The Law Under the Swastika (16 page)

Koellreutter concurred with this conclusion. In numerous argumentative writings, replete with attacks against Forsthoff, Höhn, Maunz, C. Schmitt, Jerusalem, and J. Heckel, he tried to draw the picture of an authoritarian state in which the two principles that the administration adhered to laws and that courts provided legal protection were, admittedly, restricted but nevertheless preserved. During the final phase of National Socialism he realized ever more clearly that this was not the state he had called for in the 1930s and which he initially saw realized under National Socialism. In his later essays he pointed more and more frequently to other countries under authoritarian rule—such as Japan and Italy—in which the protection of individual rights had not vanished, and he warned of the danger of dehumanization and the fall of European culture.
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This view also underlies his rejection of the concept of community. His argument that one could not get “a legal grasp” on the term
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and that “certainty” came for now only from the concept of the legal person reflected—apart from theoretical concerns—his anxiety to preserve traditional ordering elements, which he saw endangered by a concept of community that was infinitely malleable.

Despite his early praise of Höhn for having refuted the legal person of the state,
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Huber too could not bring himself to give up the concept of the state. In his eyes, the change brought about by National Socialism was primarily the abolition of the gulf between state and society, a process that did not make the state disappear within the national community but actually strengthened it. As Huber saw it, the state made the natural nation into a “political” nation. In the process, nation and state became an “inseparable” entity, the state being the “higher communal order” or “lasting political form.” Beginning in 1939 he suggested the term
Reich
for the state and
state organization
for its
technical apparatus (administrative and military).
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Huber’s opposition to premature ideas about identity and the “indiscriminate generalization of certain political constitutional principles, above all the community principle and the Führer principle, and their abstract transfer to organizational forms of communal law,” could well be seen as a response to Höhn.
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Later, in 1941, Huber spelled it out more clearly: “The task confronting German political theory is not to polemicize against the state, but to absorb all elements of statehood into the concept of the Reich.”
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Huber now saw the notion of the Reich as the central concept in which the opposition between the concepts of community and state could be dialectically resolved.

As the totalitarian traits of National Socialism, beginning in 1938, asserted themselves increasingly over its authoritarian traits, the initially lively debate over the idea of community became less and less relevant. The so-called “war against the person of the state”
⁸⁸
was quietly abandoned. That explains how A. Köttgen in 1945, in response to the question whether the Reich as a legal person had still been the employer of the civil servants, could rightly note that the criticism of the central concept of the person of the state had exerted no significant influence on legislation.
⁸⁹
The West German Federal Constitutional Court (Bundesverfassungsgericht) did accept this argument in the controversy over whether civil servant status had continued after April 8, 1945. However, it dismissed it as irrelevant, precisely because it was concerned to show that the formally continuing relationship of the civil servant to the legal person of the state had been essentially changed, so that it was not possible to speak of continuity after this date. The series of “131 decisions” by the Federal Constitutional Court, and the emotional debate they triggered,
⁹⁰
illuminates once more in retrospect this distortion of traditional concepts, such as “the state as legal person” and “professional civil service.”

That the discussion over the concept of community largely died down after 1938
⁹¹
was hardly because the question of legal terminology was seen as having been resolved—on the contrary. But the quarrel over terms seemed increasingly meaningless in view of the massive inroads into the remnants of the
Rechtsstaat
by the Nazi party and the SS. Koellreutter, for example, spoke out against the admissibility of secret laws; against the leveling of the difference between constitutional law, laws, and decrees;
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and against the dualism of party law and state law.
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The fact that many scholars turned from constitutional law to less risky historical topics or issues of international law emphasizes how jurists had essentially realized that neither the category of community nor any other category was suitable for explaining, let alone influencing,
the phenomenon of the totalitarian state. As Hitler explained, “The health of the German nation is more important than the letter of the law.”
⁹⁴

V.
We can name several, mutually interconnected, reasons why the term
(national) community
posed difficulties within the traditional legal system. Probably the most evident reason was that the term could take on all kinds of meaning, a characteristic that the many attempts at defining it could not eliminate. The language of these attempts reveals that their purpose was not to grasp reality with the greatest possible precision, but to establish a metaphysical superstructure. Here, for example, is how Ritterbusch described the relationship between
Weltanschauung
and national community:

The totality of our being, which is taking shape in this movement and developing into the essential reality of our existence, is the holistic community of the race-specific
[artgebunden]
nation. The National Socialist movement is the becoming-of-the-nation
[Volkswerdung]
, and this becoming is nothing other than the fulfilling realization of the truth and reality of our selves. The lasting becoming-of-the-nation fulfills the law of our reality and truth, for only the whole is true and real, and only the nation is the wholeness and therefore the truth and reality of our selves.
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As long as the definitions were developed descriptively from the concept itself—for instance, through recourse to the “essence” of the community—they merely reproduced the views of those doing the defining. Their informational value was virtually nil. Let us look at three examples:

Höhn: “In the community the individual completely casts off his individual personality, he no longer feels as an individual person, he merges with the community spirit and acts out of the community spirit. He becomes the bearer of this spirit and is now ready to make sacrifices, even if his individual interests are thereby severely damaged.”
⁹⁶

C. Dernedde: “Belonging to a community means participating with other people in a shared world of values. In all members a highest value must be recognized as the universally binding law and made the starting point of individual and social action.”
⁹⁷

Larenz: “Being a member of a community does not mean being the bearer of abstract qualities common to all. Instead, it means that a person, with his individual nature, is woven into a larger whole that is also individual in nature.”
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We could multiply such examples at will from the literature of all legal fields. All descriptions of what “community” is had certain characteristic traits: acknowledgment of an absolutely binding—though,
paradoxically, never precisely defined—value system, the claim of exclusivity with regard to those who were not included in the community, and, finally, the suppression of “community-harming” opposition, that is, the subordination of the individual to the whole, which was said to represent the truth in the Hegelian sense.
⁹⁹

Other than by force, this subordination could be effected only by transfiguring external compulsion into supposed voluntarism. That is why National Socialist literature affirmed time and again that the subordination of the individual to the (national) community was not an act of external compulsion; instead, individuals were following the reawakened call of the blood, which was urging them toward community. Hence the literature spoke repeatedly of the community that was “ordered” and “charged” by blood; the element establishing community was “blood, not some abstraction.”
¹⁰⁰

Moreover, the corollary to community, the idea of the person, was not to be understood as the individualistic counterpart to community. Instead, a person, too, should regard him- or herself merely as a member of the whole, whose rights—without a need to emphasize this explicitly—were “inherently” limited by the interests of the community.
¹⁰¹

The propagandistic creation of an “inner” compulsion toward community thus complemented the external compulsion of the state’s instruments of power. The pressure that was exerted on “honor and conscience,” as a more sublimated instrument of rule, had the advantage of working indirectly and therefore being more difficult to recognize. The intentions of those who propagated the national community were to create a soldierly war community that had abolished or suppressed its internal contradictions in order to heighten its effectiveness on the battlefield. Those contradictions included the distinction between private and public law—that is, the dualism of state and society, and the principle of the separation of powers. If these were abolished, the protection of individual liberty also became meaningless, for in the total community, in which rulers and ruled are identical, a violation of the sphere of private liberty can no longer occur. Höhn logically concluded that a legal dispute between the individual and the administration no longer made sense.
¹⁰²

As a result, anyone who—like Koellreutter—wanted to preserve a minimum of legal protection against encroachments by the state could be defamed as a “liberal reactionary.” Individuals who insisted on their “rights” showed by this very act that they had not yet fully grasped the idea of community. Likewise, efforts to circumscribe the concept of community through definitions could be interpreted as inner reservations
toward the community, since the latter by its “nature” did not know any boundaries.

By analogy to the military Führer-follower model, a community no longer needed any supervision of the rulers. Distrust of the leadership was replaced by trust, the separation of powers by the consolidation of state power in one hand. The following passage from a speech by Freisler illustrates the consequences for the law of this kind of thinking:

We Germans march in columns. As soldiers we look forward. And there we see one person: our leader. Wherever he points we march. And wherever he points he always marches first, ahead of us. That is in keeping with our German nature. In the face of this all the “constitutional law” of the past has blown away like chaff in the wind:

The separation of powers; supervision of the leadership by the led; protection of personal rights by courts; a state based on the rule of law, which nobody wanted less than the organs of justice themselves, that is to say, the review of true acts of leadership to determine whether they are in formal compliance with the law; constraints on the vanguard and limitations on their instruments of leadership; the rule of numbers over will, of anonymous numbers, that is, of irresponsibility.

All this—once carefully hedged about in constitutions with legal guarantees—has now been swept away.
¹⁰³

This kind of communal thinking was incompatible with a legal system that regarded as its cornerstones the legally enforceable subjective right of the individual and the concept of the state as a legal person. The terminological difficulties that arose from this incompatibility are only the reflections of a larger conflict that was by no means resolved when National Socialism came to an end. They reveal the discrepancies between the traditional
Rechtsstaat
and the totalitarian state contemptuous of the law, as well as the vagueness of National Socialist “ideology.” For instance, it remained unclear whether
community
, in keeping with the idea of race, meant all “Aryan” people without regard for national boundaries, or whether it meant the “political nation.” The invocations of “common blood” seem to point to the first possibility, talk about the national community more to the second. Finally, the terminological difficulties reveal the predicament of a jurisprudence that was accustomed to circumscribe concepts and piece them together into a system, but was now confronted with a government that openly dismissed intellectual systematics, definitions, and boundaries as a nuisance to its freedom of action.

We have seen how the concept of community was invoked to dialectically abolish social contradictions first of all in the realm of language.
¹⁰⁴
For the most part these were contradictions of an economic
nature, for instance, between seller and buyer, tenant and landlord, and other partners in debt relationships; between employer and employee; between neighbors; between public authorities and private property owners; and so on. In constitutional law economic contradictions (classes), old historical contradictions (confessions), and hierarchical contradictions (rulers, subjects) were presented as having been abolished in the concepts “community” and “Reich,” though in reality they had by no means been done away with. The establishment of a comprehensive police system and a network of informants and spies turned the concept of community into a mere phrase, unmasking it as the core of an ideology of power.

However, it would be wrong to deduce from this a fundamental affinity between communal thinking and totalitarian forms of rule. Given that in every form of government, including democracy, a few exercise rule over many and a permanent need exists for overcoming social tensions, the communal idea time and again offers itself as a way of abolishing these tensions on a higher, seemingly impartial level. As a component of a social metaphysics, the concept of community is a cross between empiricism and value judgment. As such it serves to rebuff individual demands, to resolve conflicts from the standpoint of the “interest of the community,” and to make the moral appeal to individuals to identify their own interests with those of the state.