaining in Germany would be arrested and dragged off to concentration camps. With the invasion of Poland and declaration of war in September, 1939, Nazi lawmakers moved into high gear as thousands of so-called enemies of the Reich were arrested and tried in Hitler’s Courts. By 1939, roughly 60 percent of all law school professors were Nazi appointees engaged in training a new generation of lawyers and lawmakers, young zealots raised and educated under Nazi rule. And if some of this new generation harbored misgivings about the justice system in Germany, hardly any ever dared question the Nazi distortion of the Rule of Law.
In 1934, Dr. Lothar Kreyssig, a judge on the court in Brandenberg, objected to Hitler’s euthanasia program and even attempted to prosecute Nazi officers for sending hospital patients to their death. Because he had been a respected citizen the courts encouraged him to retire early. But such leniency was extremely rare. Dr. Johan von Donyanyi, at 36, the youngest member of the German Supreme Court also dared to speak out against Nazi injustice, for which he was arrested and later executed. Sadly, the overwhelming majority of Germany’s legal community cooperated with the Nazi regime. Post war statistics estimate that by 1945 the number of death sentences handed down by Germany’s various courts had exceeded fifty thousand, more than 80 percent of which were carried out. Yet another blow to the Rule of Law would take place in September,1942, when the Reich Ministry of Justice empowered the SS to change any court decision it deemed overly lenient. Thousands of prisoners would be delivered to the SS at that time for summary execution. Moreover, more than half the participants at the Wannsee Conference in January, 1942, that promulgated the Final Solution would be lawyers. Reinhard Heydrich who hosted the Conference, one of the cruelest mass murderers in Nazi Germany, nicknamed the “Hangman,” commented that he was surprised that the lawyers and judges sitting around that table went along with other participants without raising any objection, whatsoever, but by then, clearly, there was no justice in Germany. It had been perverted beyond recognition.