(originally published by H-German on 3 July 1996)
Kenneth Ledford presents in this concise and carefully-reasoned article some of the findings of his dissertation, scheduled for publication by Cambridge University Press this year under the title From General Estate to Special Interest: German Lawyers, 1878-1933. The focus here is on a "series of serious political defeats at the hands of the Weimar state, which further weakened [German lawyers'] already attenuated commitment to it." (p. 319) Since the history of the German bar under the German Empire had been notable for setting attorneys free from previous state tutelage and for the high degree of interface between bar and political liberalism, the fate of the profession after 1918 has implications more significant than that of many other occupations further from the loci of state power.
Ledford examines five episodes of interaction between the organized legal profession and government between the end of World War I and the National Socialist seizure of power. Each one, in Ledford's view, illustrated an "increasing loss of political influence by German lawyers."
The first episode involved a debate about mandatory retirement insurance between 1922 and 1926. The German Bar Association (Deutscher Anwaltverein) and its local affiliates had voluntary retirement funds and had discussed establishing mandatory but self-administered ones before the end of the First World War. Indeed the DAV initiated the idea of a state-sanctioned mandatory retirement system itself in the wake of the unsettling 1923 inflation, although many members still had reservations, usually in the form of resistance to increased state involvement in any aspect of the legal profession's autonomy. By the time of the stabilization period (1926) many local affiliates had changed their mind about a state-supervised mandatory retirement system.
The second episode involved the expansion of the industrial courts (Gewerbegerichte) first created by the Reichstag in 1890 into labor courts (Arbeitsgerichte) with jurisdiction encompassing all labor disputes after 1918. Attorneys and the DAV were understandably opposed to this expansion, since the labor courts excluded representation of parties by lawyers in the interest of simple and rapid proceedings. Since the labor movement and SPD were especially keen on the expansion, Ledford suggests further alienation of lawyers from the political left, although he notes they also denounced other parties for failing to block the final passage of the labor court law in 1926.
A third issue was that of "simultaneous admission." Although in many smaller German states lawyers could appear before courts at all levels, in some (such as Prussia and Bavaria) they were limited in their "admission": district court lawyers, most problematically, were not allowed to plead before higher (superior and appeals) courts, which had their own resident "admitted" attorneys. Inflation exacerbated the problem, since the choice of a court for civil cases depended primarily on the monetary value of the object in dispute. Although this issue provided infighting over markets within the DAV before World War I, it led to a deepening split during and after the Great Inflation. In Ledford's view, the superior court lawyers ultimately lost this battle, and were left "resentful and alienated from the republican state that had turned its back on them," even after they had flirted with the DNVP to gain parliamentary allies. And both sides had "resorted to state action when the institutional structure of their profession proved incapable of resolving the conflict of interest...." (p. 339)
The fourth episode involved threats by governments strapped for cash to extend the trade tax (Gewerbesteuer) to lawyers and other "free professionals." These threats died down during the period of economic stabilization but returned again at the onset of the Great Depression. Despite legal challenges, extension of the trade tax was upheld in Prussia in 1932 and by that time was the norm for most lawyers practicing in other states, as well.
The final episode investigated by Ledford is that of numerus clausus, regulation of the "supply" of attorneys to the professional market so as to reduce the problem of overcrowding. The DAV since its inception had opposed government regulation of the number of attorneys on both ideological and free-market grounds. The economic dislocations and swelling numbers after 1918 caused many lawyers to revise their view, but the DAV leadership clung to the old idea of freie Advokatur. Gradually, as younger (and economically more vulnerable) members gained power in the DAV, the organization began to advocate certain restrictions, such as limiting the number allowed to enter practical training prior to the final bar exam, or a freeze for a limited period on new admissions to the bar. Ledford repeats his theme: "Although no legislation was forthcoming prior to the advent of the National Socialists and their far different criteria for reducing overcrowding in the bar, lawyers in private practice nevertheless had agreed to seek state action to overcome a rift within their ranks." (p. 345)
It is difficult to dissent from Ledford's careful summing up about the problems of the German legal profession, in which he correctly points to the inadequacy of the traditional, small, secure and liberal-oriented bar of the Empire with its Honoratiorenpolitik to solve the professional crises of what was rapidly becoming a large, diversified, economically distressed special interest group that increasingly looked for shelter by the end of the Weimar era.
Yet a few critical comments might be worth making. The German legal profession was relatively immune to the siren-song of fascism (compare it to the contemporary Hungarian bar!). None of the controversies and debates about autonomy vs. cooperation with the state discussed by Ledford were new to the time of the Weimar Republic. Indeed, one could make a case that a close reading of the important episodes discussed by Ledford often reveals not always a clear pattern of abandoning old liberal, independent ways, but genuine dissent and changes of majority lawyers' views as situations (such as the overall economy) veered from unforeseeable stage to stage. Even at the birth of the DAV in the 1870s, there were many attorneys who dissented from the radical breach with close state supervision of the bar advocated and carried by the "Berlin liberals" following Rudolf von Gneist.
Yet Ledford appears at times to assume that this liberal tradition ought somehow to have continued, and the episodes he describes are adduced as evidence of the weakening of that tradition, even though the episodes themselves often demonstrate on the contrary the continued vigor of attorneys' concern for their autonomy and distance from the state. On the other hand, when Ledford correctly chronicles their drift toward state protection of their market position, he argues that "their influence ... did not extend as far as it did before the First World War." (p. 347) While this is true, one can also ask whether to attribute such loss of influence to the profession (most other professional groups felt a similar lack of access) or to the fragmented, shifting and unpredictable nature of the "state" under Weimar political conditions. One could conceivably read the outcomes of the five episodes cited as evidence of some limited progress by the DAV, by 1932, in consort with the state, toward improving members' market conditions (the limited numerus clausus). Although Ledford is careful not to overstate the case for decline and crisis of the DAV, it is hard for any scholar writing about organizations in this period to escape the tacit looming question of why they were so easily coordinated or eliminated by the National Socialists. Although he has nowhere else proved such a condition, he speaks in his last sentence of the "paralysis of the organized bar" in 1933. (p. 349) Like other professional groups in Germany, the DAV was certainly crisis-ridden, mostly because of the Great Depression, and demonstrated almost helplessness in face of Nazi Gleichschaltung; but it may be too simple to suggest that it had become "paralyzed" as a professional group because of the five debates so carefully analyzed in this article.
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