7,776 words

Part 4 of 4

Translated with notes by Simona Draghici

IV. Leadership and Ethnic Identity as Basic Concepts of National Socialist Law

1. National Socialism does not think abstractly and stereotypically. It is an enemy of every normativist and functionalist concoction. It secures and cultivates every true national substance wherever it encounters it: in country, kin or kith.[1] It has established the law on inherited peasant estates [Erbhofrecht]; it has saved the peasantry;[2] it has cleansed the German civil service of alien elements, thus restoring its station.[3] It has the courage to handle differences differently and to carry through necessary differentiations. So wherever it makes sense it will acknowledge the jurisdiction of a drumhead court martial, as it has reintroduced it for the army, through the law of 12 May 1933 (RGBL, I, p. 264), on the basis of the regulations of the old army criminal court.[4] Likewise, with regard to certain organizations of the party, such as SA and SS, a special kind of discipline in the ranks may be conceivable through the jurisdiction of improved courts martial.[5] The scope of the authority of the summary court martial will expand on its own, with the formation of genuine ranks. In a different way, but with the same sense of its own concrete growth, National Socialism may administer justice in the sphere of communal auto-administration, with objective differentiations between village, country-town, industrial town, big city and metropolis, without being embarrassed by the false notions of equality of a liberal-democratic schema.

a) The acceptance of the many-sidedness of spontaneous life might lead again without delay to an unfortunate pluralistic splitting of the German people into denominations, tribes, classes, estates and interest groups, unless a strong state uplifts and guarantees the whole of the political unity over the multitude of forms. Every political unity needs a coherent internal logic of its institutions and normative systems. It needs a unitary idea of form to give a general shape to all the spheres of public life. In this sense also, there is no normal state which is not total at the same time. However numerous the viewpoints of the regulations and the institutions of the various spheres of life, a consistent main principle must be recognized firmly as much. Every uncertainty and every split become a crevice for the insertion of formations first neutral, then inimical to the state, and an unravelling spot of the pluralistic splintering and disintegration. A strong state is the premise of a sound life, characteristic of its different ranks. The strength of the National Socialist state resides in the fact that it is dominated and imbued from top to bottom and in every atom of its being by the idea of leadership. This principle, by means of which the movement has grown great, must be applied both to the state administration and to the various spheres of auto-administration, naturally taking into account the modifications required by the specificity of the matter. It would not be permissible, though, to exclude from the idea of leadership any important sphere of public life.[6]

The nineteenth-century German state of the soldiers and the civil servants, so strong externally, committed the serious political error of allowing another organizational principle to arise in the communal auto-administration, a principle different from that of the state “executive” (that is, of the state itself, as it was then called). The local representation, resulting from elections, would not necessarily be by itself the basis for a split within the state, given the essential dissimilarity between local community and the state. But the elected local representation was perceived as the true carrier and representative of the local community, precisely because it was elected, and as a result, a formal principle that contravened the monarchical state was acknowledged for the community. Thus the local autonomy became a spot by which the liberal-democratic parliamentary principle broke into the monarchical-authoritarian state of the civil servants. As early as 1810, Baron vom Stein came to realize that he “had not paid sufficient attention to the difference between constitution and administration.” Under the typical pretext that it concerned itself with the affairs of the “apolitical” auto-administration, the liberal bourgeoisie would create a sphere of public law for itself, that would elude the state, and so be “free of the state,” and in which other political ideals would count, as well as other formal and informal principles than those of the state. Afterwards, under the cover of “the German law, such notions as the “idea of association,” “freedom of auto-administration,” “private business,” a legal doctrine, aware of its aim and purpose, eliminated the leader-principle from the essence of the Prussian state. The theory of the equality of all human associations, particularly with regard to the community and the state, quite efficiently backed the conquest of the Prussian state by means of an organizational principle radically foreign to it.

It is true that the German state of soldiers and the civil servants offered a tenacious resistance to the apparently irresistible progress of liberal ideas. It worked out an exemplary organizational interpenetration of state administration and local auto-administration, of which the Prussian Landrat[7] is the most famous illustration. Still the three-class electoral law, which was in force with regard to local elections,[8] hindered the ultimate effects of a sound liberal democracy. Nevertheless, one should not mistakenly think that the state was not intellectually on a par with its advancing adversary, now national-liberal, now liberal-conservative, now advocating the idea of association, now communal liberal. Here, loo, though, as shown above (Chapter III, 2), it kept fighting on the defensive. In the long run, it was defeated as a result. It is not necessary to go to great lengths to show that matters must stand differently in today’s state and administrative law. In a total state, a local parliament cannot organize political demonstrations of protest, as was the case, for instance, with the 1898 descriptive resolution of the Berlin Municipal Council, which claimed to be entirely “apolitical,” a “purely auto-administrative matter,” a “simple act of piety,” to lay a wreath on the tomb of the revolutionaries of March 1848 (Decision of the Chief Administration Court [OVG] of 9 July 1898), or the quarrel over flags between the state and the town at Potsdam,[9] which was decided in favor of the town by the judgment of the Supreme Court of the German Reich on 9 July 1928 (Lammers-Simons, I, p. 276).

b) The organizational application of the doctrine of leadership requires in a negative way at first that all the methods reflecting the liberal-democratic mentality in their essence must be discontinued. The election from below, with all the residues of the customary electioneering, comes to an end. (As shown above, the new elections of 12 November 1933 for the Reichstag can be understood only as a component of a popular consultation).[10] Nor even the old voting procedures, with the help of which a majority, formed through a coalition after a sort, turns a minority into a majority and makes of the division a weapon to outvote and vote down the others,[11] cannot continue or repeat itself in a one-party state. Finally, the typically liberal divisions and dualisms between the legislative and the executive, and at the local organizational level, between the deliberative organs and the administrative or managerial organs have lost their meaning. The legislative competence of the Reich Government is a first, path-breaking instance of the removal of those artificial divisions. Everywhere, the system of repartition and discharging of responsibilities must be replaced by the clear responsibility of the leader who has acknowledged the mandate, and the election must be replaced by selection.

The new idea of leader is of a particular and decisive importance for the National Socialist state, and has as its natural complement, the institution of a Council of the Leader [Führerrat]. It stands by the side of the Leader, with advice, suggestions and opinions; it assists and supports him; it keeps him in live contact with his following and with the people, but cannot relieve the Leader of any responsibility. It is neither an organization of intimidation, control, and transfer of responsibilities, nor must it represent an internal dualism (that is, popular representation against the government, local representation against local governing body), and even less a pluralism. Whence, the council of the Leader cannot be elected from the outside or from below, but must be selected by the Leader, according to distinct principles of selection that first of all take into account the link with the party organization carrying state and people. In this way, it also becomes possible to give far-reaching consideration to the particular conditions and needs, local and regional, as well as practical, and of the various estates. Leader and council of the Leader are kinds of formation just as simple as they are resilient in their concrete application to the most diverse fields of life. They have found their initial, clear and exemplary form in the Council of the Prussian state, the great constructive work of the Prussian Minister President Göring. In the Prussian law on the provincial council of 17 June 1933 (Grosser Senat [Full Senate], p. 254), the idea is already transferred from the sphere of government to that of the administration. Today, it must win general acceptance and be universally recognized as a principle.[12]

2. In view of the fundamental significance of the idea of leader, it becomes all the more necessary to draw a dear, and also a theoretical, differentiation concerning the concept of leadership, the core concept of the National Socialist state law, and to safeguard it in its peculiarity. In order to grasp the full meaning of the concept, and avoid the danger of falsifications and confusions, it is essential first of all to distinguish it clearly from other concepts, seemingly related. Because such concepts, which are quite necessary and indispensable in their spheres, but are also already impregnated by another spirit, have been employed deliberately in order to make them absorb the idea of leader, and in this way, to immobilize its real force. It is generally known that it is characteristic of the single- minded liberal democracy to see its ideal in the political “absence of leaders.” But it has not yet reached the scientific consciousness of most of the German jurists that for almost a century, a system of specific conceptual constructs had been at work to eliminate the idea of leader and that the lever of such concepts will be placed at the ready above all there where they should have a politically destructive and virtually shattering effect.

The legal state thinking, dominated by the basic principle of security, calculability, and measurability, transformed all the notions, concepts, and institutions, under the pretext of working out legal concepts within normatively predetermined abstractions. It would be said, for instance, that every obligation, if it were to be a legal duty and juridically relevant, must always have a content that is normatively measurable, and as a result, subject to verification by a judge. In this simple way, another kind of duties, inaccessible to the individualistic liberal legal thinking, is expelled from legal life, and the monopoly of the legal scientificity is gained by quite a distinct political ideology (which is neither particularly juridical nor particularly scientific). Through this interpretation, the allegiance of the followers, for instance, of the civil service, of the comrades of the people, vital to the law of the leader-state, and which is a legal duty in the full sense of the word, has been reduced to a “simply moral” or “simply political” matter, and deprived of its legal kernel. At the Leipzig trial of the dismissed Prussian Cabinet of the Weimar system versus the German Reich, that order of ideas celebrated its triumph.[13] The allegiance of the provinces to the Reich, which needless to say, is a legal obligation with a political content, was destroyed in its essence with the help of such a liberal separation of law from politics, and ironically treated by a particularly typical representative of the Weimar system as something “sentimental.” In that interpretation, to place the National Socialists and the Communists politically on a par meant “law.” To distinguish the communist organization, a dangerous and deadly enemy of the German state, from a German national movement meant but a violation of “equality before the law,” and a “political” judgment contrary to a “legal” or “juridical” assessment. The anti-state kernel of the liberal antithesis between law and politics became obvious there. Indeed, in its pronouncement of 25 October 1932, the Supreme Court of the German Reich sought to remain strictly “legal and neutral” even in this respect and to evade a ruling. This is made clear in the following extract, which is word for word, sentence for sentence, characteristic of the motives of decision, in the famous pronouncement:

The possibility of interpreting such attacks as infringement of duty on the part of the Province cannot for that matter be excluded even when the minister did not act in his official capacity but as a private citizen or party member. But the examination of Minister Severing’s statements, even when it was carried out in the light of the then entire situation, established that the border of the required reticence was not transgressed in a manner by which a violation of duty by the Province against the Reich may be detected therein.

Another example is the concept of supervision [Auf-sicht], which in the half a century of liberalistic praxis, developed into a notion antithetical to the concept of political leadership. It is self-understood that even nowadays there are still a great many ways in which the word “supervision” is used (office supervision of the civil servants, school supervision, ecclesiastic supervision, a.s.o.), and as such, its sphere of validity remains unchallenged. Likewise, in every kind of leadership, one may still discover some “supervision.” Notwithstanding, it is necessary to draw clear distinctions between the particular spheres of validity of supervision, and to resist the confusion which centers the concept of true leadership on the concept of supervision.

Bismarck’s federal constitution of 18 April 1871 was the constitution of a hegemonic federation; Prussia had the hegemony, that is to say, the political leadership. That was uncontested and uncontestable. But it was not explicitly written in the text of the constitution, and since the concept of political leadership eluded the mode of thinking of liberal positivism, this decisive concept of the law of the German federal state was indeed of little interest to the theory of the state law. One would lay oneself open to the accusation of being “political” and “unscientific,” were one to render justice to the truth and the reality of the structure of a federal state wholly and absolutely erected on a hegemonic foundation. So the central concept of that constitution of the Reich was left out. On the other hand, the concept of Reich supervision found an all the more extensive treatment and development. And it is a logical consequence of this kind of theorizing that the last systematic work on the constitutional law of Bismarck’s constitution, the book by H. Triepel, Die Reichsaufsicht (The Supervision of the Reich] (1917) dealt with it under the aspect of Reich supervision. That a German scholar such as H. Triepel, who had often proven his own sense of the political reality against the normativist distortions of the state law, came to lay particular stress on this aspect, points to the power of suggestion of the habits of the liberal constitutional thinking and to the internal logic of such ways of thinking that shifted from leadership to supervision, and for which even the execution of federal orders by force was only a case of “Reich supervision.”

With the advent of the Weimar Constitution, the trend in favor of the concept of supervision would develop further and perfect itself. The Weimar Constitution is a particularly typical document of the bourgeois legal state, and its ideological groundwork encloses the liberal divisions of law and politics, law and force, intellect and force, a.s.o., but above all, it has removed the Prussian hegemony altogether, and thereby has completely eliminated that last leading element from what was maintained of the federal constitutional organization. By the fact that this Constitution also replaced the former Federal Council [Bundesrat] by a Supreme Court, which it allowed to settle federal constitutional disputes, as well as those between the Reich and the Provinces by judicial procedure (Article 19),[14] it made available to all the interested Reich-disruptive forces — the political party pluralism as much as the one-state particularism — a new political weapon for the elimination of the idea of political leadership, namely the lawsuit in the Supreme Court. Among the authors of the Weimar Constitution, there were still some restraints against those methods. With the increasing difficulties of the internal political situation, the needs for political leadership made themselves felt even more sharply in the practical life of the state. But the prevailing normativism of the then constitutional science and the absence of any true theory of the state zealously contributed to the juridical transformation of internal politics. That condition too culminated in a concept of supervision. As its last word, the old theory of supervision coined the phrase constitutional supervision (in the article by Johannes Heckel on the decision of the Supreme Court of 25 October 1932, Archiv des offentliches Rechts [Archive of Public Law], Vol. 23, p. 211). After the concept of “Reich supervision” in the federal state law of Bismarck’s constitution had been made into a suitable means for the normativist relativization of the political leadership, the completely normativized concept of “constitutional supervision” became a reality at the end of the Weimar system. In the phrase “Reich supervision” one still at least could recognize the Reich as the subject of the supervision. Other conceptual constructs, such as school supervision, local supervision, at least include the object of supervision. On the contrary, in the phrase “constitutional supervision” neither a subject nor an object come to light, but only the criterion of supervision: the constitution. And this concept, otherwise well intended, had to serve as the theoretical basis of the deciding political authority of every federal system, ultima ratio[15] of the political unity of a federal Reich, that is to say, the execution of federal orders by force! In this way, the destruction of the political leadership readied the highest degree.

Three factors characterize the elaboration and the development of the concept of supervision in the legal state into a true counter concept, in opposition to the principle of political leadership. The first, its normative bias. That is to say, the concept of supervision is linked to the introduction of a criterion for this supervision, regulated in advance, in keeping with the facts of the case, hence measurable and verifiable. All the relations between the supervising and the supervised were submitted to this predetermined regulation that ignored every concrete situation. Likewise, the vague notions of such a system of supervision, and even the concept of discretionary judgment, are ruled by this trend. They too have to find the limits, and in actuality a judicially verified limit, in the “excess of judgment” and in the “misuse of judgment.” Even the “prohibition of arbitrariness,” which will be interpreted into all these conceits of supervision, has the political purport to impose the fiction of the calculable measurability on the basis of previous standardization and the regularization of all mutual relations of supervision.

The second characteristic feature in the formation of a concept of supervision antagonistic to the leadership is the tendency to place on an equal footing the subject and the object of supervision. It ensues easily, with logical consistency, from the just-mentioned normativism of the theory of supervision. Because as soon as the criterion of supervision, supposedly calculable and verifiable, is established, one may assume from the fiction, that it was already decided and stipulated in advance, what the “intervention” (this word, so loaded with political polemic, is characteristic of an allegedly purely “judicial” thinking), guided by supervision, can permit itself, and what the supervised must allow himself to expect. Hence the subject of supervision may any time refer to the norm as the sole authoritative criterion against the supervision. In that case, it becomes apparent that in reality he must above all be subjected not to the supervising instance or to a political leader, but only to an allegedly objective normative content verifiable by an onlooking third party. It becomes further apparent that even the supervisor is subject to the same norm, and consequently, it can be no question at all of leadership and submission, but on both sides, only of an “objective” interpretation of the norm and of the “impartial” delimitation of jurisdiction. Consequently, the terms “supervising guidance” are wrong, as well, and must be replaced by “the objective validity of norms” and “the application of norms.”

The third peculiarity of this concept of supervision, opposed to that of leadership, ensues with the same logic from the two preceding characteristics. If it is a measurable norm and both parties to the relation of supervision are on the same footing in their submission to the norm, it is unavoidable that only an equally “objective” onlooking third party, that is, an independent judicial instance, should sit in judgment over both parties as the organ of the objective norm. Such a concept of supervision inevitably requires a judicial instance and the settlement by trial of all differences between the object of supervision and the supervisor.

Ultimately, from all these superimposed and extremely varied aspects of the concept of supervision, there appears a judicial instance which has the last word through more or less judicial proceedings. The ideas of protection and security, essentially necessary to the liberal concept of the legal state, when taken to their logical conclusion, transform the administrative tribunals for the adjudication of disputes related to the law of communal supervision into authorities for the supervision of the state supervision. The administrative criminal courts of the civil service law, which should be strict drumhead courts martial, are transformed into mere protective mechanisms of the law of administrative supervision. The Supreme or the Constitutional Courts have been transformed into an organ for the political supervision of the government confined to constitutional supervision. The result is always administration of the law instead of political leadership. A trial judge is not a political leader, and the methods of today’s legal controversy are no model for the creation of a leader-state. In a crucial political case, normalization and decision by trial mean only a commitment of the leader to the benefit of the disobedient. The equalization of the parties only means the equalization of the enemy of the state and people with the comrades of the state and people. A decision reached by an independent judge means only the submission of leader and follower to a politically irresponsible non-leader.

3. To lead is not to command, to dictate, to govern bureaucratically from the center, or any other kind of rule you like. There are many forms of dominion and order, even of fair and reasonable dominion and order that are no leadership [Führung]. The domination of India or Egypt by the English may be justified on many grounds, but it is something altogether different from a leadership of the Indians or of the Egyptians by the English. The exploitation of the former German colonies by the so-called mandatary powers, in conformity with Article 22 of the Covenant of the League of Nations, passes off in humanitarian garb as “guardianship” and “education,” but is not leadership, either. Nor are most cases of dictatorship, perhaps necessary and salutary, expressions of leadership in our sense. However, we must be wary of obscuring and weakening a concept, specifically German and National-Socialist by assimilation with foreign categories.

There are various images and similes that should make apparent the relationship between dominator and dominated, governing and governed, and it seems to me even more correct from the viewpoint of the legal science to become, aware of the factual meaning of these various designations rather than to speak with the help of certain conceptual clichés about a “special” power relation which unquestionably finds its limits both in the predetermined norm and in “private life.” The Roman-Catholic Church has given to its power of domination over its faithful the image of a shepherd and flock, which it cast into an idea of its theological dogma. Essential in this image is that the shepherd remains absolutely transcendent to the flock. That is not our concept of “leadership.” A famous passage in Plato’s Statesman draws various comparisons worth considering to describe the statesman. Turn by turn, he is compared with a physician, a shepherd, and a steersman, ultimately to retain the image of the steersman.[16] As “gubernator,”[17] it has entered all the languages influenced by Latin, those of the Romance and Anglo-Saxon peoples, and has become the word for “government” [Regierung], such as gouvernement, governo, government, or as the “gubernium” of the former Hapsburg monarchy. The story of this “gubernator” contains a good illustration of the way a graphic comparison may become a technical legal concept. Another characteristic image is that of horse and horseman, which the great French historian Hippolyte Taine used for Napoleon’s rule over the French people.[18] It justified the imperatorial stature of that Italian soldier who seized the state of the French nation, in a splendid manner, because it gives the more profound explanation of the internal pressure under which that rule stood: to normalize itself hastily inside and outside through the ever renewed military successes, and at the same time, through recurrent legitimations (plebiscites, Papal crowning, marriage to a Hapsburg princess) and institutionalizations (a new nobility).[19]

In essence, none of these images comes upon what should be understood by political leadership in the essentially German sense of the word. This concept of leadership comes wholly from the concrete, substantive thinking of the National Socialist movement. It is symptomatic that every image fails entirely and every fortuitous image is more of a picture or simile than the very leadership in question. Our concept is neither necessarily nor appropriately an intermediary image or a representative simile. Neither does it come from baroque allegories and representations nor from a Cartesian idée générale.[20] It is a concept of the immediately present and of a real presence. For that reason and as a positive requirement, it also implies an absolute ethnic identity between leader and following. Both the continuous and infallible contact between leader and following, and their mutual loyalty, are based upon ethnic identity. Only ethnic identity can prevent the power of the leader from becoming tyrannical and arbitrary. It alone justifies the difference from any rule of an alien-transmitted will, however intelligent and advantageous it might be.

4. The ethnic identity of the German people, united itself, is thus the most unavoidable [unumgänglichste] premise and foundation of the political leadership of the German people. That was no mere abstract postulate when at the Congress of the National Socialist German Jurists at Leipzig in 1933, the idea of race was time and again highlighted in the Leader’s forceful closing speech, in the riveting addresses of the Leader of the German Legal Front, Dr. Hans Frank, and in the distinguished specialized reports, as for instance, that of H. Nicolai. Without the principle of ethnic identity, the German National Socialist state cannot exist, and its legal life would be unimaginable. Again, with all its institutions, it would be immediately handed over to its liberal or Marxist enemies, now haughtily critical, now obsequiously assimilationist.

The legal scientists of the new German jurisprudence need in particular to become aware of the systematic force of this concept of ethnic identity that pervades all the judicial deliberations. The fiction of the normativist commitment of the judge to a law has nowadays become theoretically and practically unsustainable in many essential spheres of the life of legal practice. On the whole, the law cannot any more find the calculability and reliability which were part of the definition of the law in the doctrine of the legal state. The reliability and calculability are not inherent in normalization but in the presupposedly normal situation. The so-called general clauses and vague concepts have invaded all the spheres of legal life, even the criminal law, from all sides, and in countless circumlocutions: “faith and fidelity,” “good manners,” “important motive,” “unreasonable harshness,” “reasonableness,” “particular plight,” “disproportionate disadvantage,” “prevailing interests,” “prohibition of abuse,” “prohibition of arbitrariness,” “claim for payment of interest” — these are only a few examples of the dissolution of the legalistic normativism.[21] Such general clauses had in the long run become unavoidable and indispensable. They wholly determined the overall picture of our administration of justice regarding both private and public law. A recently published work (1933) by Law Professor Hedemann of Jena, Die Feucht in die Generalklauseln [Escape into General Causes], produces a great picture of the enormous spread of these clauses. In earnest terms, he warns of the danger of a complete dissolution of the law into normatively vague and incalculable generalities. But I do not believe that the big problem of the general clauses will go away with it. The disintegration and vagueness of all the concepts seem to me by far more advanced than Hedemann presents it, especially when considering the available literature of all the branches of jurisprudence. Even “effective” and “immediate possession” may be recognized as vague concepts not by some Talmudist but by a highly regarded German law professor as Philipp Heck of Tübingen. In the theory and practice of law, we have reached the point where the epistemological question is raised with all the practical seriousness: to what extent a word or a concept of the legislator can in a truly calculable way bind the people who apply the law? We have made the experience that every word and every concept soon become contentious, uncertain, vague, and unsteady whenever in an oscillating situation they are seized by minds and interests differently conditioned.[22] Particularly all our administrative law is pervaded by such vague concepts, not norm- but situation-related (such as “public order and safety,” “endangering,” “hardship,” “proportionality,” a.s.o.), and also concepts such as “due discretion,” “arbitrariness,” “prohibition of arbitrariness” are so incalculable in case of conflict that they themselves may turn into the worst arbitrariness.

Looked at from that point of view, there are only “vague” legal concepts nowadays. Nobody wants to maintain though, that it would be possible to return to the ancient faith in a safely calculable legal normalization of all conceivable cases, with all their facts matching wholly in advance. The fiction and the illusion of a law that would cover all the cases and all the situations matching the facts and subsuming them in advance cannot be revived.[23] The idea of a complete codification or regularization is hardly feasible nowadays. “A return to a strict positivism is out of the question,” says Philipp Heck (Jur. Woch., 1933, p. 1449), and he is right. Thus, the whole application of the laws stands between Scylla and Charybdis. The road forward seems to lead away from the shore and ever farther from the firm land of legal safety and constraints of the law, which at the same time is also the land of the judge’s independence. The road back to a formalistic legal superstition recognized as meaningless and long outdated historically is not worth considering either.

There is only one road. The National Socialist state has been treading it with great firmness, and the Secretary of state Freisler has given it the clearest formulation in the call: “no reform of justice but reform of jurists.”[24] If an independent administration of justice must continue to exist, even though a mechanical and automatic commitment of the judge to predetermined regularizations is not possible, then it all depends precisely on the breed and type of our judges and civil servants. Never has the question “quis judicabit”[25] had any such crucial importance as today. Neither in the liberal-democratic system were ethical and moral requirements missing, as concerned the judge’s “creative personality.” But that remained empty declamation, because the “personality” was referred to only in general terms, in order to avoid distinguishing between the ethnically identical and the aliens. It did not mean the concrete German people but only “persons,” serving in this way the liberal individualism. The true substance of “personality” must be secured with all firmness, and this is inherent in the commitment to the people and the ethnical identity of every man entrusted with the exposition, interpretation, and application of the German law. Out of the positive necessities of the scientific legal work, the idea of the ethnic identity will pervade and dominate all our public law.[26] That is valid for the career civil service, as much as for the legal profession essentially interested in the creation and the shaping of the law, as well as for all the cases” in which comrades of the people become active in the management of public affairs, the administration of justice and in jurisprudence. Above all, this will guarantee a fruitful collaboration in the constitution of different new “councils of leaders.”

We not only feel but also know from the most rigorous scientific insight that all justice is the law of a certain people.[27] It is an epistemological truth that only whoever is capable of seeing the facts accurately, of listening to statements intently, of understanding words correctly, and of weighing impressions about people and things properly joins in the law-creating community of kith and kin in his own modest way and belongs to it existentially. Down, inside, to the deepest and most instinctive stirrings of his emotions, and likewise, in the tiniest fibre of his brain, man stands in the reality of this belongingness of people and race. He is not objective whoever with a clear objective conscience believes that he can be so because he has exerted himself hard enough to be objective. An alien wants to behave critically and also to apply himself shrewdly, wants to read books and to write l^oks, he thinks and understands differently because he is differently disposed, and remains, in every crucial train of thought, in the existential condition of his own kind. That is the objective reality of “objectivity.”

As long as one could be confident that the judge and even the administrative official were only a function of the normativist legality, only the familiar “law-applying automaton,” a simple “concretization of abstract norms,” could one ignore the truth that all human thinking is bound to existence as every standardization and interpretation of facts are bound to the situation. Montesquieu’s famous sentence that the judge is “only the mouth that utters the words of the law,” “la bouche qui prononce les paroles de la loi,” was even in the eighteenth century interpreted in a mechanical way.[28] For our present-day susceptibility, this sentence already points to the sphere of the living human being, filled with organic, biological and ethnic differences. Today we have become more receptive, we see even the diversity of the mouths, if I may say so, which utter the ostensibly same words and sentences. We hear how these same words are “pronounced” very differently. We know that the same vocable in the mouths of different peoples not only sounds differently but also means something else in thought and fact, and that in matters of legal interpretation and in the recording of the facts of the case, small deflections have quite astonishing, remote effects. Nevertheless, we must and will hold onto the legally secured position of the German civil servant as much as onto the independence of the judge, in particular. Hence out of necessity, we demand their commitment without which all the guarantees and freedoms, all the independence of the judges, and above all, that “creativity” would be but anarchy and an especially noxious source of political dangers. We seek a commitment which is deeper, more reliable and more imbued with life than the deceptive attachment to the distorted letter of thousands of paragraphs of the law. Where else can it rest but in ourselves, and in our kin. Even here, in view of the inseparable connection of the commitment to the law, the civil service and the judge’s independence, all the questions and answers flow into the exigency of an ethnic identity without which a total leader-state could not stand its ground a single day.

Notes

[1] The German words Stamm and Stand, which literally mean “trunk” and “standing” respectively, form an alliterative phrase that in its generalized usage, long preceded Hitler’s regime. By that time, it had no more sense than the English “kith and kin.” Considering the National Socialist efforts to produce a Germanic heritage of their own, with a general appeal, however hollow it might appear to some, it occurred to me, that by using the Anglo-Saxon terms in this translation, some of the nuance of that trend would be preserved.

[2] The law of 29 September 1933 declared all farms of 7.5 to 10 hectares indivisible and unsaleable, in order to preserve the peasants, tillers of the German soil and the progenitors of pure German blood, as the foundation of national vitality. Only such farmers were entitled to call themselves German peasants. As those farms could be neither sold nor mortgaged, the measure ceased to benefit the owners during the period of recovery that followed.

[3] Reference to the law of 7 April 1933 mentioned above, see note 31. It also underlines the National Socialist intention of reducing all the organizational principles of the civil service to that of ethnic identity — a law of nature — and as such the ultimate guarantee of its effectiveness. Some three centuries earlier, Thomas Hobbes dared to express his doubts on the issue in his De Cive (The Citizen), chapter V of any English edition.

[4] To that a new army law was added on 20 July 1933 which ended the jurisdiction of the civil courts over the military, and abolished the republican practice of electing representatives of the rank and file to those courts.

[5] The way in which the SA was reined in, so to speak, six months later could not be foreseen from the scant legislation on the jurisdiction of public bodies available at the time. After the fact, a government law of 3 July 1934 justified the killings as legal measures taken in defense of the state in an emergency. The Army, at least, was apparently satisfied with that explanation because it failed to launch any protest against the summary execution of two of its most prominent generals during the purge.

[6] In the 21 July 1933 issue of the Cologne newspaper, Kölnischer Zeitung, the news were published that the body of students at the local university had proclaimed Professor Dr. Carl Schmitt “intellectual leader.”

[7] As title, “County Councilor” dated from 1702, and was given to those reliable officers of Prussia’s central government, which were selected from the local nobility, and whose function was not only the collection of taxes and the general administration of the army, but also the conduct of economic policies in their respective counties.

[8] In virtue of the 1850 Constitution, the municipal councils were elected by the three-class suffrage. That meant that the voters were divided into three classes according to the amount of direct taxes which they paid (the total revenue of each community was divided into three, as well); the first class of voters were those whose payments in direct taxes amounted the first third of the total revenue, and they were relatively few; the second class of voters were those who together paid the second third, and they were more numerous, while the third class included the largest number who paid very small taxes or none at all. Bach class, though, elected the same number of councilors, who as electors would then all together choose one deputy for the Prussian Landtag (Diet) by open ballot.

[9] Likewise, in the Hapsburg monarchy, the State-disruptive forces, particularly the nationalities fighting the statal entity, used the local auto-administration as a gateway of incursion. Thus, it happened that the mayor of a provincial capital forbade the army to march along certain streets in the city. See Verw. Archiv [Administrativa Archives], xix (1911), p. 448, for a passage which also contains a fine illustration of the meaning and essence of the “legal state.”—Author’s note.

[10] The single-list elections for the Reichstag of 12 November 1933 were coupled with a national plebiscite on Germany’s withdrawal from the League of Nations, an action already completed. The unusual thing about that plebiscite, though, was the way it was formulated: “You German man, you German woman, do you approve of the politics of your Government and are you ready to acquiesce in it, and solemnly profess your faith in it?” Its aim was not only to wring out a declaration of trust but also an oath of fidelity of sorts. The official figures for the country-wide participation in the two events were 95.2 percent for the Reichstag elections and 96.3 percent for the plebiscite.

[11] The German play upon words in this sentence cannot be reproduced in English, so here it is in the original: “. . . eine irgendwie zusammenkoalierte Mehrheit eine Minderheit majoriaierte und aus der Abstimmung ein Machtmittel der Überstimmung und der Niederstimmung machte.”

[12] Carl Schmitt had been made a member of that council by Minister President Hermann Göring at the suggestion of Schmitt’s friend and colleague, Johannes Popitz. Notwithstanding, it met only once, though it was never officially dissolved. Nor was the initiative taken over by any other province, for that matter.

[13] When, on 20 July 1932, the federal government ousted the Prussian government, the latter turned to the Federal Supreme Court in Leipzig for arbitration. For the Court’s decision see note 55 above.

[14] The Federal Council (Bundesrat) had been the creation of Bismarck, and enacted in the Constitution of 1871. It brought together the North and the South German states to solve any conflictual issues either among themselves or with the Imperial Administration and to decide any constitutional amendments. It came to an end with the dissolution of the Empire in November 1918.

[15] Latin expression meaning “the last resort.”

[16] Latin word for “steerman,” as gubernare means to steer.

[17] Actually it is not the steersman that is the most satisfactory approximation of a statesman in Plato’s dialogue, but the weaver, because like him, the statesman has to bring together diverse natures into a uniform texture and on the loom of time, to weave the living fabric of a single society from the warp and the woof of human qualities (310e–311e).

[18] As a matter of fact Taine likens Napoleon to a condottiere. See H. Taine, The Origins of Contemporary France: The Modern Regime (Les origines de la France contemporaine: le regime moderne), vol. I, ch. 1 of any edition, French or English.

[19] As Carl Schmitt remarks in The Question of Legality, p. 56, at times Hitler himself felt the need of legitimizing his own power. Setting aside the public processions and acclamations, the first main gesture in that direction was the ceremony the opening of the new Reichstag in the garrison church of Potsdam on 21 March 1933, and in which President Hindenburg symbolically mediated between the historical glory and greatness of Prussian monarchy, and the young forces of the Reich embodied in the new chancellor, Adolf Hitler.

[20] In French in the original.

[21] The trend is not a specifically German practice: it may be encountered in the Western world as a whole, as an ever-renewed attempt to make the law reflect the shifting social interests and beliefs. The most notorious recent example that comes to mind is the American-coined “hate crime,” although as the moral philosopher Georg Simmel (1858–1918) used to say, one may hate someone or something thoroughly and do nothing about it. The danger here is that by association merely expressed feelings may be considered crimes, even in the absence of any action that might be directly connected with them.

[22] A pertinent example was the US President’s televised defense of 1998 against the Senate’s accusations of improper behavior. It was based on and made full and successful use of this principle, that is, of exploiting the vagueness inherent in abstract legal notions in order to reduce them to nothingness. Ultimately, the whole trial was turned into a farce at the expense of the tax-payers’ money and of America’s prestige abroad.

[23] Nonetheless, it was attempted, using ethnic identity as the moral grounds for a continuous flow of enactments which were formulated in the manner of the military criminal code, and were meant to regulate individual behavior. In that way, the aimed-at correspondence between the content of the regulation and individual conduct was attained.

[24] The jurists as judges, prosecutors, members of the Bar, legal counsels, law professors, etc. were either civil servants or subject to the regulations applicable to the Civil Service as a whole. Here Carl Schmitt quotes Roland Preisler (1893–1945) who made that declaration in his quality of chief personnel officer in the Prussian Ministry of Justice. During WWI, Preisler had been taken prisoner by the Russians. He became a Bolshevik commissar there, and returned to Germany as a communist, read law, and became a lawyer. Then, in 1925, he joined the National Socialist German Workers’ party. By 1934, he was already promoted to the office of state Secretary in the Reich Ministry of Justice. Then, in August 1942, he was appointed President of the People’s Court which was to try among others the conspirators of the 20 July 1944 plot against Hitler. Hitler called him “our Vishinsky,” while one of his victims, James von Moltke, appreciated his talent of debater. Preisler died before he could pronounce the sentence against the plotters, when a falling beam crushed him during an air raid over Berlin. I have lingered on these details in order to point to the ease with which one could switch from one ideology to the other, where the only essential shift was from proletarian internationalism to ethnic identity. Carl Schmitt’s stress on the latter as the single most important characteristic of the National Socialist system (p. 48) should be interpreted in this light.

[25] Latin expression meaning “who is to judge.” This question was raised by Thomas Hobbes (1588–1679) in chapter 26, page 133 of the Latin version of his Leviathan, after he had decided that it was power and not truth that made the law (autoritas, non veritas facit legem).

[26] Which would not do away with positive law but on the contrary facilitate its further development on a simplified, biological basis.

[27] That is to say, each nation has its own law and system of justice.

[28] The quotation is unidentifiable. I am tempted to consider it just an indirect invitation to those concerned to read Montesquieu’s Spirit of the Laws, particularly the first thirteen books, and reflect on the contemporary situation in Germany in the light of the French thinker’s remarks.

Source: Carl Schmitt, State, Movement, People: The Triadic Structure of the Political Unity, ed. and trans. Simona Draghici (Corvallis, Oregon: Plutarch Press, 2001).