It starts with paper. Its surface is rough and porous, the color a dirty beige. The smell emanating from the bundles situates them somewhere in the basement of history. The edges are frayed, the folds cracked, the covers barely managing to contain the folders’ inner contents. The files unabashedly abide in the past. They have had their time: they have passed through hands and over desks, circulated among authorities, been submitted and resubmitted, requested, read, considered and implemented, until their normative glow first dimmed by the passage of time finally completely extinguished. A curt “Filed” sealed their end. Measured against its original purpose, the paper was now useless; it remained on site for a decent period of time, but at some point, it was inevitably handed over to the official depository for old paper: the archive. There it met with new signs of wear (signatures, stamps, stickers), was re-sorted (in bundles, drawers, crates), and normatively reconfigured (archival value, data protection, personal rights), before the next utilization cycle could start again. The paper now describes the time in which it was once itself described, history bubbles out of the files. The files compress time: time of creation, time of use, time of remembrance, time of history, a papery thicket of time that moves effortlessly between today and yesterday and easily leads astray any view to the past. It begins with paper. But when?
On 26 August 1944, the Reich Ministry of Justice relayed to the higher regional courts a communication entitled “Lifestyle in Total War,” a collection of thoughts from Joseph Goebbels, the fanatic Propaganda Minster who had just received new powers to organize the “Total War Effort.” The “style of public life,” Goebbels complained, still had “in some places a strongly peacetime character”; theater performances tried to shine through “the most magnificent staging possible,” as did exhibitions “through the refreshments served at their opening.” This had to come to an end. In the future, all forms of socializing—receptions, inaugurations, festivals, music festivals, family celebrations—not directly related to the war effort were to be avoided. From now on, cultivating a visibly abstinent lifestyle would be an honor and demonstrate to foreign countries that Germany could not be expected to compromise.1 The needs of the war became the guiding principle for all of life. With consequences at all levels: a few days later, Reich Justice Minister Otto Thierack announced, with immediate effect, that he would refrain from sending “all kinds of congratulatory letters” and “only sign letters of condolence to relatives of the fallen.”2 The following week, the consequences came for the toilets, which were also expected to provide resources for the war; it was angrily noted that timed flushers were still being used on a regular basis, causing water consumption that was “objectively unjustified.”3
Then it was the turn of the court staff themselves. To minimize the impact on the workforce, in the late summer of 1944 the courts’ hours of operations were increased to 60 hours a week including Sundays,4 which, however, had to be reversed the following winter due to the lack of heating and electricity.5 On 1 November, the accountants at the Ministry noted that, percentage-wise, the judiciary now had more casualties than in the First World War.6 In Danzig, the guillotine and the gallows were packed in crates to keep them safe in view of the expected Soviet offensive,7 and in Stettin, the judicial authorities received a Christmas card at the end of 1944 with an encouraging quote from the war metaphysician Heinrich von Treitschke: “Therein lies the majesty of war, that the small man disappears completely before the great thought of the state; the sacrifice of one’s compatriots (Volksgenossen) for each other is nowhere so glorious.”8
State, Volk, sacrifice, glory: the judiciary was happy to make a contribution to these words of historical gravitas. The judiciary was well prepared for the war. As early as 1937, the Ministry had begun preparations in strict confidence, gratefully drawing on the wealth of experience from the First World War. At the beginning of the war, no fewer than 31 laws and ordinances were in place to transform the judiciary for its wartime operations. Two considerations were decisive. Firstly, to the greatest extent possible, the administration of justice should not get in the way of the war. Personnel had to be saved for the front, and those who were deployed were to receive comprehensive legal protection against legal objections at home. On the other hand, the civilian population should not have to do without legal services. The law was not allowed to disrupt the war, but, conversely, the war was not allowed to disrupt the law excessively. Justus Wilhelm Hedemann, the grand seigneur of National Socialist legal renewal, issued the shibboleth that a state could not renounce its legal system “even in the most bitter and consummate war”; it was known from the last war that “civil legal life continues unabated despite the most severe war events,” which is why the courts of civil and criminal jurisdictions, i.e., the ordinary courts, “must remain the palladium of the administration of justice in civil life.”9
And so they remained. A first major wave of closures was announced in February 1943 after the defeat at Stalingrad, but their implementation caused so many concerns that of the 2,000 or so local courts, in the end only 98 were shut down.10 Shortly afterwards, an order was issued to postpone all legal disputes that were “not war urgent.”11 This measure also had no major impact. Nobody knew what “war urgent” meant, especially with regard to civil proceedings. The judiciary therefore translated “war urgency” as “procedural efficiency” and used this as an instrument to emphasize its own importance for the home front and at the same time control the daily workload. Complex proceedings were postponed—affecting 2–4 percent of all cases received—while the rest continued as before.12
Of course, this “rest” was still not comparable to the workload in peacetime. The political, economic, and ideological conditions of the war greatly changed the judicial statistics at all levels. The last call-ups to the Volkssturm (the German territorial army) reduced the workforce to around 30 percent of what it had been in 1939, and of the almost 14,000 judgeships, only a good 6,000 remained occupied in 1944.13 There were also fewer and fewer trials. In criminal law, more and more responsibilities were initially transferred to the Sondergerichte or “special courts” (as opposed to ordinary courts); attempts at streamlining this process dated from 1943. Ordinary crime was to be dealt with through administrative channels wherever possible or brought before the ordinary courts. The criminal justice system had therefore declined noticeably but was still kept busy. In civil law, on the other hand, there had been deeper cuts. Property disputes fell by around three quarters; a formal explosion of divorces and child support cases and the continued existence of tenancy disputes only partially compensated for the decline.
In the fall of 1944, the traditional court system faced a further blow when Goebbels wanted to remove the final peacetime veneer from public life. The legal process was abolished in principle on 27 September. The higher regional courts were to disappear completely and the Reichsgericht (“Supreme Court of the Reich”) to handle only a few meager residual responsibilities; the timing: six weeks. But even this radical cost-cutting measure came to a halt halfway through. The timeline that was set for the courts to wind up their affairs had to be extended several times and was finally scrapped at the end of the war.14 Even Goebbels had to be instructed that abolishing the judiciary would jeopardize the preservation of state order, give the population “a feeling of lawlessness,” and generally trigger “chaotic conditions.”15
And then there was legal obstinacy. It had retained its traditional stubbornness even during the total war. In November 1944, the judges were informed in a detailed circular that in the future the cumbersome calculation of court costs according to the value in dispute and the scale of fees was to be replaced by a “free estimate” by the judge.16 Such an accusation drove the judiciary into resistance. The Nordhausen Regional Court President brought out the last guns of dogmatic differentiation in order to demonstrate the full extent of the legislative failure: if the defendant loses and is ordered to reimburse the opposing party’s lawyer’s fees and advances, but the latter is less than the actual costs, then the plaintiff must obtain a title against the defendant for these actual costs. This is only possible through a cost assessment procedure, which in this case—unlike in the past—can also be carried out without an explicit application. In the Nordhausen district, the report summarized, the new costs law is therefore rejected without exception; it is “unreasonable and outdated.”17
Who could disagree? The accusation of failing to meet the demands of the time referred to what state propaganda described as the “vital hour of fate for our people.”18 In September 1944, the Red Army was on the borders of East Prussia, the population was working on the defensive walls and assembling themselves for the Volkssturm, and in the west, US troops were crossing the Reich border for the first time. The regulation of court fees was really not suited to making a measurable contribution in this crisis, regardless of whether it was with or without a free estimate. Nevertheless, it was difficult to conceal the fact that the judiciary, in their glorious sacrifice for State and People, not only maintained the usual biotopes of legal know-it-allism, but also further cultivated their already existing tendency to agnosia. The jurists clung to the few problems they could still solve themselves. In November 1944, the Aachen Local Court President, who had already lost his judicial district by this time and was therefore sitting in Düren, detailed regulations on how to prepare now for future relocations. By the time his ingenious plan reached his superiors in Berlin, the new office in Düren had also been destroyed by a bombing raid, which is why the Reich Ministry of Justice limited itself to the terse remark: “Overtaken by developments.”19
One administered one’s own downfall, objectively, soberly, unrealistically. The deeper the Allies advanced into the interior of the country, the greater the void in the German justice system became. At the end of 1944, the Zweibrücken Higher Regional Court President had to admit to the Reich Ministry of Justice “that the vast majority of the Lorraine courts are no longer accessible to me.”20 On 5 February 1945, the Breslau Higher Regional Court President went on record with the sheer insanity that the situation in his district could “currently be regarded as substantially relaxed,” an almost schizoid assertion—two regional courts were already occupied by the Red Army, and the Higher Regional Court itself had left Breslau due to an acute enemy threat.21 The chain of command had to take ever more tortuous byways to pave a path for service through the shrinking Reich. On 10 April 1945, the Rostock General Prosecutor, who had been residing in Schwerin for three years following his office’s destruction, inquired about the fate of his colleagues at the Reich Ministry of Justice, which itself was sitting in Berlin with only a tiny emergency staff. He was informed by telephone that “for the authorities of the Higher Regional Courts of Cologne, Düsseldorf, Frankfurt/M., Darmstadt, Zweibrücken, and Kassel, neither alternative offices nor administrative staff had been set up”;22 Königsberg, Danzig, Breslau, Stettin, and Kattowitz were already lost anyway. German law had lost its area of application. A good week later, the Reichsgericht disappeared with the occupation of Leipzig by US troops, and shortly afterwards dissolved the last remnants of the Ministry. With the capitulation of the German Reich, the administration of justice had come to an end. The law was suspended.
At the very back of the legal cabinet of curiosities, we can attribute a legal consequence to this peculiar case. The law stands still—ius stat, murmurs the educated jurist, which is why the suspension of law is also called “Justitium,” a peculiar remnant from antiquity, originating somewhere in the depths of the Roman Republic, where all pending court hearings were interrupted when the troops had to be mustered.23 It soon became a general symbol for major events in public life. Wherever a temple was to be inaugurated, an imperial descendant was to be admired, or the death of a ruler was to be mourned, a Justitium could be proclaimed, and the repertoire of conceivable measures correspondingly varied: closure of the treasury, exchange offices, markets and stores, suspension of auctions, senate meetings, and court hearings, supplemented by, depending on the occasion, the renunciation of jewelry, festive garments, marriages, or offerings. The Justitium paralyzed public life in an almost proverbial sense; Livius speaks of an “iustitio simile otium,” a calm similar to the Justitium.24
The modern era rediscovered the Justitium in a more technical sense. “Tempore hostilitatis non currit praescriptio” belonged to the canon law since the twelfth century,25 the statute of limitations does not apply in the event of a force majeure. This idea appeared in secular legislation from the early modern period, for example in the Prussian Land Law of 1620, which stipulated that the statute of limitations could be interrupted in the event of war, plague, flood or “other emergencies.”26 Half a century later, the first expressly so-called Justitium of modern times was issued. In 1671, the Great Elector of Brandenburg retroactively imposed a Justitium for the years 1626 to 1648 so that “the passage of these years should not be detrimental to anyone’s rights.”27 The order of the law was not to be disturbed by the disorder of the world. The Justitium ultimately made it possible to operationalize every state of emergency in legal terms—by simply declaring it irrelevant when nothing else worked.
This is a very typical process for modern law. As soon as the functioning of the law came under threat, more law was simply enacted. In 1780, the Justitium officially found its way into the new Prussian Code of Procedure, was subsequently adopted in all reforms, and finally in 1877 ended up in the Code of Civil Procedure for the German Reich.28 The government draft was succinctly worded: “Should, as the consequence of war or another event, the court cease its activities, the proceedings shall be interrupted for the duration of this situation.” The proposal contained no justification, was adopted without debate in both the first and second readings and, apart from spelling adjustments, has not been amended once since.29 No big words: the suspension of the law is self-evident.
What can you say to that? If the courts no longer work, then they no longer work. This carefree tautology has hardly left a trace beyond its own tracks. Even 200 years of dedicated military history has only produced a handful of footnotes.30 But for all its pointlessness, the regulation certainly had a deeper meaning. With the suspension of legal services, the law was given an instrument to legally avert the danger of lawlessness, a kind of legal threshold that decides between the existence and non-existence of law—and pretends that this question also is a question of law. An encapsulated myth remained in the Justitium, which carried within it the memory of a milestone in legal phylogeny, the transition to the omnipresence of law. In the middle of the nineteenth century, Philipp Eduard Huschke, a biblically faithful Romanist, cloaked this tireless progression of law in particularly devotional imagery: “The expression iustitium itself, compared with for example solstitium, also apparently expresses the idea that the iuris dictio itself runs through all the working days like the sun in the sky.”31
The very suspension of law is linked to an almost messianic expectation of salvation. In the Justitium, the law anticipates itself. At some point things will move on; and if then completely different than before, then it is still normal. Law distributes the grace of its normativity to all places and at all times. This legal theology is not a question of faith. Legal reality rests on an opulently institutionalized compendium of rules that can, if necessary, authenticate itself in its enforcement. In law, nothing comes from nothing. The normativity of programs compels us to seek points of reference in our own system’s history—laws, regulations, precedents, academic authorities—even in radical new beginnings. Anyone who doubts the law therefore has access to a large number of law journals, libraries and law firms; if this is not enough to boost one’s fundamental trust in the law, then the marshal threatens and, for persistent sinners, prison. The law is always there, whether one likes it or not. And so it is only logical that in the legal literature of the twentieth century, unclouded by any irony, the disconcerting assessment prevailed that “a purely actual obstruction of the court”—whatever that may be in contrast to war or flooding—would no more lead to a suspension of law than the “death of all judges.”32 This idea was introduced by Adolf Baumbach’s standard commentary, in the eleventh edition of 1936. If the judges are alive, the law proceeds as usual; once they are dead, so too. And then? “The determination of a suspension of law,” Baumbach continues with astonishing ease, “is for the judge to decide.”33 Somewhere, someone will be found to replace the lethally incapacitated colleague: another judge, a new judge, an instant judge, a pseudo-judge who rises to the status of a normal judge through self-appointment. Whatever. A brief flicker in the engine room, and then the law works again as calmly and reliably as usual. Whether the law still exists is a question—of the law.
The suspension of law in Germany at end of the Second World War, described by contemporaries as a “comical product of theorizing conceptual speculation”34 and later stylized as a “legal disaster,”35 was certainly not beyond reach of the legal imagination. Since the judiciary itself was supposed to decide whether it was still operational or not, even its non-existence remained dependent on its existence. This was also the case in 1945. The Allies closed all the courts under their control, committed the apparatus to democracy and the rule of law, denazified the staff, and eventually allowed the courts to continue operating, usually after a few weeks. They brought many new ideas with them. But no new paper. “We didn’t even have paper, but started on the back of former NSDAP calendars,” Werner Baerns, the second post-war president of the Düsseldorf Higher Regional Court, later recalled.36 The old waste became the basis for the new judicial administration.
Emergency paper provided the ingredients for legal work, thin and brittle, soaked with time; judgments, orders, decrees, court fee stamps, delivery certificates from the German Reichspost, all covered with the emblems of the defunct regime. After the occupation, they were crossed out, pasted over, cut out. “Crossing out the swastika emblem with pen strokes is not enough,” the Stuttgart Ministry of Justice instructed its authorities—the forbidden symbol had to be completely obscured.37 Until the end of the 1940s, lawyers’ letterheads, often only thinly concealed, announced former membership of the Nationalsozialistischer Rechtswahrerbund (“National Socialist Association of Legal Professionals”). Even the courts occasionally required reminders. In 1949, the Berlin-Mitte Local Court complained that National Socialist emblems had recently been used on official letters and further noted: “This has offended recipients and given rise to misinterpretations.”38
Misinterpretations: the new era was no longer the old. But it was not yet the new one either. Pinpointing its location in this in-between time was impossible. It was rarely even attempted, and when it was, it was well hidden somewhere in the logbooks of the bureaucratic machinery. In the diary for judicial administration matters of the regional court in Freiberg, Saxony, a last entry on 5 May 1945 documents the “occupation of offices by the Wehrmacht”; at the end of June it continues with the “startup of the judiciary” and the “report of members of the judiciary on leave for political reasons.”39 In between was a small, crooked double line—later reinforced by a sharply drawn red line—with which someone has illustrated the upheaval. At the Hanover Local Court, an unnamed court clerk drew a coy little red line in the criminal proceedings register, marking off the dates of 6 April 1945 (three cases of receiving stolen goods, punishable by between two and eight months in prison) from the first theft, which was sentenced on 13 June under the new system (fine: 50 Reichsmarks).40 At the Plauen Regional Court, the clerk allowed himself a particularly striking ornament. He initially gave his line in the civil proceedings register a pithy title—“New entries since the occupation by the Allied troops”—then, in a second step, introduced new file numbers, which postponed the start of the ongoing proceedings until after the capitulation.41
Such an act of historical-political self-empowerment was, of course, an isolated case. Interventions in the statistical recording of annual business or in the numbering of files were otherwise not even considered. The judicial proceedings had emancipated themselves from current events; they followed a legal choreography that was not necessarily dictated by the dramas of world history. An inconspicuous line remained the boldest measure. In court, the mass murder, the destruction, the end of the war, the subsequent denazification and the new political framework were circumstances whose legal relevance had to be proven on a case-by-case basis. Just one example: on 27 March 1945, a lawyer responded to a lawsuit that had just been filed at the Stuttgart Regional Court, stating that he would “only be able to respond in some time in view of the circumstances and my involvement as a member of the Volkssturm.” The next page in the file documents the plaintiff’s lawyer’s response dated 1 December 1945. The entire letter: “In the Kuhn/Müller case, the legal dispute could not be continued at the time due to enemy occupation. I hereby call again and request that a new trial date be set. I immediately request the defendant to submit the still outstanding defense.”42 In the logic of legal action, war and peace are, to borrow a phrase from Niklas Luhmann, a noise in the environment. “We lived in a fiction of the continued existence of the service,” recalled a contemporary witness in retrospect.43 Not even the validity of the business distribution plans was questioned but merely readjusted “for the remainder of the financial year.”44 The year 1945 was a temporal continuum, like all previous years.
This was long suppressed. Even decades after the end of the war, 8 May continued to be used as a caesura to mark an epochal transition from a National Socialist before to a forced democratization after. Things were bleak until 8 May, after which the arduous reconstruction began, with much more success in the West than in the East. In reference to military terminology, this turning point was called “zero hour.” It has long been known that this “zero hour” never happened. Nevertheless, 8 May still exerts something of a long-range narrative effect.
Judicial history also readily uses this before- and after- lens.45 Those who study National Socialism are looking for National Socialism, especially in the judiciary, and those who study the post-war period are looking for a fragile constitutional state, sustained by the continuity of National Socialist careers. The descriptions revolve around obedience, opportunism and rare examples of resistance, and extend to an almost comical cliometrics that claims to have calculated that in civil law, “0.58 percent of judgments … were influenced by National Socialist legal thinking.”46 Routine legal work thus comes close to resistance; what function the remaining 99 percent had, whether judgments were also influenced in this sense after 1945 and, in general, why only the political should be political, remains unclear.
Anyone who argues in this manner marginalizes the role of the judiciary. The massive restrictions imposed by the National Socialist justice system must be taken into account; criminal law became increasingly brutalized, civil law lost procedural steps, and many issues could not be heard for official or informal reasons. But where the judiciary still had a say, its authority to make final, binding decisions on right and wrong was not seriously contested. Criticism of judgments were limited to a tiny fraction of the decisions rendered.47 In July 1943, Reich Justice Minister Otto Thierack issued a circular complaining that even within the same special court, similar cases were being decided very differently.48 As late as May 1944, the minister promised his judges a new law that would finally adequately reflect their special position in the state apparatus, as they were representatives of the Führer himself and—unlike the other officials—independent in their decisions.49
Who emerges victorious from a tenancy dispute and for what reasons was, legally speaking, as contingent in 1945 as it is today. Some cases went one way, others another. The judiciary was entirely at peace with itself: its social composition linked it, as usual, to the upper middle class. The war caused an increase in the average age of those in office, which at the same time weakened any revolutionary tendencies, as the generation born before 1900 had still experienced the stability of the bourgeois age. The administrators of the law were free to transfer whatever conflicts brought to their attention elsewhere and to treat them dogmatically until the political content was diluted into homeopathic doses. It was precisely in this way that they performed their intended function, namely to increase the utility value, efficiency, and resilience of social structures; and this very function remained in demand even after 1945.
In other words, the politics of National Socialist law is not to be found solely in the political.50 Quite the opposite: the search for National Socialism within National Socialism promises little return. In the history of justice, there are no longer any legends to be refuted, no crimes still to be proven—just as, conversely, the discovery of previously unknown pockets of resistance is not to be expected. The tone of indignation with which the Nazi era was explained after 1968 now seems out of date. Today’s enlightenment no longer hurts anyone. The German judiciary has recently been pursuing with holy seriousness the last surviving craftsmen of the death machine, subjecting them to an act of symbolic justice before their predictably imminent death. The files can be closed. National Socialism has been relegated to the realm of general history.
The consequences are, as always, ambivalent. On the plus side, there is an alignment with the usual professional practices, which at times seems almost liberating. No one has to fear restrictive archival policies and collusive networks anymore. National Socialism is undergoing a kind of secularization. The tone is becoming more serene. The narrative helplessness, however, stands out all the more clearly as a result. The emphatic “Never again!” that has accompanied research in the background for decades has become unmistakably tired. At the same time, the political decency that has long provided distance to right-wing excesses is rapidly dissolving. The guiding principle that “Auschwitz” must not be repeated is trite if it is not supported by a consensus on what “Auschwitz” actually was and where its causes lie. The way we deal with the “Third Reich” has now reached the stage of systematic othering; National Socialism is what we are not. There is something quite paradoxical about the situation. The evidence of the regime’s crimes is simultaneously proof of its categorical otherness and therefore also of why we no longer have to deal with it today. “Right-wing perversion,” “unspeakable suffering,” “monstrous crimes” are then both exculpatory and incriminating terms: it is always the others who are perverse. National Socialism is receding into a comfortably distant place.
This is one of the reasons why the perspective has been shifted here. The focus is not on what separates us from National Socialism, but on what we share with it: the normal. The link between present and past experience is formed by the problems of everyday life as they are dealt with by the judicial system, then as now: tenancy law, marital law, insults, minor bodily harm, cases that can count on a routine objectivity in court. The reproduction of this objectivity through constant repetition is what is referred to here as the administration of “normality.” At its core is the question of why, even under the conditions of 1945, it was still attractive for anyone to settle their disputes through the legal system. Violence was omnipresent, and yet, time and again, people stubbornly referred to the tenuous power of paper. The normal did not lose its appeal even under completely abnormal circumstances. Why?
The discourse surrounding “normality” makes use of decidedly unspecific semantics. In the words of the German writer Hans Magnus Enzensberger, it feeds on a “terminological pudding.”51 Its fields of activity can initially be characterized primarily negatively, namely by the fact that hardly anyone perceives them as spectacular or extraordinary. The only positive characterizations available are clumsy synonyms such as everyday life, average, or banal. This relatively loose use of the term has a certain tradition in research on National Socialism, beginning with Hannah Arendt’s characterization of Adolf Eichmann, but reached the historiographical mainstream in 1993 at the latest, when Christopher Browning’s study on the Ordinary Men exposed the view of the “ordinary” German as a potential Nazi perpetrator behind the legend of the proletarian perpetrator of violence, excess, and riot.52
If this soft rhetoric of the average is applied to the law, then sources that have so far played a rather marginal role in research into National Socialism become relevant: the files of the ordinary courts. This research collected as many of these as possible to be able to trace the functioning of the judiciary during the final battle and reconstruction period. They were supplemented where available by administrative and general files, general decrees, file regulations, and service instructions from the institutions involved, as well as personnel files of the most important actors.
The capitulation of the German Reich also provides a temporal orientation here but does not establish a sharp narrative boundary. The aftermath of the war lasted for years in many places—in some areas, decades—while, conversely, the clean-up efforts did not only begin after the capitulation but, depending on the military situation, long before. The external circumstances—personnel, premises, inventory, provisions—were generally less favorable after 8 May 1945 than before. The periodization was therefore designed to trace the overlapping effects of legal obstinacy. Ruptures and disruptions are also possible in this system, but they are not structurally prescribed by limiting the cases dealt with to the years of National Socialism or to the historical period of reconstruction.
The study therefore takes its sources from the entire period between Stalingrad and the currency reform.53 At the turn of the year 1942–43, the lost battle of Stalingrad marked the beginning of the long end of the war, and 1948—the Trizone, currency reform, Berlin blockade—marked the end of the all-German occupation period. Afterward, the West indulged in the pipe dream of the continued existence of the German Reich, while the East saw itself as the true, new Germany. Until then, there was more to unite than to divide, which is why the sources are taken from all the occupation zones. Until 1947, there was a lively exchange between the zones. Legal assistance was provided to one another for arrests, literature and jurisprudence from the West was studied in the East, and authors and jurisprudence from the Soviet zone were published in the West.
In the first years after the war, “East” and “West” did not confront each other as monolithic blocs. In the French occupation zone, for example, a well-liked separatism had no support in the other zones. The Americans initially pursued a rigorous denazification policy that bore more resemblance to Soviet practice than to that of their Western allies. Within the Soviet zone, on the other hand, there were considerable differences, as Thuringia and Saxony in particular initially clung stubbornly to a bourgeois concept of the rule of law. Under the aegis of Eugen Schiffer, the veteran Reich Minister of Justice, the bourgeois jurist remained the ideal of the state administrative official in the East, which was able to keep the new Volksrichter (people’s judges) at bay for a few more years.54 Accordingly, “positivism” was found to be the suitable culprit in all occupation zones, which could only be combated in future with the help of the higher powers of natural law. The later so-called “natural law renaissance” received its decisive impetus from the East in this first phase.55
As this research only begins when the systematic disenfranchisement of entire population groups had already been completed, the focus on the normal is sufficient. It has been known for decades that the judiciary played a significant role in these processes of exclusion.56 The macabre juxtaposition of welfare and murder was clear to see in the Volksgemeinschaft (“national community”) at the end of the Second World War. Carl Schmitt’s dark fantasies of true democracy, which thrived on homogeneity and the destruction of heterogeneity,57 had long since established themselves as maxims of state action. “Within the community, peace, order, and justice prevail. Outside the community, power, struggle, and destruction prevail,” was Ernst Fraenkel’s famous analysis in 1941.58 The loyal Volksgenossen could, if necessary, settle their disputes in court without being confronted with the unpleasant questions of politics; other forums had long been available for these issues.
If the activities of ordinary jurisdiction are brought into focus here, this serves to supplement the already familiar depictions of violence, not to replace them. One cannot exist without the other. Only the normal gave form and meaning to the state of emergency; without order, the extraordinary could not unfold. The fact that this legal everyday normality can actually be documented is already an initial result of this work. Public memory, but also the apologetic writings of the first post-war decades, have condensed the post-Stalingrad period into a single, uninterrupted night of bombing, during which there were neither the conditions nor the need for normal legal life. All that remained of the justice system was criminal justice, albeit in such a perverted form that it could no longer be described as justice at all.59 This assessment is wrong in several respects. Even the special courts produced far more mass-produced legal goods than their name suggests, and even at the Volksgerichtshof (“People’s Court”), one repeatedly encounters peculiar residues of normality.60 Admittedly, the overall source situation is not favorable. Complete court records below the Reichsgericht are rare, especially from the final months of the war. They have survived more often on the periphery than in the centers, are not always filed where they belong, and their titles create expectations that often have to be corrected after reading them—in both positive and negative respects. But they can be found.
Another source problem that usually indicates “normality” does not arise here either. Memory is mostly interested in the abnormal, in storms, wars, disasters, and other deviations from the usual course of events. Everyday life, on the other hand, is accorded little space in cultural memory. Court records are different. Modern law is under a constant pressure to keep records, which particularly values the inconspicuous and formal. Unlike general history, working with court records therefore does not suffer from a lack of normality. Even in their outward form—the sentencing formula, date of the main hearing, the court composition, the structure of the facts and arguments, alternation of perfect and imperfect tense, etc.—the judgments of the time are structured in such a way that a jurist today can easily recognize himself in them, in other words: normal.
Rather, the operational mode of law harbors the opposite danger of succumbing to a—possibly only imaginary—overdose of normality. Since the dawn of the modern era, law has predominantly been played out in files. However, files are a highly indifferent medium. They document disputes between neighbors as well as Freisler’s tirades of hatred before the Volksgerichtshof. Paper creates distance, and legal paper is particularly thick in this respect. The written record obeys an order that turns the color of the file covers into signifiers and assigns each position of the file number—conveyed by the general file plan—its own meaning. The files are based on the ideal of an identical structure; the highest possible degree of formalization is intended to make official paper processing as efficient and rational as possible.
The workings of law therefore consist primarily of two steps: first, the brute force that occurs in so-called reality is translated into the cool words of technical jargon, then these words are captured on paper. The resulting paper world absorbs the legal world.61 This lends legal disputes a strangely civilized character, even where life and death are at stake, especially in retrospect. Sounds and smells, dust and sweat, but also drama, comedy, and boredom evaporate without a trace; even an execution only survives in the form of a prefabricated protocol that offers the attending judicial officer the columns “time of presentation,” “time of handover,” and “time of execution” for a second-by-second accounting. There is a great danger of mistaking the normality of the law for the normality of the world, of confusing the elegant words with real life, and of inferring a clean reality from the neat order of the files. The law shows too much rather than too little normality, a danger that can only be countered with the tried and tested historical remedies of contextualization and relativization.
Court files record the events at the heart of the law. Nevertheless, they are used here for predominantly non-legal purposes. The aim is to shed light on a society’s history through the form of institutionalized conflict resolution. The path via the normality of law is not necessarily required. In other areas of government and society—administration, science, art and culture, religion, or sport—a tenacious defense of one’s own normality can also be observed right up to the point of collapse. From the book production of German legal scholarship: In 1945, the staunchly National Socialist Hanseatische Publishing House presented its loose-leaf collection Kriegssachschädenrecht (“War Damages Law”) for the last time. Gustav von Schmoller gave the interested public a final overview of Das Wirtschaftsrecht in Böhmen und Mähren (“Commercial Law in Bohemia and Moravia”). Leo Raape updated his outline of Deutsches internationales Privatrecht (“German International Private Law”). The final sign of life of National Socialist jurisprudence—quite meaningful for self-absorbed German Rechtswissenschaft—was a commemorative publication: Festschrift für Leopold Wenger. Presented by friends, colleagues and students on his 70th birthday. Second volume, with foreword by Mariano San Nicolò and Artur Steinwenter in Munich and Graz, April 1945.62 Examples from the rest of the world: on 20 April 1945, the German Reichspost in Vienna issued its last stamps (“Party formations SA and SS”), on 21 April, Lufthansa operated the Berlin-Munich route for the last time, and on 29 April, a last friendly match took place in Hamburg between the Hamburger Sportverein and Altona 93.
The fact that law, of all things, is examined here as a normality operation is not a random choice. Normality and law are closely interlinked. Both are omnipresent and generally inconspicuous, yet both fulfil fundamental functions of human socialization. Normality provides a projection surface for the longing for peace and order. It guarantees reliable procedures and promises calculable results; it ensures the correspondence of experience and expectation and stands for a predictable future. It marks the transition from chaos to cosmos. The “normal” is the backdrop to the fragility of the world.
Key components of this backdrop are of legal provenance. Law, too, lies between chaos and cosmos. Anyone who wants to end the state of nature and transform the army of lone warriors into a society must pass through the gate of law. This essential function is reflected in the fact that since the beginning of the modern era, a professionalized staff has been in place for the administration of law, whose sole task is the rational, unbiased, and reliable maintenance of the state’s stock of norms. In practice, as we know, these requirements are not always met. Nevertheless, the law is perceived as a repository of the expected. Outliers are not excluded, but they also emerge as such. Law promises neutrality, objectivity, stability, composure, procedures for de-escalation and linguistic containment.
Law is therefore, at least to a certain extent, always “normal.” Every disruption, every defect, every confusion has its place on the legal map. The dogmatics of the Justitium demonstrate this: for the legal self-conception, mapping the legal vacuum is also a legal operation. The Justitium bridges the abysses of existence. What happens in life is abstracted, conceptually dissected, and formalized in law in a way that guarantees that even the most outrageous impositions remain legally manageable. Legal constructs create a second level of reality, a paper world that is not only separate from the world of life, but also hierarchically superior to it. Paper governs life. Even the death of all judges is no obstacle to the proper administration of law. And therein lies a difference from other areas of society: the law assumes almost religious omnipresence. A legal capitulation to the afflictions of the world is out of the question.
The analysis of normality therefore contains no stylistic device of moral relativization—on the contrary. The law described here is neither politically nor even morally normal, but it is based on structural and organizational principles that would still be considered “normal” today. The label of “normality” reduces distance. It does not exonerate the past but rather describes the burdens of the present. The usual reflexes such as “legal perversion” or “darkest chapter” are then no longer enough to protect us from National Socialism. In the fabric of normality, National Socialism is moving closer to us than we would like. The stage is open.