Andrew Szanajda. The Restoration of Justice in Postwar Hesse, 1945-1949. Lanham: Lexington Books, 2007. ix + 261 pp. $70.00 (cloth), ISBN 978-0-7391-1870-2.
Reviewed by Kevin P. Reynolds (Department of History, University of Sussex)
Published on H-German (December, 2007)
Charting Change in the Justice System within the U.S. Zone of Occupation
At the international level, although it was by no means inevitable, the brief Allied--and particularly American--effort in expanding and applying the rule of law was so great that it can be explained partly by the desire to define "civilized" behavior in contrast to National Socialist rule, the latter so often having been characterized at the time as purely "atavistic" barbarity. Yet in the field of domestic law--as with so many others--the Third Reich once again provides us with an important historical truth; in this case, that law and justice can be entirely unrelated. This is a point that Georg-August Zinn, the Minister of Justice in Hesse (1945-49), made (rather more eloquently) towards the end of the occupation.[1]
Andrew Szanajda's monograph aims to "examine the restoration of the justice system in post-war Hesse, a new land in the United States occupation zone, during the post-war Allied military occupation of Germany (1945-1949)" (p. 1). After a very brief introduction Szanajda provides an outline of the legal system under the Third Reich. Here, we are taken through the familiar ground of the Reichstag Fire Decree, the Enabling Act and the process of Gleichschaltung as it took place throughout the Reich as a whole. The sanction given to the murderers of the SA leaders on June 30, 1934, is cited as an example of arbitrary rule, substituted for the rule of law.
Rather than any local or everyday example of Nazi injustices in Hesse, the focus of Szanajda's narrative remains at the national level in its aim to emphasize the process of centralization from Länder to the Reich. Indeed, this process of centralization is portrayed as "the most incisive change of the judicial organization in National Socialist Germany" (p. 13). As one of the most blatant attempts at such central control of all individuals within the Nazi "justice" system, the Reich minister of justice was given the power to recommend to Hitler all candidates for judicial office, and would also control the appointment of all lawyers. Yet, perhaps the most notorious example of extending the Nazi "justice" system remains the instigation of the Volksgerichtshof (People's Court) and the Sondergerichte (Special Courts), both devoted to punishing "traitors" who opposed, or merely failed to keep up, the spirit of National Socialism (pp. 23-27).
The second and shortest chapter--consisting of only twelve pages--deals with Allied planning for military government and the restoration of the justice system. Again, this material covers relatively well-known ground, from the Moscow Conference in 1943 and the planning of the European Advisory Commission as a prelude to the activities of the Supreme Headquarters Allied Expeditionary Force and, finally, the instigation of Allied Control Council Laws.
Szanajda presents most of his research in the bulkiest chapter, which can be best described as a chronology of institutional change during the occupation, tracing the legal and administrative steps from the point of complete Allied control towards the increasing jurisdiction of the domestic courts of Hesse. The strength of this book lies in the detail, for here we can find all the laws and ordinances imposed by the Allies that were relevant to restoring the justice system throughout Germany. It is, however, at this point that those readers with a particular interest in Hesse might feel some disappointment.
The book does make more than occasional references to the particular circumstances of Hesse, such as that only there did the possibility exist for individuals to bring a case to the Constitutional Court if their fundamental rights--as laid down in the new state constitution--had been violated (p. 69). But as to how this difference practically affected the lives of people in Hesse, and how their circumstances may have differed from those of Germans in the other two states of the U.S. Zone (or elsewhere), we are left only to ponder. Most other references to Hesse, apart from specific dates, seem to be equally applicable to the entire U.S. Occupation Zone.
It is in the final chapter (before a brief conclusion) that the style and approach of the book become most problematic. Here, Szanajda retraces the entire period of the occupation, focusing on denazification measures taken (or not) by the Allies (and, increasingly, the Germans) with regard to jurists and lawyers. As stated in the introduction, this chapter relates to the "human element" of the story (p. 5). Yet the emphasis nonetheless remains focused on details of laws, ordinances, and proclamations rather than what people thought, did, or said. With this particular institutionalist approach, it appears impossible to make any meaningful judgment as to how imbued with National Socialist thinking the judiciary may have been.
Take, for example, the statement: "[M]any of the jurists in the postwar Land of Hesse would be drawn from the ranks of the judiciary who had survived the National Socialist regime" (p. 109). Actually, most of those judges "survived" due to their self-coordination with National Socialism. However, because the book's approach is devoted mostly to describing laws and ordinances imposed from above (either by the Nazis or the Allies) the overall impression a reader receives from it is that National Socialism just happened and was simply imposed upon all the judges and lawyers of the Third Reich. Later, it follows, because no National Socialist institution or movement survived the war, former members of National Socialist organizations "generally became apolitical followers of the new [democratic] system" (p. 170) and, we can assume, all was well in the courts of the new Federal Republic.
The story is a particularly Manichaean morality tale of the transition from Unrechtsstaat to Rechtsstaat, from Nazism to western constitutional democracy and justice. The author sometimes acknowledges Cold War compromises--when, for example, it came to revising the vigor of denazification--but this is essentially a Whiggish tale of redemption and progress. The research undertaken provides little real sense of local conditions particular to Hesse, and so the book is more useful as a general guide to the laws enacted across the whole of Germany by the Allies. For a more meaningful analysis of the justice system (and those within it) in the aftermath of the Third Reich, and for a more enlightening view of the behavior of the judiciary under National Socialism, readers are likely to find Ingo Müller's older contribution still relevant and more useful as a general guide.[2]
Notes
[1]. Georg-August Zinn, "Administration of Justice in Germany," Annals of the American Academy of Political and Social Science 260 (1948): 32. Zinn is paraphrased in the introduction of the work under review.
[2]. Ingo Müller, Furchtbare Juristen. Die unbewältigte Vergangenheit unserer Justiz (Munich: Kindler Verlag, 1987), and The Courts of the Third Reich, trans. Deborah Lucas Schneider (Cambridge: Harvard University Press, 1991).
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Citation:
Kevin P. Reynolds. Review of Szanajda, Andrew, The Restoration of Justice in Postwar Hesse, 1945-1949.
H-German, H-Net Reviews.
December, 2007.
URL: http://www.h-net.org/reviews/showrev.php?id=13978
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