Hitler’s Successful Rise to Power

 

and its Effects on the German Judiciary

 

By Adrienne Yerdon

 

 

 

            Adolf Hitler’s rise to power in Nazi Germany is nothing less than astounding.  In a little over a year, one man completely manipulated an entire government and legal system to acquire a totalitarian regime.  What many are not aware of is how Hitler’s strategy arose.  After a failed coup attempt in 1923, a short stay in prison and a controversial novel, Adolf Hitler abandoned his ideas that force was the sole solution in achieving complete control over Germany.  His second attempt revolved around statutes and regulations.  By understanding and contorting the law Hitler achieved sole political control and completely reorganized the German judiciary, all while under a blanket of legitimacy.

            Germany was severely handicapped after it’s defeat in World War I.  Because of this many will argue that the Weimar Republic was doomed from the start, and the resulting sentiments gave Hitler fertile soil for his totalitarian government.  In April 1919, the Treaty of Versailles was signed.  This “peace pact” had one intention, to completely demolish and demoralize what was left of Germany.  The treaty had many stipulations, among them the return of Alsace-Lorraine to the French, the reduction of the German Army to 100.000 men, the prohibition of a union with Austria, the loss of all Germany’s territorial claims, an undisclosed amount of money for reparations and Germany’s sole assumption of responsibility for that war and all the damage it had caused for the Allies.  Coming off from such a terrible war, and an even more horrific treaty, Germany was emotionally as well as physically incapacitated.  Attempts of the newly founded Republic were marred by assassinations and beatings, a trend of violence that did not quickly dissipate.  Inflation struck, culminating in 1923 where it cost trillions of marks to buy a loaf of bread.  It was during this time of international humiliation and disaster that the Nazi party took route.

            The Nazi party platform, eagerly and persuasively delivered to the masses by Hitler’s exceptional oration skills, encompassed twenty-five enumerated principles.[1]  The main stresses lie upon the right of national self-determination, equality for the German nation and racial superiority and preservation.  In 1921 the SA, a semi military band of men to protect the Nazi party meetings and harass rival organizations, was founded.[2]  These men were also called the Brownshirts.  Most were unemployed, some had a military background, and all were rogues.  Their brawls were praised as patriotic and under Ernst Roehm, their numbers swelled to 400,000.[3]  By using brute force the SA and Nazi party achieved notoriety and support, especially due to their nationalism and pride.  By 1923, this local fame and pent up aggression led Hitler and coconspirators to take action.

            At the time the Bavarian government was ruled by a triumvirate consisting of Generalkommissar Gustav von Kahr (the state commissioner), General Otto von Lossow (commander of the Bavarian army) and Colonel Hans Ritter von Seisser (commander of the state police).[4]  Kahr had called a meeting of approximately three thousand government officals on November 8, 1923 at the Buergerbraukeller (a beer hall).  Since the entire triumvirate was going to be there Hitler believed that he could force them, at gunpoint, to join him and his cause.  Outside the hall, 600 SA surrounded the building and set up a machine gun pointing towards the door while Hitler stormed into the hall and jumped onto a table yelling that the “National Revolution [had] begun”.[5]  After more banter, Hitler quickly met with the triumvirate, telling them that the renowned General von Ludendorff was the new head of the German nation.  More speeches and confusion ensued, and although not entirely agreed upon the end result was that the triumvirate had escaped the beer hall and news of quelling the putsch was in the air.

            In a last attempt to fully persuade the Bavarian government, Hitler, Luderndorff and approximately three thousand storm troopers marched on to the center of Munich.  Ludendorff, being a legendary general, was confident that the barricade of policemen they were soon to confront would not have the audacity to fire upon him.  Hitler’s demand that the Bavarian police stand down was met with bullets.[6]  No one is sure which side fired first, but the gunshots rang for approximately sixty seconds.  In he end between fourteen and sixteen Nazis and three policemen died and Hitler was now in custody.

            The putsch was a failure.  Hitler was indicted for treason and was sentenced to five years’ imprisonment.  He served less than two years, and while comfortably confined dictated the handbook of Nazism, Mein Kampf.[7]  This book revolved around Hitler’s philosophy for the preservation and procreation of Aryan blood.  He also argued that governmental control should be centered in a strong statesman.  Perhaps most importantly he blamed the Jewish for Germany’s defeat in World War I.  This provided the scapegoat that the Germans had been looking for, for the past 20 years.  The Jews were not the only group who shouldered the blame; the visibly and congenitally ill were also seen as needless procreators who only passed on pain.  This “pollution” from the inferior race corresponded with the social Darwinism that Hitler believed in, Aryans were the ultimate race and in the future they would surpass every other.  As insane as this logic seemed, it caught on like wild fire.  With the reemergence of a wiser Hitler, and continued economic strife due to the Stock Market Crash and Great Depression, the Nazi party was back in full force.

            In 1929 Hitler revamped his political plan.  With legality in mind, the party began to pursue middle and lower-class voters in small towns and rural areas.  By the end of the year the strategy was beginning to show real promise.[8]  For the following three years the Nazi party continued to grow as the Weimar continued to falter.  Hitler’s came to a new and important realization in 1930.  It was then that Hitler realized that the majority in the Reichstag was not important, the parties were too great and alliances too divided.  The only means to accomplish anything was through the presidential decrees that Hindenburg was forced to continually make.  Although Hitler had now realized the secret key to attaining power, initial popularity was still immensely important.

Before the 1932 elections Hitler participated in the “Hitler Over Germany” campaign where he spoke in fifty cities in fifteen days.  The Nazis were extremely successful at presenting different platforms dependant upon the audience.  The party members pitched their themes to the needs and fears of the appropriate social groups, and always relentlessly stressing their promise to rebuild Germany to her past glory.[9]

            The elections of 1932 yielded fruitful results, the Nazi party had won 230 seats and was now the largest party in the Reichstag.  A little over a year later, Hitler was further rewarded when he became Chancellor.  It was the current cabinet’s intention to meticulously watch Hitler, ride the wave of his popularity and then bury him under paperwork.  His intended role as a “figure head” did not work out as planned though.  On February 27, the Reichstag was set on fire.  The Communists were supposedly to blame, but many assume that the Nazis were the real culprits.  The ultimate consequence of the fire was that Hitler had convinced President Hindenburg to issue a decree that gave the government emergency powers and suspended the basic rights of all citizens including freedom of speech, assembly, the secrecy of postal and telephone correspondence and the inviolable sanctuary of the home.[10]  This decree provided the legal basis for the creation of a police state. 

The next step in Hitler’s “legal seizure” of power came on March 23, 1933.  The Nazis sought the passage of the Law to Remove the Distress of the People and the State, or the Enabling Acts, which would empower the government to dispense of the constitution for four years while it issued laws, unchecked, which would deal with the country’s problems.[11]  The Center Party’s vote solidified the Enabling Acts, and now the cabinet was given national lawmaking powers.  The four-year expiration date was irrelevant.[12]  Immediately thereafter the process of Gleichschaltung, the coordination of the German institutions with the Nazi party, led to a series of enactments further reducing the power of state governments.

Finally, on August 2, 1934, President Hindenburg died and three days later Hitler assumed the combined powers of Chancellor and President, consolidating them into the position of Führer.  In order to further enhance his power he required that the public officials and members of the armed forces swear a personal oath of loyalty not to their constitution, but to Hitler himself.  The Führer confidently proclaimed that the “German form of life is definitely determined for the next thousand years.”[13]

It was then that Hitler and the Nazi regime started to completely reform the legal system of Germany.  Upon inception the Nazis confronted a divided, politically weakened and economically desperate legal profession with no means to disagree.  Therefore, it was easy for regulation and reformation of the legal profession.  The Nazis proclaimed that the “profession of the attorney is not a trade but a service to the law”, requiring attorneys to raise the bar and respect the will of the Führer over the self-interest of their client.[14]  What were once innocent interactions between lawyers were now considered ethical breaches.  There were also numerous grounds for disbarment, including the failure to vote in elections, or having friendly relations or socializing with Jews.  The new regulations went so far as to say that an attorney whose client committed perjury or made slanderous statements or who filed a case which brought the Reich into disrepute was subject to disbarment as well as to criminal prosecution.[15]  The threat of retribution often deterred lawyers from involvement in politically sensitive cases.  In sum the sovereignty of the legal profession was lost as lawyers were absorbed into Nazi organizations and subjected to the supervision and stringency of the Nazi regime.  Ideological conformity was stressed as opposed to intellectual competence.  Duty was now defined as being a servant to the State and National Socialism.[16]  This obligation stretched much farther than just lawyers though.

Jurists were also targeted.  A series of notices, soon to be called Judges’ Letters began in circulation.  Their purpose was to instruct jurists to preserve the purity of the nation.  The Letters proved to be a successful effort in influencing judicial decision-making.  How much was voluntary is highly disputed though, because jurists were aware that their decisions were subjected to surveillance and scrutiny and that these letters would be distributed to their peers.[17]  Failure to comply with the Letters or their recommendations would surely lead to punishment.

In conjunction with regulating attorneys and jurists the Nazi party also felt the responsibility to police the judiciary.  The Ministry of Justice began to issue instructions to prosecutors concerning appropriate punishment for each case, which was then immediately relayed from the prosecutors to the judges.[18]  The judiciary merely accepted these persuasions, and acted accordingly.  Unfortunately the initial coordination between the executive and legislative branches wasn’t fully effective in regards to controversial verdicts.  In a fit of frustration Hitler announced to the Reichstag that he would directly intervene in the judicial process.  The Reichstag, not surprisingly, granted him this request stating that it was Hitler’s authority to “enforce, with all means which he may consider suitable, every German’s duties… in case violations of duties he has the right to impose the proper penance…  in particular, he may remove anyone from his office, rank and his position, without resort to the established procedures.”[19]  Judges were informed that their decisions were to be guided by ideology rather than legal doctrine, and that these decisions were to be clear, concise and uncomplicated.[20]  Their subservience to the Führer was once again reinforced.  His new political machine would be effective and efficient, especially in regards to National Socialism and racial purity.  Although this seemed satisfactory, as time progressed problems arose.

The requirement of reports and of court consultation exponentially increased the workload of judges prohibiting the aspiration to achieve a short and swift resolution of controversies.  In September of 1942 an effectual method of adjusting inadequate judicial sentences was fashioned.  The Reich Minister of Justice pledged to forward cases where lenient sentences had been imposed to the Reich Leader of the SS for special consideration, basically those individuals in question were to be submitted and subjected to demanding and deadly labor.[21]  Obviously the racial group hardest hit by this decree was the Jews, although it also encompassed the gypsies, Russians, Ukrainians and Poles.  The radical stance of the courtroom was soon to be expanded upon with the renovation and emergence of a new court system.

One of the first extraordinary courts created by the Nazis were the Special Courts.  The goal was to create an alternative judicial system that was free of the constraints imposed by conventional procedures and legal doctrines.  March 21, 1933 brought upon the decree establishing the Special Courts, were procedures were expedited, appeals were not provided and the courts were authorized to exclude evidence that was not considered “essential” for determining the outcome of the trial.[22]  The Special Courts were given jurisdiction over an array of wartime crimes including, the making of deliberately false or grossly distorted statements that compromised the integrity of the Reich, crimes against wartime economy and listening to and spreading international radio broadcasts.  The courts were required to immediately impose punishment in instances where guilt was readily apparent, namely lengthy prison terms or death.[23]  The efficiency of the Special Courts necessitated their expansion.  In 1943, The Reich Minister of Justice observed that the Special Courts now heard virtually all important criminal cases.  Basically speaking, anyone convicted of a criminal case was sent to a court that never allowed appeal, found minimal individuals innocent and were encouraged to dole out death penalties to those found guilty.  The emergence of new courts did not stop here.

The most infamous institutional creation was established in April 24, 1934 and named the People’s Court.  This court was envisioned to replace the Supreme Court and the first and last resort in treason trials.  Each hearing sat five members, each appointed for five years by Hitler.  Politics rather than law, with the main goal to eliminate opposition to National Socialism, blatantly guided the court.  In 1941 the People’s Court delivered death sentences to ten percent of the defendants with the figures culminating between 1942 and 1944 when it rose to forty percent, approximately 12, 891 death sentences.[24]

The Prevention of Progeny With Hereditary Diseases law of 1933 stipulated that those afflicted with hereditary diseases were to be sterilized.  These diseases included imbecility, schizophrenia, psychosis, epilepsy, deafness, physical malformation and alcoholism.  The individual could submit recommendations for sterility unless the person was a minor or incompetent, in which case the responsibility fell upon a legal representative.  Once approved the operation was to be performed, regardless of the person’s wishes.  The process was obviously objective, and those who showed moral faults or poor social attitudes during screening were condemned to sterility.  Even if they did pass, those who were sexually active, unemployed or poorly educated could still be deemed “feeble-minded” or “schizophrenic”.[25]  Sterilization was ordered in over ninety percent of the cases resulting in between 320, 000 and 350, 000 people, or 0.5% of the population incurring sterilization.[26]  Although these actions are atrocious the courts of the occupied eastern territories were even harsher.

The Special Courts established in the occupied territories were responsible for applying the German law, along with special regulations imposing the death penalty, for a range of offenses considered insubordinate to Germany and her cause.  Germans viewed Jews and Poles as less sensitive, due to their inferiority, which consequently led the courts to increase the severity of their punishment.  As previously stated, the death penalty was widely imposed, however prosecution was not mandatory, proceedings were dispensed or modified whenever rapid and efficient prosecution was necessary and sentences were to be carried out immediately.[27]  In 1941 the Reich adopted the secret Night and Fog Decree, which provided that the death penalty should ordinarily be imposed in the case of criminal acts committed by non-German civilians, which were directed against the Reich or the occupation forces.[28]  The proceedings were to either be held in the occupied territories, or the defendants had the option of being transported back to Germany for prosecution.  Defense counsel was not provided, and those that were acquitted, or had already served their sentence were then handed over to the Secret State Police for detention for the duration of the war.  Even an innocent verdict would lead an individual to be sentenced to their death in a labor camp while under “SS supervision” until the war’s termination.  The secrecy surrounding the process succeeded in deterring opposition and terrorizing the victim’s relatives and friends.  Defendants were arrested, abused, secretly transported to Germany, held incommunicado, denied the opportunity to introduce evidence and refused counsel of their choice or, in many cases denied counsel all together.[29]  There was no legality or ethics present in these courts.  There was only one rule, that of the Führer.

Hitler had succeeded in becoming the Supreme Lord of the Law.  Everyone swore an oath of loyalty to him, not the constitution or to legality.  Hitler’s rule mandated the judges; jurors and attorneys to become his lemmings and those that refused were subject to removal.  The purpose of the criminal law was to protect the state against the citizen rather than to safeguard the citizen’s integrity, to punish and discourage criminal conduct and to eliminate those who posed a threat to the state.[30]  Legal presumptions were utilized to convert rather unassuming infractions into acts of treason, therefore punishable by death.  In hindsight the question that remains is how could persons committed to the rule of law, inundated with the fundamental notions of equality, justice and due process become active participants in such a regime?

In Hitler’s Justice, a book by Ingo Muller, Muller argues that the extent of active resistance was dismally small and that many jurists were active collaborators in the regime.[31]  Muller discloses a world where euthanasia and sterilization are legalized, concentration camps are created, political opposition is crushed, racism runs rampant and Jews are labeled as civilly-dead; and no one utters a word of protest as the laws are routinely and unemotionally applied.[32]  The most astonishing fact of the aforementioned actions is that they were not implemented through sheer force, but through legal statutes and regulations.  In the eyes of the law, Hitler was completely innocent and justified.

That was the fundamental difference between Hitler’s two attempts to gain control over the government.  The use of raw power and emotion hypnotized a large group of Germans.  The romantic ideals of fighting for national pride and honor are enough to motivate any individual.  However when push came to shove, that mass was a mere minority and local notoriety was no match against the law.  National prestige could only be attained when competition was eliminated.  In Germany there were two sources of rivalry, the Reichstag and the constitution.  With the legal passage of the Enabling Act Hitler tactfully abolished all opposition and lawfully acquired solitary control over Germany.  With time he transformed the legal system into an expedient “racial cleansing machine”, successfully eliminating millions of people, by diluting the barriers of law to extinction.


Works Cited

 

Botwinick, Rita Steinhardt.  A History of the Holocaust.  New Jersey:  Prentice Hall, 2001.

 

Breitowitz, Yitzchok. “Book Review.”  Review of Hitler’s Justice: The Courts of the Third Reich, by Ingo Muller.  Harvard University Press, 1991.

 

Lippman, Matthew.  “Law, Lawyers, and Legality in the Third Reich:  The Perversion of Principle and Professionalism.”  Temple International and Comparative Law Journal  (Fall 1997):  p.1-48.

 

Rosenberg, Jennifer.  “Hitler’s Beer Hall Putsch.”  http://history1900s.about.com/library/holocaust/aa101397.htm  (7 March 2003)

 

Spielvogel, Jackson.  Western Civilization Fifth Edition.  St. Paul, MN:  West Publishing Co., 2003.



[1] Rita Steinhardt Botwinick.  A History of the Holocaust.  New Jersey:  Prentice Hall, 2001; p.59

[2] Botwinick, p.60

[3] Botwinick, p.60

[4] Jennifer Rosenberg.  “Hitler’s Beer Hall Putsch.”  http://history1900s.about.com/library/holocaust/aa101397.htm  (7 March 2003)

[5] Botwinick, p. 61

[6] Rosenberg

[7] Botwinick, p. 61

[8] Jackson Spielvogel.  Western Civilization Fifth Edition.  St. Paul, MN:  West Publishing Co., 2003; p.796

[9] Spielvogel, p.796

[10] Matthew Lippman.  “Law, Lawyers, and Legality in the Third Reich:  The Perversion of Principle and Professionalism.”  Temple International and Comparative Law Journal  (Fall 1997):  5

[11] Spielvogel, p.797

[12] Botwinick, p.96

[13] Lippman, p.7

[14] Lippman, p.11

[15] Lippman, p.13

[16] Lippman, p.14

[17] Lippman, p.21

[18] Lippman, p.18

[19] Lippman, p.18

[20] Lippman, p.22

[21] Lippman, p.19

[22] Lippman, p.23

[23] Lippman, p.23

[24] Lippman, p.25

[25] Lippman, p.27

[26] Lippman, p.28

[27] Lippman, p.29

[28] Lippman, p.30

[29] Lippman, p.31

[30] Lippman, p.33

[31] Yitzchok Breitowitz. “Book Review.”  Review of Hitler’s Justice: The Courts of the Third Reich, by Ingo Muller.  Harvard University Press, 1991, p.1

[32] Breitowitz, p.2