University of Nevada, Reno Judicial Independence and the Tragic
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University of Nevada, Reno Judicial Independence and the Tragic Consequences that Arose in Nazi Germany from a Lack Thereof A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Judicial Studies by Stephen Michael Yeager James T. Richardson, J.D., Ph.D., Dissertation Advisor May, 2014 © by Stephen Michael Yeager 2014 All Rights Reserved UNIVERSITY OF NEVADA THE GRADUATE SCHOOL RENO We recommend that the dissertation prepared under our supervision by STEPHEN MICHAEL YEAGER entitled Judicial Independence and the Tragic Consequences that Arose in Nazi Germany from a Lack Thereof be accepted in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY James T. Richardson, J.D., Ph.D., Advisor Thomas F. Burke, Ph.D., Committee Member Greta E. de Jong, Ph.D., Committee Member Richard T. Martin, Ph.D., Committee Member Greta E. de Jong, Ph.D., Graduate School Representative Marsha H. Read, Ph.D., Dean, Graduate School May, 2014 i ABSTRACT This dissertation discusses the topics of judicial independence and judicial accountability using the federal and state court systems of the United States as major examples since much of the work on judicial independence derives from the American experience. I define judicial independence by addressing the inquiries of independence for whom, independence from whom, independence from what, and independence for what purpose. Conditions that foster or supplant judicial independence are then summarized to facilitate their application to the case of Nazi Germany and its judicial system. It is next proffered and considered that upon Adolf Hitler’s usurpation of power within Nazi Germany judicial independence was abruptly and purposefully dispatched through the passage on March 23, 1933, of the Enabling Act, or The Law for the Recovery of People and Reich from Suffering.1 In his speech to the Reichstag advocating the acceptance of this law, Hitler was forthright, honest, and provided an omen of what was to subsequently transpire relative to judicial independence in the Third Reich when he stated, “The security of tenure of the judges on the one side must correspond on the other with an elasticity for the benefit of the community when reaching judgments. The centre of legal concern is not the individual but the Volk.”2 Hitler had obtained unlimited power in a constitutional manner and therefore whatever he did was legal in the juridical sense, but the rule of law was completely preempted and no longer prevailed within Germany. No judicial system could resist and continue to function in a constitutional manner once Hitler had been granted dictatorial 1 Koch, H.W. (1989). In the name of the Volk: Political justice in Hitler’s Germany. (London, GB: I.B. Tauris & Co. Ltd.), 35. 2 Id. at 35. ii powers. The creation of the Volksgerichtshof or People’s Court on April 24, 1934,3 and its ensuing operation epitomized a belief in the law to the detriment of justice, sanctioning the National Socialist regime to pervert justice to accommodate their particular purposes. This paper concludes with a discussion of some individuals who chose to resist the barbarism and inhumanity of Nazi tyranny and how they were dealt with by the judicial system in Germany. These individuals were convinced that Hitler and his minions were ruining Germany, once known as the land of “thinkers and poets,” and had to be stopped before total destruction occurred, recognizing they were being ruled by criminals who had no regard for human life. The individual in the resistance attempted to show that there was indeed “another Germany,” that not all inhabitants of Germany were hateful, arrogant, and uncultured. 4 However, their actions culminated in “show trials” before the wholly dependent People’s Court, resulting in clear demonstrations of how Germany’s judiciary had lost all semblance of independence, and were therefore complacent in what transpired during that dark period of German history. 3 Koch, H.W. (1989). In the name of the Volk: Political justice in Hitler’s Germany. (London, GB: I.B. Tauris & Co. Ltd.), 45. 4 Holmes, B.R. & Keele, A.F. (1995). When truth was treason: German youth against Hitler, the story of the Helmuth Hübener group, based on the narrative of Karl-Heinz Schnibbe. (Chicago, IL: University of Illinois Press), xxiv-xxvi. iii TABLE OF CONTENTS Contents Page Abstract i Chapter I: Introduction 1 Chapter II: Literature Review 6 Chapter III: Methodology and Methodological Concerns 14 Chapter IV: Judicial Independence and Judicial Accountability 18 Chapter V: Judicial Independence, or a Lack Thereof, in Nazi Germany 55 Chapter VI: How Could German Civilization Collapse So Completely? 61 Chapter VII: The Rule of Law and the Führerprinzip 75 Chapter VIII: The German Court System and Its Applicable Laws under the 83 Nazi Regime Chapter IX: The Volksgerichtshof (VGH), or People’s Court 107 Chapter X: Dr. Roland Freisler, President of the People’s Court 137 Chapter XI: Johannes “Hans” Georg Klamroth 157 Chapter XII: Helmuth Guddat, Also Known as Kunkel, Subsequently Hübener 172 Chapter XIII: Count Helmuth James von Moltke and the Kreisau Circle 193 Chapter XIV: The White Rose 219 Chapter XV: Conclusions and Recommendations 250 Coda – Evading Responsibility for Crimes against Humanity 265 Bibliography 271 United States Constitution 271 Reference Books 271 iv Books 271 Law Review Articles 275 Bible 277 Eulogies 277 Motion Pictures 277 Newspaper Articles 278 Personal Interview 278 Articles 278 1 Chapter I: Introduction As individuals in American society, we have been extremely privileged to reside within a country that has aspired to emphasize a fundamental principle, the rule of law. Unfortunately, the citizens of the Weimar Republic of Germany began to experience the disintegration of this proposition on January 30, 1933, with the usurpation of power by Adolf Hitler and his tyrannical regime. Judicial independence and autonomy were expeditiously dispatched and completely terminated through the subsequent functioning of the Volksgerichtshof (“VGH”), or People’s Court, in Nazi Germany. The People’s Court was a tribunal designed to judicially implement the dictates of Nazi Party elites without any semblance or pretext of judicial independence or autonomy. In this dissertation, a comprehensive analysis of judicial independence and judicial accountability will be proffered on both the federal and informative state court levels within the United States, so as to provide a paradigm of the components necessary for their existence within a democracy. It is then asserted and discussed that judicial independence was intentionally arrogated and deliberately absent within Nazi Germany. In addition, it is contended that most members of the German judiciary who presided under this tyranny did so voluntarily under Hitler’s dictatorship, and were fully cognizant that they had to comply with the “general line” prescribed by the regime when effectuating their juristic functions. 2 Legal positivism5 teaches that all law emanates from the state and demands from judges absolute loyalty to the letter of the law even if they consider the law unjust.6 As a theory, it equates law with the behavioral norms determined by the state and society, and which therefore require no further justification, rejecting natural law, describing it as mere unproven speculation. In essence, legal positivism is marked with doubt as it negates the possibility of the existence of generally accepted and unchanging ethical norms.7 Virtually no professional group emerged from the Nazi era with such a clear conscience as that of the jurists. They categorically denied that German judges had participated in the injustices of the Hitler dictatorship.8 On the contrary, judges ascribed all guilt to the lawmakers, asserting that they were simply following the existing legislation as a result of their “positivistic training.” It was true that legal positivism, with its demand that judges be strictly bound to the law, had been the unchallenged doctrine of the authoritarian state under the Kaiser. During the fourteen years of the Weimar Republic, however, the judicial system and legal scholars assumed a position against the democratic government. Only a minority of legal theorists had implored the judiciary to obey the laws of the democracy. The courts of the Weimar Republic rarely announced that a particular law could not be applied or was unconstitutional, but with “interpretations” that had little to do with its actual wording, they could achieve the same 5 Black’s Law Dictionary, Eighth Edition, defines “legal positivism” as, “The theory that legal rules are valid only because they are enacted by an existing legal authority or accepted as binding in a given society, not because they are grounded in morality or in natural law.” 6 Koch, H.W. (1989). In the name of the Volk: Political justice in Hitler’s Germany. (London, GB: I.B. Tauris & Co. Ltd.), 247. 7 Id. 8 Müller, I. (1991). Hitler’s justice: the courts of the Third Reich. (Cambridge, MA: Harvard University Press), 219. 3 effect. Apart from a small minority of supporters of the Republic, no one in the German legal profession endorsed positivism any longer.9 Placing the judiciary under a strict obligation to follow the letter of the law would have been an impediment to the “legal order” of the Nazi regime and would have limited its power. For this reason, judges were required to declare their loyalty to the Führer rather than to the law itself. Any appeal