The Law Under the Swastika by Michael Stolleis

Author:Michael Stolleis [Stolleis, Michael]
Language: eng
Format: epub
Tags: History, Europe, Germany, Law, Administrative Law, Legal History, Perspectives on Law
ISBN: 0226775259
Amazon: B00EKCIWV8
Publisher: University of Chicago Press
Published: 1997-12-30T16:00:00+00:00

NINE

“Harsh but Just”: Military Justice in the Service of National Socialism

I. Military justice during the Nazi period was hardly discussed in Germany in the first decades after 1945. The interest of the public and of historians was focused on the Holocaust and “normal” criminal law, especially its function as an instrument of political oppression. Military justice remained in the shadows, so to speak.

The history of scholarly work on this topic began in 1959 with a sketch by the Marburg criminal lawyer and former military judge Erich Schwinge.1 His essay set the tone for a research project planned by the Institute for Contemporary History in Munich, before the project even got off the ground. In 1962 the project director, the former Reichsgerichtsrat and later President of the Federal High Court, Hermann Weinkauff, asked Otto Peter Schweling, a former military judge and then senior public prosecutor at the Federal High Court, to write a history of military justice. The study was to be published as part of a comprehensive series entitled “The German Judicial System and National Socialism.” In the end, however, the book was not published in this series.

Weinkauff had written the introductory volume to this series, in collaboration with A. Wagner. In it Weinkauff, an active representative of the “renaissance of natural law,”2 had anticipated the results of the research project, which was still in its planning stage. Weinkauff combined the dubious advantage of having “been there” with a subjective interpretation that was also based on generational sentiment and his own life experiences. As a result he superimposed upon historical objectivity a pedagogical impulse, his opposition to legal positivism, and the real argument behind his interpretation: namely, that the German legal system was better than its reputation and had been the true victim of National Socialism.

The second volume of the project showed the same tendencies,3 though it was little more than a collection of material organized according to an anachronistic scheme derived from the Basic Law of the Federal Republic. By contrast, the third volume, W. Wagner’s Der Volksgerichtshof (The People’s Court [1974]), was substantially better. Most of all, Wagner did not impose a hasty interpretation on the richly documented material. That would have been easy to do since an account of the People’s Court could not possibly have had any apologetic intent.

The hope that the scholarship of this project would show a growing professionalization and historicization would have been dashed if Schweling’s volume had been published as part of the series. It is clear that the institute’s decisionmaking process was unusually long and unpleasant for the author. However, it was a positive sign that the institute did not give in to the massive pressure from the editor, Schwinge. Had it published the book, the institute would have destroyed much of the reputation it had built through careful work of impeccable scholarship.

The story of how this book came to be written is bizarre in itself. Members of the Association of Former Military Judges met in Marburg on May 8–9, 1965, to support the project by gathering and coordinating material.

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