Faculty of Law, University of Oslo, Oslo, Norway
Acceptance of the Legality of Authoritarian Regimes
What do judges do, what can they do, and what should they do when authoritarian rulers call upon them to employ and enforce means of oppression and to lend legitimacy to the oppression? According to the ideals of the rule of law, they should hold stand, defend their independence, and protect the basic rights of individuals. Experience from history teaches that this is, unfortunately, the exception rather than the rule.
Courts often accept the legality of new authoritarian regimes. It is a basic realist fact that a regime established by force can only be effectively challenged by a stronger force; no judicial dictum can prevail against it.1 Tayyab Mahmud concludes in his study of all postcolonial common law cases dealing with the aftermath of coups d’état up to 1994 that “most courts have opted for the worst choice, namely, validation and legitimation of extra-constitutional usurpation”.2 As Mahmud points out, the options facing the courts when confronted with rulers who depart from the established procedural and substantive requirements of legality are not many. They may choose to validate the new rule, they may stick to the established constitutional arrangement and invalidate it after performing judicial review, they may resign their office, or they may declare that ruling on the legality of the new regime is outside of the scope of judicial powers.
It appears that rulers may, in general, depend upon judges not challenging the core interests of the regime. This in itself is important and means that authoritarian rulers receive legitimation from the courts. As pointed out by the Truth and Reconciliation commissions of Chile and South Africa, this support is all the more valuable when it comes from courts that have a standing from previous liberal times as independent guardians of the law. One must not underrate the value to an authoritarian regime of even passive support in the form of omission of effective judicial review. In a situation where the regime actively attacks the rule of law and established legal principles, omission of defence by the courts, who are the very guardians of these values, amounts to positive support of the policies of the regime.
In his survey, Mahmud is dealing with coups d’état, that is, radical regime changes that take place outside of the rules established for power successions. In such cases, the new regime cannot derive its formal legitimacy from the established positive rules of the constitution. It must seek to legitimise itself through emergency rules, through the necessity of the situation, or through the established fact of effective control over the state apparatus. As the experience from the transition in Germany into Nazi rule shows, there is a gradual line from instances when an established regime resorts to authoritarian measures by invoking emergency measures to instances of total revolution.
In the last years of the Weimar Republic, the German Parliament was, to a large extent, bypassed and the country was ruled by emergency legislation enacted by the Reichspresident von Hindenburg. Many of the civil and political rights of the constitution were suspended under this legislation. When Hitler came to power, it was by similar measures passed by Hindenburg. The basic powers of the Nazi government in the enabling law of 22 March 1933, which passed legislative powers directly to Adolf Hitler, including the power to change the constitution, were formally based in the Weimar Constitution. On the other hand, Nazi lawyers immediately started to treat the Nazi takeover as a revolution with its own legal basis as a successor to, and therefore not based on, the Weimar Constitution.3
The blurred lines between continuance and break with the established legal regime can also be seen in the Latin American experiences. Despite the similarities between the social and political facts in Argentina, Brazil, and Chile, the authoritarian regimes portrayed their relationships to the existing constitution differently.4 In Argentina, the generals derived their authority from the constitution and its provisions for a state of emergency. They did not proclaim their rule as revolutionary, declaring that all previous legislation remained in force to the extent that it had not been specifically repealed by the new regime. The Brazilian armed forces proclaimed their role as revolutionary and the role of the courts as the advancement of revolutionary legality. They portrayed the revolution as self-justifying and owing no duties to the previously valid constitution. In Chile, the Junta seized power in the name of the rule of law, claiming to re-establish this after the violations of the rule of law that they ascribed to the previous regime.5
Whether there is a change in regime or not, and whether such a change openly portrays itself as a coup, the courts are faced with the question of whether to accept or reject authoritarian measures that break with civil or political rights of established constitutional principles. Under liberal constitutions, there are strict limits for such departures from recognised rights. Normally, individual rights can only be limited under requirements of necessity and proportionality, and under the supervision of judicial review. In many cases, there are absolute limits in the form of rights from which there is no derogation, such as the prohibition against torture.
In all cases where the regime claims to be unbound by the ordinary limits of the constitution, it must support its claim on reasons external to the constitution—whether these are reasons of fact, such as necessity, or reasons of principles that are seen as overriding the positive constitutional norms. Only a few courts have taken the high road of strict constitutionalism and actively challenged the legality of successful coups. In “dozens of authoritarian states”, we can observe what Ginsburg and Moustafa name “core compliance” with regime interests by the judiciary.6 This was the fact in Germany, Argentina, and Chile. The courts in Argentina never directly addressed the core questions of the legality of the military regime.7 In habeas corpus cases that were brought to the Supreme Court, the Court required that the regime provide specific evidence of the arrest so that it could review the grounds. But in most cases when the regime refused to do this, the Court did not respond with ordering the release of the prisoner.8 In Germany, the courts never questioned the legality of the Nazi takeover of power, of the emergency laws or of the powers exercised under these powers.9 On the contrary, the right to judicial review, recognised under the Weimar Republic, was explicitly dismantled through arguments in the legal doctrine and by decisions of the courts. Studies of the contemporary legal literature show a distinct positive approach to the concept of dictatorship during the preceding period of the Weimar Republic and an untroubled attitude towards it.10 To many judges, the Nazi takeover was nothing more dramatic than the transition from dictatorial rule to slightly more dictatorial rule.
The Supreme Court of Brazil did review the legality of measures by the Junta and sometimes repudiated them. The same was the case with the Appellate Division of the South African Supreme Court, which initially refused to accept as constitutional legislative measures to disenfranchise coloured voters of the Cape of Good Hope.11 The legality of this Act was only accepted by the Court after two litigations, a change of the constitutional law and a packing of the Court with additional judges who were sympathetic to the government. Also in the cases reviewed by Mustafa on coups d’état in postcolonial common law countries, there are some examples of courts refusing to accept the legality of the coups. One of them is the decision by the Privy Council of Great Britain on the proclamation of the Smith government of Rhodesia.12 In this case, however, we are dealing with a court based firmly on the constitution that was rebelled against and that could review the legality of the revolution from a safe distance being based in London. The others are instances where the courts have ruled after the coups have been defeated and the old order re-established. This leaves then only Brazil and South Africa as cases of some measure of judicial resistance to authoritarian rule.
Even courts in states occupied by foreign forces often bend to the force of the situation and lend legitimacy to the oppressive means of the occupier. The options outlined by Mahmud for coup situations are the same even for courts when the country is under occupation of a foreign power. Experiences from the German occupation of European states during World War II display courts that comply, protest, resign, or define the occupation regime outside the scope of their jurisdiction. The courts of Denmark and the Netherlands basically complied with the core interests of the German occupier and applied oppressive laws passed in the interest of the occupier. The Norwegian Supreme Court reserved the right to review the legality of the measures of the German occupation authority and resigned when they were denied this possibility. The Belgian courts regarded the occupation measures as outside of their competence and refused to apply them as law.
The Supreme Court of the Netherlands never questioned the legality of the measures taken by the German occupying authority or the measures by the Netherlands’ authorities under powers delegated by the Germans, and it was mostly followed by judges in the other courts. This even led to the Nazis being able to use the Netherland courts to implement their measures against Jews.13 The judges appointed during the occupation accepted taking an oath of allegiance to “the laws in force on the occupied Netherlands territory”, which clearly included the measures of the occupying force.14 The Supreme Court defended its position by reference to the rights of an occupier under public international law and that “it was customary that judicial officials would fulfil their duties in the interest of their country, as long as sufficient independence was left to them and they were not forced to dispense justice in the name of another sovereign”.15
In Denmark, the courts cooperated with the efforts of the government to keep the administration of internal affairs in Danish hands. There was no change in the Danish government with the German occupation, and, unlike in many of the other occupied countries, the established government or the head of state did not go into exile. One of the overriding considerations of the government in the field of administration of justice was to maintain jurisdiction over Danish citizens for the Danish police and courts. In order to achieve this, the government enacted oppressive reforms of the criminal law and the criminal procedure in order to accommodate German demands. The Danish courts followed a strict line in the application of these laws imposing strict punishment.16
One notable example is the case against a Danish officer who had been arrested in Berlin in 1940 for attempting to persuade Danish pilots to enter the war on the side of the British. The Danish authorities negotiated with the Germans to have him extradited to Denmark. The German authorities set as a condition for extradition that he could be sentenced to a punishment no less than life imprisonment. This was not possible under Danish law, but Parliament passed a law in January 1941 that criminalised aid to enemy forces with a maximum punishment of life imprisonment. The officer was returned to Denmark the same day and shortly afterwards was convicted and sentenced to imprisonment for life by the Copenhagen City Court.17
Political rights of freedom of speech and freedom of assembly were also severely restricted and violations of the restrictions criminalised. One of the most controversial measures was the internment of all known members of the Communist Party after the German attack on the Soviet Union on 22 June 1941. The Supreme Court upheld the detention of the communists based on a law passed retroactively in August 1941 as constitutional without entering into argument or giving any reasons.18 Tamm explains the decision of the Court as that it could not be expected that the Supreme Court should reject the policy of negotiations with the Germans that the government and Parliament had committed to. To this it could be countered that the role of the courts is precisely to draw the limits to policy and not to enter into such policy.
As long as judges are independent in a narrow sense, that is they are not specifically ordered as to how to decide an individual case, the regime depends on the reasoning and choices of the individual judge. Although causes and motives for judicial choice may vary, judicial decisions are most often framed as legal. Judges portray their decisions as compulsive according to the law, whether they support or challenge the regime, and the legal reasoning that they employ is often beyond reproach seen from a methodological point of view. Judges in authoritarian settings use the same forms of legal reasoning as judges in liberal and democratic settings.
When faced with measures that attack fundamental legal rules and values, the judge has basically two choices: he can follow the law and overrule the measure, or he can depart from the law and accept it. Often, following the law also implies making choices since the law is not always settled. These choices may be choices of evaluation in determining the best possible interpretation of the law or the fact or choices of policy in deciding which rule to establish.19 The judge often has a certain scope of action in the establishment and interpretation of the law. Based on studies of the South African courts under apartheid, Dyzenhaus draws a distinction between a “plain fact approach” and a “common law approach” to legal interpretation.20 In the plain fact approach, law is applied as it exists and not according to what morality requires. The judge “looks to a pattern that exists as a matter of historical fact in the legal acts and decisions of the past, mainly those of the legislator”. In the “common law approach”, the interpretative context and not the intent of the historical content is the “master over legal meaning”. In the plain fact approach, principles embedded in common law, such as equality and rule of law, have to yield to the clear discriminatory intent of the apartheid legislator. This was the approach used by the majority of the South African judges. The approach enabled them to uphold and even extend the authoritarian measures of the regime and disregard the protection of individual rights and liberty traditionally entailed in the common law. Judges who employed the common law approach could and would question oppressive measures and interpret them narrowly. This approach was therefore a way of balancing the dual loyalties of the judge to both the underlying fundamental legal values and to the positive legal demands of the regime.
A similar balancing was performed by the Supreme Court of Argentina. The Supreme Court of Brazil, on the other hand, went further and, in some cases, even refused to give effect to positive legal measures by invalidating them based on uncodified legal principles of natural law. Osiel explains the differences in the approaches of the two courts in their social setting and the differences in the relationships between the judiciary and the ruling establishment in the two countries.
The Supreme Court in Argentina operated in a common jurisprudential framework with the Junta, that of legal realism. It directed its legal reasoning to the Junta, and in cases where measures of the regime were reviewed, the review was performed by adherence to standards shared by the regime. The Argentine Supreme Court thus was in a judicial dialogue with the dictators. The Supreme Court of Brazil, on the other hand, employed standards other than the ones employed by the regime. Where the regime enacted positive law, the Court drew on naturalist arguments. The decisions of the Supreme Court of Brazil do therefore not evidence the same sense of shared membership of a common legal culture with the Junta as the decisions of the Argentine court do. In this respect, Brazilian judges were like the common law judges of South Africa. In their willingness to invalidate positive law, the Brazilian judges, however, went even further than their South African colleagues. The Brazilian judges did not engage much in dialogue with the regime. Their arguments, according to Osiel, were directed more to the public and civilian professional figures and to the wider legal community.21
The reasons for these differences in choice of audiences may be differences in political sympathy. The judges of Argentina were more sympathetic of the military regime, whereas the judges of Brazil were more unsympathetic. On the other hand, this may only have been at the superficial level. According to Pereira, organisational relations between the military and the judiciary were much closer in Brazil than in Argentina and Chile, and in Brazil there were several leading members of the legal profession who provided links between the legal profession and the military.22 It could therefore also be that in Brazil there was more room for a broader legal debate on the workings of the regime, whereas the role of the judges was more marginal and precarious in Argentine, thus forcing them into operating on the premises established by the regime.
This hypothesis also accords with the study by Pereira of the military courts in Argentina and Brazil. The Brazilian government utilised established military courts with long-standing and good relations between the judges and the military. In Argentina, new courts were established. In Brazil, the government used the military courts as an active instrument in their oppression and the courts operated in a relatively independent fashion with a relatively high rate of acquittal and with relatively lenient punishments. In Argentina, most of the repression was undertaken outside of the scope of the law by military and extra-military death squads.
Judges are bound by an obligation to apply the law. After all, legal reasoning differs from general moral or political reasoning in that it relies on authoritative legal sources provided by the state. No matter what approach to legal theory one takes, one cannot totally disregard such sources and still practice law. This means that when the authority in power is established and oppressive measures are enacted as legislation, oppressive measures will be included among the sources that at least prima facie count as authoritative to the judge. So both the judicial role and basic power relations contribute to the fact that courts seldom challenge the core interests of the regime such as its basic legality and main instruments of power.
Acceptance of Oppressive Aims and Policies
That the courts have to give way to overwhelming force is hardly surprising. It is more critical to the function of the judges that they, in many cases, seem to give active support to the new regimes and their authoritarian measures. Judges are members of the social elites in a society, and in many cases authoritarian rulers draw upon these elites for support for their policies. The judiciaries of Argentina, Brazil, and Chile, for instance, were quite receptive to the arguments by the military coup makers for the need for authoritarian rule to protect society from “subversive” elements. The German judges in 1933 were, as many of their colleagues among the academic lawyers, critical of the Weimar Republic and saw the Nazi regime as a way to re-establish the old order. In Vichy France, the prewar anti-Semitic propaganda paved the way for the anti-Semitic laws. The South African judges accepted the arguments of the government and its strict measures on security legislation. That judges defer to authoritarian power may therefore be not only a question of might influencing right.
Otto Kirchheimer claims that courts and juries generally tend to follow the line of the government as the presumed expert in the field of subversion and that they often even outbid the government as a custodian of state protection.23 In his study on judges and evil, Douglas Linder states:
‘The strange interdependence of thoughtlessness and evil’ that Arendt observed in Jerusalem underlies many of the injustices that have dishonored the American legal system in recent years. Overidentification with popular causes of the day and immersion in professional legal culture has blinded many of the key players in our justice system to the human consequences of their decisions. Bureaucratic thinking has enabled people who should know better to conclude that they are mere functionaries who, if they did not do what they did, would watch as others carried out the same injustices. Arendt concluded, from the Eichman trial, that ‘remoteness from reality and thoughtlessness can wreak more havoc than all the evil instincts taken together.’ So, also, we might conclude today.24
In some cases, the judiciary actually takes the lead in developing oppressive law. Illustrative examples are the role of the Nazi judiciary in developing the legal category of “Jew” and giving this effect in different fields of law, such as family law, labour law, and the law of contracts, and the role of the South African judiciary in developing racial segregation and security law. In such cases, we are no longer faced with a judiciary forced to comply but with judges taking a primary role in undermining the rule of law through an over-identification, with the aims of the regime and a perception of their role as mere technical, legal.
In authoritarian and totalitarian settings where the legislature and the administration show no self-restraint, we can see tragic consequences when the oppressive ideology of the regime is shared by the judiciary. It can be claimed that the laws of “Nazi Germany did not fall fortuitously on unwilling or unwitting populations and judiciaries. The judiciaries applied laws which on the whole had met with judicial approval, just as the population followed laws which on the whole had met with popular approval”.25
The German judges of the first half of the twentieth century held the same resentments against homosexuals, persons alien to the German community, antisocials, and members of inferior races as the rest of the population.26 In Germany, there were elements of anti-Semitic sentiments in the courts even before the Nazi accession to power,27 and the courts had no difficulty in rapidly accepting and implementing this part of Nazi ideology. The effect of this was that the courts, in many ways, were forerunners to the legislator and the Nazi administration when it came to depriving Jews of rights and legal status in Germany. In this, the courts went beyond the mere acceptance of the legal basis of the Nazi regime and entered into the active advancement of the Nazi legal ideology.
The reform of German law in the first years after 1933 in the direction of a “Germanic renewal” was not first and foremost carried out by the legislator. Rüthers shows how this task was undertaken by the legal doctrine and the judiciary in close cooperation, where the tools and techniques for a legal reform were developed for a loyal transformation of the liberal legal order into an order of repression.28
Family law and the relationship between German and Jewish spouses are a field where the active role of the judiciary in developing anti-Semitic measures is very clear. The first of these cases was decided by the Supreme Court on 12 July 1934.29 The case concerned a married couple where the husband sought annulment of the marriage. The parties had married in August 1930 after having met during the summer of 1928. The husband was an Aryan, former priest, and now a student of medicine. The wife was a Jewess. The husband had applied for divorce already in the spring of 1931, but the application was rejected.
The husband’s application of 1931 was based on allegations that the wife was hysterical and that she had not fulfilled her promise of being able to support herself. The application that he now made was based on the rule of German marriage law in BGB § 1333, which stated that “A marriage can be challenged by the spouse who has been in error about the identity of the other spouse, or about such personal characteristics of the other spouse, which by reasonable consideration would have withheld him from the marriage, had they been known to him at the time of entering into the marriage”.30 The applicant was familiar with the fact that the parent of his spouse were Jews, but he claimed that he was in error of “such personal characteristics of the other spouse, which by reasonable consideration would have withheld him from the marriage”, since he had not realised the implications of the differences of race between the parties. He claimed that this realisation first came to him with the National Socialist revolution, which made the differences between the German and the Jewish races common knowledge.
The Supreme Court stated that a person’s race, in particular when it concerned a Jew, according to “a natural conception of life”, must be considered a “personal characteristic” in the meaning of the law. Since the racial traits also are inherited by the offspring of a married couple, this personal characteristic, according to the Court, must be of the kind that by reasonable consideration would have withheld the erring spouse from the marriage had it been known to him or her at the time.
The Court of Appeals had granted the husband an annulment of the marriage. The Court based the annulment on the fact that it “was just recently acknowledged that the Jewish race differs from the Aryan race totally in regards to blood, character and way of life” and that intermarriage is “not only undesirable, but also pernicious and unnatural”. The Supreme Court did not follow this line of reasoning, however, and denied annulment. In contemporary literature, this decision was therefore cited as an example where the courts resisted the political pressure to give legal effect to Nazi ideology.31 This is, in my opinion, misleading since the Supreme Court did accept the racial ideology of differences between Aryan and Jews as a matter of fact.
The Court did not distance itself from the characterisation of the undesirability of intermarriages. Rather, it reasoned that the importance of racial differences had been well known since the middle of the previous century and that at least since the publication of the party programme of the Nazi Party in February 1920, it would be difficult to claim unawareness of this fact. The condition that the personal characteristics of the spouse were unknown to the husband at the time of the marriage was therefore not met. Neither could the annulment be based on the fact that the husband at the time of the marriage could not know that he and his children would be subject to the Aryan legislation of the Nazi regime. This legislation was a later fact and could therefore not be said to be characteristics present in the spouse at the time of the marriage.
The Supreme Court recognised that the courts had to take into account the racial legislation of the present regime and stated this legislation as grounds for interpreting the BGB § 1333 to include race as a “personal characteristic”. But it continued, “The courts are not authorised to take the insights of National Socialism further than the limits that have been drawn by the legislation of the National Socialist state itself”. It pointed out that interracial marriages were not prohibited by law and that new marriages could not be annulled under BGB § 1333 by spouses who knowingly married a Jew. It also rejected the possibility of treating § 1333 as a general clause where the courts could develop the law in accordance with National Socialist thought. According to the law, § 1333 was one of a set of specified grounds for annulment and “the judges are presently as previously bound by the law”.
The Court in this case balanced loyalty to the ideas of the new regime, on one side, and the limits to judicial discretion set by the law, on the other. The racial ideology was accepted by the Court and even regarded as so evident that the Court rejected the husband’s claim that he could not have realised the importance of the differences in race prior to the Nazis’ accession to power. The grounds that the Court bases this statement on are rather shaky. It refers only to the public policy of the Nazi Party and makes no problem out of basing statements of fact on the programme of a political party. What the Court in fact demands is that the population in Germany prior to 1933 should have taken the programme of the Nazi Party as evidence of the biological facts of the existence of races and racial differences.
The reality, of course, is that racial differences were differences not in biological facts but in ideology, and as such the Nazi programme was sufficient basis for asserting this difference. But in this view, 1933 is a relevant turning point because the fact of these ideological differences was not established as compelling for the German population prior to the Nazi takeover of power. These differences between facts and ideology must have been evident also to the German Supreme Court in 1934. Why did it then engage in such obviously weak arguments?
One reason may be that the Court in this case perceived the husband’s claim as unreasonable. One may suspect that the Court judged the husband’s claims to be made on opportunistic grounds and that his real motives were to have a new go at divorcing his wife for the same reasons he had tried the last time. To avoid the annulment of the marriage, the Court either had to reject the notion that being a Jew was a personal characteristic in the meaning of the law or that this characteristic was unknown to the spouse at the time of marriage. The Court chose the latter. In not rejecting the former, the Court accepted the whole stock of racial ideology of the regime and welcomed it into the body of family law. The whole argumentation of the Supreme Court is based on the ideology of racial differences and of the social undesirability of intermarriages. It was precisely because of this being so obvious to all that the husband could not be heard with the claim that it had been unknown to him. Had it not been for the seriousness of the matter and the formal attitude of judges, one could be tempted to read the reasoning of the Court as ironic.
It is of course difficult to say whether the Court here is paying lip service to the regime or whether it is arguing out of sincere belief. The effect is in any case the same—that the courts have to take due account of the racial ideology of the regime when applying any part of the law. On the other hand, the Supreme Court also states and demonstrates that this duty to take the ideology into account is limited by law and by the established role of the courts. This underlines the fact that even if the courts are transforming the law into Nazi law, it is still law in the sense that it is applied independently by the courts according to familiar modes of legal reasoning.
Why did the Court not choose to reject the racial ideology and base its result on denying that race was a personal characteristic in the meaning of § 1333? Answering this question will inevitably be pure speculation. One factor may be the general perception of Jews at the time; the courts had a record of racial prejudice prior to 1933.32 Nevertheless, this was a creative interpretation of the law, with few practical consequences, since race as a ground for annulment would be unavailable to most due to the strict requirements that the Court placed on the ignorance of the other party. The interpretation was therefore not in any way necessary in order to establish a legal remedy for anyone. Another reason could be that denial of the racial ideology could have been seen more as a provocation of the regime, which perhaps the Court wished to avoid. In that case, the Court could be accused of sacrificing humanity and a basic requirement of the rule of law for the sake of its own standing in the new political order. In any case, the Court in its decision did not in any way protect the fundamental concept that “all men are created equal”.
By its decision, the Supreme Court accepted and endorsed the racial myth of National Socialism where purity of race is the foremost objective of legislation and of the new Germanic law, as opposed to the past Romanistic liberalism.33
A second case was decided by a different senate of the Supreme Court on the same day. In this case, the Court accepted that the complainant was not aware of the implications of marrying a Jew at the time of the marriage. Gradually, the fundamental differences of the spouses dawned on him and after some years, in 1926, he left his wife because he felt they had nothing in common was the argument of the husband. At this point, according to the Court, the consequences of their racial differences were obviously known to him. The legal issue then was whether the time limit of 6 months stipulated by the law to make a claim for annulment had expired. His realisation of the relevant facts happened in 1926, so the question was, what was the relevant starting point for calculation of the deadline? If the starting point was when he left his wife, it was obviously too late to claim annulment in 1933.
The Court referred to a provision in the BGB that stated that a deadline is suspended as long as “access to justice is hindered by circumstances outside of control of the party”. Commenting on this, the Court said that such a circumstance was present as long as there was no prospect of receiving an annulment by the courts. It declared that getting an annulment on the ground that the spouse was Jewish would have been unthinkable before the National Socialist revolution. This had changed with the Law for the Restoration of the Professional Civil Service of 7 April 1933, which represented a formal recognition by the state of the implications of race. From this date on, the deadline was no longer suspended and the complainant had 6 months to lodge his complaint.
In regarding the legal recognition of a right as a relevant removal of a hindrance to access to justice, the Court referred to a previous ruling of 1923 where a new precedent was given the same legal effect. One might question to what extent one can draw parallels between new legislation and court rulings. Where court rulings in their nature are retrospective, changes in legislation usually regulate future legal issues. The Court, however, does not comment on this difference. One may also question the way the Court accepted the claim of the husband that the personal estrangement of the parties was a consequence of their racial differences. This issue was decided by the Court of Appeals, and therefore not an issue before the Supreme Court, but it does show that the Court was ready not only to accept and apply Nazi racial ideology but also to treat is as self-evident. Or maybe the treating of it as self-evident and beyond question was a way of distancing itself from it and shoving the responsibility for it on the rulers of the state a sort of symbolic “washing of hands”?
In the next case, from 1935, we encounter a more aggressive Supreme Court. The applicant applied for divorce from his Jewish wife after joining the Nazi Party. The application was filed in December 1933. During the proceedings, in October 1934, he claimed that the marriage should be dissolved in accordance with BGB § 1333.
The Supreme Court referred to its rulings from 1934. It reaffirmed that intermarriages were undesirable and stated that “under a reasonable understanding of the nature of marriage as it appears to the worldview of National Socialism, mixed marriages are not allowed”. It is interesting to note that this opinion on the legality of intermarriages was stated 1 year before the consequence was drawn by the legislator in the infamous Nuremberg law on the protection of the German blood and honour.
The Court stated that the view taken by the Court previously, that the consequences of Jewishness must be held to be known by most after the party programme of the Nazis was published in 1920, had been challenged by lower courts and in doctrine and could not be upheld. Even though the racial question had been recognised in society prior to the National Socialist revolution, Jewishness was by most perceived as a religious issue and not as a racial problem. The Court also asserted that in the political debates and campaigns against the Nazis, their racial programme in particular had met the strongest opposition and had been under attack from all other political factions. Under such conditions, it could not be expected of people in general that they realised the importance of the racial issue before the takeover. The relevant cut-off date was set to the date of the Law for the Restoration of the Professional Civil Service when the racial question was given official recognition by the state.
This in itself did not solve the case in favour of the applicant since he had not claimed annulment before October 1934, well after the expiration of the 6-month deadline. Creative reasoning of the Court came to his aid. Foremost, the Court stated that when proceedings for a divorce have been brought, new legal grounds for a divorce may be introduced into the case. This must also be applied when new legal grounds to dissolve the marriage are introduced. Since the claimant had brought divorce proceedings in December 1933, this date, and not October 1934 when he made the claim for annulment, should be regarded as the date when the claim was brought to the Court.
But this was also too late to meet the deadline. The Court reaffirmed the approach taken in the second of the 1934 cases that the deadline was suspended as long as there was an obstacle to the claiming of the right. It then pointed to the fact that the applicant had launched an application for legal aid in August 1933 and that he had filed for the divorce immediately after having been granted legal aid. Since he did not have the means to file for a divorce before he had been granted legal aid, the deadline in his case did not expire until his application was granted. The reason he did not file within the October 1933 deadline was that the authorities had not yet responded to his application for legal aid, and he should not be blamed for this.
The cases we have just been through illustrate how national socialist ideology of race was regarded as a source for legal reasoning with authority to support a reinterpretation and development of the law, thus reaching results conforming to the Nazi ideology without formally disregarding the law. In all these cases, the Supreme Court demonstrated that it did not consider itself bound by the original meaning or the intent of the legislator of the existing provisions of family law. All cases concerned the “old” legislator. Then what about its loyalty to the legislator when it came to “new” law?
The cases from the Supreme Court on the Nuremberg laws of 1935 to protect the German blood and honour are telling. In its case law, the Court went far beyond both the wording of the Act and the legislative intent in order to criminalise relations between Jews and Aryans. The Supreme Court turned what, from the legislator, was enacted as a measure of racial hygiene into an instrument of general racial policy.34 A case from 1938 exemplifies the relationship between legislative intent and Nazi ideology. In this case, a spouse filed for annulment with the argument that one of the grandparents of the other spouse was Jewish. The application was rejected by the appeals court because marriage between two people where one of them had a Jewish grandparent was not forbidden by the 1935 law for protection of the German blood and honour. The Supreme Court, however, rejected this argument:
It does not follow from the fact that the blood protection act does not forbid marriages that such marriages are straightforward from a racial point of view, and it does not follow that a German-blooded person might not want to abstain from entering into such a marriage… Even though the law itself does not regard the disadvantages of such marriages as great enough to outright prohibit them, a person conscious of the National Socialist understanding of the racial differences might be deterred from it out of consideration to the mother and the child should the marriage result in pregnancy.35
A different approach could has been to refer to the line drawn in the legislation and regard this as a limit to when parentage could be regarded as a “personal characteristic” in the meaning of BGB § 1333. Here, however, the Court appealed to the arguments behind the law to interpret the law in an expansive way to give better effect to these arguments. As such, the case is an example of a teleological approach to legislation, based on the objectives or purposes that the legislator aimed to pursue with the legislation.
In a case of June 27, 1937, the defendant had received all copyrights to a manuscript—“in particular the film rights”—from the applicant according to a contract agreed on February 24.36 In addition, she received the services of director Ch. For this, she agreed to pay 130,000 Reichsmarks, payable in instalments. The first instalment was paid on March 1. On April 5, she withdrew from the contract and claimed refund of her payment on the ground that Ch. was Jewish and therefore no longer allowed under German law to contribute to films aimed at the German public.
The legal issue of the case concerned the interpretation of clause 6 of the agreement, which gave the complainant right to withdraw from the contract “should it become impossible to fulfil the contract because Ch. due to death, illness or similar circumstances is unable to direct the movie”.
The trial court solved the case in favour of the complainant. It argued that the clause “due to death, illness or similar circumstances” must be interpreted as to include all circumstances connected with the person of the director, not only physical or mental incapacity. Further, it held that “unable” included not only physical inability to direct the film but also inability to fulfil the assignment according to the intentions of the contract, i.e. produce a film showable to the German public.
The trial court here reasons in a traditional way. The issue is which party should bear the risk for the altered circumstances based on an interpretation of the parties’ contract. One could, of course, question whether the new evaluation of the implications of race should be regarded as a condition of the person or as a changed social condition and that the issue should have been framed as an issue of which of the parties should bear the risk of new public regulations. We can see already how the court accepted the racial ideology in regarding “Jewishness” as a personal disability from the fact that this was not raised in the case.
The Supreme Court went even further in its reasoning. Concurring with the result and reasoning of the trial court, it added that the result could be supported by the fact that “since the National Socialist takeover the scope of power and privileges of the person is linked with race”. Referring to historical times, the court stated that “the deprivation of all rights was likened to physical death, because the legal personality was completely destroyed”. Based on this, the Court stated that it was straightforward to state that the director was unable to perform due to circumstances similar to death or illness.
The additional reasoning of the Supreme Court was not strictly necessary to decide the case in favour of the complainant. As we have seen, the legal issue in the case was a familiar one, that is, one of the allocation of risks between the parties due to changing circumstances. The weak point, however, of the reasoning of the trial court was why the new situation regarding Jews should be seen as circumstances related to the person and not as changed social or regulatory circumstances. It is obviously this hole the Supreme Court aims to fill by its supplemental reason. And in filling this hole, the court likens the situation of the Jews to their physical death and describes their situation after March 1933 as deprived of all rights with destroyed legal personalities.
It is remarkable that the Supreme Court took this approach in June 1936. In handling the racial legislation, the courts could have taken two alternative approaches: they could see the new legislation as specific limits to the rights of the Jews, or they could see them as instances of a new legal situation where the Jews were deprived of their legal personality. The case is an indication that the latter approach was firmly established in the Supreme Court by 1936. This means that the Supreme Court not only implemented and applied a legislative programme to ostracise the Jews but that it itself took a leading role in developing the law into an instrument of exclusion.37