Frederick Pollock: Is National Socialism a New Order?

Zeitschrift für Sozialforschung, Jg. 9, 1941

Is National Socialism a New Order?

By Frederick Pollock
When I speak of a new order I do not refer to the new system of
frontiers, coalitions, puppet states and such that the Axis is establishing
all over Europe or that might be worked out at the forthcoming
peace conference. My aim is to clarify the new order as a
new social and economic system in contrast to monopoly capitalism.
To cite the most obvious example, nineteenth century capitalism must
certainly be called a new social and economic system when compa
red with the feudal order that preceded it. But must we, for instance,
also declare monopoly capitalism to be a new order as
contrasted with competitive capitalism?
Obviously, we can proceed only after we‘ have chosen a yardstick
permitting us to distinguish a new order from an old Olle. The
basic concepts and institutions of our economic and social system
must serve as such a yardstick. Only if we agree upon the essential
characteristic of our own social system, will the answer to our problem
make sense. For those who refuse agreement, the answer will
be meaningless.
I should like to put the essential characteristics of modern society
under the following headings:
( 1 ) the ruling dass,
(2) the integration of society,
(3) the operation of economic life,
( 4) the relation between government and governed,
(5) the role of the individual.
‚The following ia the last in aseries of live public lectures delivered at Columbia
University by the Institute of Social Research during November and December 1941.
The other four lectures were:
Herbert Marcuse, State and Individual under National Socialism;
A. R. L. Gurland, Private Property under National Socialism;
Franz Neumann, The New Rulers in Germany;
OUo Kirchheimer, The Legal Order under National Socialism (published in tbis issue.)
The author’s task was a two·fold one: to summarize the four preceding lectures and to
answer the question whether National Socialism is a new social order. The combination
of these two tasks led to the stressing of those points wbich were discussed before
and in wbich the author partly disagrees with his colleagues.
Since it was impossible to publish the whole series; the text of the concluding lecture
is given here in its original form, incorporating the main points of the previous lectures as
weIl as the controversial issues. This lecture represents the application of a general
theory of State Capitalism (as outlined on pp. 200ff. of IX, No. 2 of this periodical)
to Nazi Germany.
Is National Socialism a New Order? 441
Before we enter into the discussion of these headings we have
to make two methodological remarks. (1) No social system is
static. A continuous change daily alters the structure of· society.
Such changes may not he at once apparent. They may he hidden
particularly hecause the institutions remain unchanged while their
functions change. The legal institution of property, ·for instance, has
remained unchanged for centuries-and yet the social function of
property today radically differs from previous periods. (2) When
do changes that gradually creep into an existing order hecome so
vital that we must speak of a structural change entailing a new order?
When does quantitative change turn into qualitative change? A convinciIig
answer can only he given after this change has heen in progress
for a considerable time.2
(1) The Ruling Class.
Under National Socialism four groups are in control which are
distinctly marked off from each other, have conflicting interests, but
are nevertheless bound together by common aims and the fear of
common dangers. These four groups are big business, the army, the
party, and the bureaucracy. They share among them the coercive
power which was previously the monopoly of the state that stood
above them all. Whereas until recently in the capitalistic era social
power mainly derived from one’s property, under National Socialism
one’s status is determined by his social function. Wealth, acquired
or inherited, may and does facilitate access to positions of power,
hut instead of market laws and property rights, thestatus of the individual
within the group decides the use he can make of his property.
This development will be better understood when seen in· connection
with the universal trend toward a divorce between ownership
and control. 3 Side by side with the owner-manager who owns the
majority of capital, stands the pure manager, who, having only
‚For the latest comprehensive material about. the National Socialist economy and
society see: Franz Neumann, Behemoth. The Structure and Practice 0/ National Social·
ism, New York 1942; Lewis L. Lorwin, Economic Consequences 0/ the Second World
War, New York 1941 (parts one and three); Maxine Y. Sweezy, The Structure 01 the
Nazi Economy, Cambridge, Mass., 1941. The important problem of the connection
between the recent technical revolution and the new order has been discussed in
A. R. L. Gurland’s article on Technological Trends and Economic Structure under
National Socialism (IX, No. 2, pp. 226fI. of this periodical).
‚The American standard work on this trend is still A. A. Berle and G. C. Means, Tke
Modern Corporation and Private Property, New York 1933. James Burnham, in his
Managerial Revolution (New York 1941), has tried to discover where this trend is leading
to. In arecent article, „Coming Rulers of the U. S.“ (Fortune, November 1941) he has
presented his thesis in terms of developments in the United States. It should, however,
benoted that Burnham speaks of a lait accompli where, so far, a trend only is
visible. For the scope of ownership control still existing in the United States, see
Tke Distribution 01 Ownership in the 200 Largest Nonfinancia1 Corporations, Temporary
National Economic Comrnittee, Monograph No. 29, Washington, D. C., 1940.
442 Frederick Pollock
a minority interest, yet as fully cotltrols the enterprise as the
owner-r.nanager. As against these two, who exercise economic power,
stands the man who owns capital without. exercising power. If his
capital is smalI, he will become a victim of the process of concentration
which has been speeded up by thesupra-enterpreneurial organization.
It may eliminate him by refusing him the right to produce,
to buy raw materials, or to hire labor. If, on the other hand, his
capital is large and the enterprise sound, the inefficient capitalist
will be reduced to a mere rentier.
The situation of private property in Nazi Germany has been summarized
as follows: 4 „The legal institution of private property has
been preserved under National Socialism. The claim of invested
capital for a just return has never been questioned. But the owner’s
right to control the use of his property is subject to manifold restrictions,
the handling of which lies with the supra-enterpreneurial organizations.
They are being run by representatives of the most
powerful industrial and financial combines. The checks imposed
upon the rights of the individual property owners result in an increased
power of a few groups every one of which rules over real
industrial empires.“
1 quite agree that the legal institution of private property has
been retained and that many of the characteristics shown to be inherent
in National Socialism are already apparent, perhaps only in
an embryonie stage, in non-totalitarian countries. But does it mean
that the function of private property is unchanged? Is the „increased
power of a few groups“ really the main result OI the change that
has taken place? 1 think that it goes far deeper and should be described
as the destruction of all but one of the essential characteristics
of private property. Even the mightiest combines have been deprived
of the right to establish a new business where the highest profits can
be expected; or to discontinue production where it becomes unprofitable.
These rights have been transferred to the ruling groups
as a whole. It is the compromise between the controlling groups
which decides on the scope and direction of the productive process;
against such decision the property title is powerless even if it is
derived from ownership of an overwhelmingmajority of a stock, not
to speak of a minority stock owner.
This view of ,mine. might be challenged by reference to the
growth of „interna 1 financing.“ But „internal financing“ is deli herately
furthered hy the ruling groups to facilitate expansion. Like al1Y
‚By A. R. L. Gurland. in his lecture mentioned above.
Is National Socialism a New Order? 443
other investment it depends upon the consent of the authorities and
not upon the mere fact. that internal funds are available. If the expansion
of an enterprise does not fit into the general program of
the government, the utilization of the accumulated reserves for plant
expansion will be prohibited and the accumulated funds must then
be used otherwise, perhaps compulsorily invested in government
bonds.
It is hardly necessary to mention that all those who do not belong
to the controlling group–the urban and rural middle classes,
workers and salaried employees-have no institutionalized means
to enforce their wishes upon the rulers. Their organizations have
been destroyed or transformed into agencies to dominate them. Only
the fear that they could rebel when the pressure from above becomes
too strong, makes the pressure from below somewhat effective and
enforces concessions.
In this short summary I can neither discuss the transfer of power
from finance capital to industry nor the different trends in the powerposition
of producers and consumers goods industries. In a complete
survey of the changes which have occurred within the ruling
class these and other processes would have to be thoroughly analyzed.
5 It is their totality, combined with the change in the functions
of property, that, in my opinion, justifies speaking of a qualitative
change in the ruling class under National Socialism. Although the
power of the industrial monopolists may still be enormous, it is today
contingent upon the goodwill and cooperation of the „practitioners
of violence“ (as Rarold LassweIl has aptly termed them).6
(2) The Integration 0/ Society.
Under National Socialism the individuals as weIl as the social
groups meet in a way which, in its social meaning and legal status,
is totally different from that of the traditional society. In the latter
the individuals and strata communicate with each other through the
medium of exchange as legally equal partners. Free workers and
free entrepreneurs meet each other on the market. Income figures
determine the social value and power of the individual.
National Socialism has abolished the last vestiges of such free
economic subjects; property and income are no longer the foremost
determinants of the individual’s social position. Capitalists and
·Cf. Franz Neumann, op. cit., and OUo Kirchheimer, „Changes in the Structure of
Political Compromise“ in IX, No. 2, pp. 264fI. of this periodicaI.
‚Harold D. LassweIl, „The Garrison State“ in The American /ournol 0/ SocioloB’Y,
No. 4 (1941) pp. 455fl.
Frederick Pollock
labor alike are organized in one all.embracing organization, the
Labor Front, and fused ideologically in the people’s community.
Their relationship is defined as that of leaders and followers, and
it is based upon command and obedience. Though wages are paid,
they have lost one of their main functions, namely, to distribute the
labor power within the economic process. Social power, prestige,
and honor now depend decisively upon one’s place in the govern·
ment and party hierarchies. The relation between property, income
and social power has thus been radically altered. Money alone gives
only limited power or (as in the case of the J ews) no power at all.
Political power, in turn, which is equivalent to the control of the
means of production, may become the source of practically unlimited
income.
It has been suggested that the National Socialist relation of
„leader and followers“ is equivalent to the feudal relation between
lord and vassal. I do not believe this to be true. We must not be
deceived by terminological similarities ahd especially not by skilful
National Socialist propaganda which would like us to believe in a
paternalistic relation between employer and worker. Feudal society
is characterized by the directness of human relations which are
based on a contract of trust and faith, incompatible with authoritarian
discipline. The leader of a German enterprise is merely a cog in the
wheel of a huge bureaucratic machine which has destroyed the last
remnants of personal relations still existing in capitalist society.
(3) The Operation of Economic Life.
National Socialism has not created a planned economy so that
the whole economic life might be directed and performed according
to a well conceived and detailed plan. Its so·called Four Years
Plan has never been published, because it does not exist and must
be considered a mere ruse to enforce concentration of control and
speed·up of armament production. As late as 1941 the Frankfurter
Zeitung7 declared that „the problem of a totally planned economy
has never been seriously discussed.“ Planning in Nazi Germany is
a mere patchwork of stop gap measures designed to cope with the
tasks created by armament and warfare. It has been stressed that the
„legislative measures carried through during the first years of Na·
tional Socialist administration were based on the assumption that
the inherited economic system would last forever.“g In view of the
fact that there is no general plan, and no intention of establishing a
‚In its issue of J une I, 1941.
‚A. R. L. Gurland, in his lecture mentioned ahove.
Is National Socialism a New Order? 445
planned economy, in view of the emergency character of preparedness
and war economy, many observers believe that no new economic
order has arisen_ In this view, a highly monopolized war economy
has resulted in some strengthening of the monopolistic positions but
has left the economic structure untouched_ I believe this view to
take surface phenomena at face value. Even if the German leadership
should be committed to the maintenance of private capitalistic
economy, the objective force of its manifold interferences in the
economy is more powerful than its pious wishes. Even against its
. desires and preferences the objective facts are on the way to destroying
the old order. One interference of necessity produces another.
The leaders are driven to take increasingly drastic steps by
the unpleasant alternative of proceeding and having a chance of
survival or of stopping and meeting complete collapse. To summarize:
all basic concepts and institutions of capitalism have changed
their function; interference of the state with the structure of the
old economic order has by its sheer totality and intensity „turned
quantity into quality,“ tran1iformed monopoly capitalism into state
capitalism.
Let me examine a few details: the market, prices, and profits. It
seems certain that no master plan exists for the Nazi economy and
it is unlikely that detailed figures have been worked out for the
various branches of industry. But there is definitely a detailed plan
for agriculture which has led to wholesale regimentation of agricultural
production and marketing. For industrial production, however,
a clearly defined general program exists embodying the basic
aim of National Socialist economy: full employment, utmost nondependence
on imports, withdrawal from consumption of whatever
can be spared of the national income, and producing the physical
maximum of producers goods in general and armament in particular.
To carry out this program, a variety of methods are at the disposal
of the regime; they have been described.10 The supra-enterpreneurial
organizations, federated in the National Economic Chämber,
co operating with the numerous Four Years Plan bureaucracy,
obviously bears the brunt of this task. Such central steering of
the whole economy leads to the actual disappearance of the market
as the steering wheel of production. It is not only that many
prices have‘ been frozen. Even where ßuctuations of prices are
still permitted, prices can no longer serve as signals for increasing
or curtailing production. Allocation of raw material, of machinery,
„See this periodical, IX (1941) No. 2, pp. 20411.
446 Frederick Pollock
of fuel and of labor were gradually replaeing the system of bidding
for the faetors of produetion. I don’t believe eentral steering
to be merely the result of searcity that develops in every war
eeonomy and disappears with the emergeney. On the eontrary; the
avowed goal of Nazi eeonomie poliey is permanent full employment
without reeurring phases of boom and depression; or, to put it in
the words of a Nazi writer, „an epoeh without trade eycles whieh
is the fulfillment of National Soeialist aims and which spares the
employer ha:rd times of los ses and the risk of collapse.“ll This goal
can only be aehieved if the market meehanism is definitely scrapped
as the controlling machinery and if centralized control, more centralized
than before, is put in its place.12
What will be the fate of the so-ca lIed economic incentives? Are
there no longer profits and is the profit system abolished? I should
like to give a paradoxieal .answer: there are and will be profits in
Nazi Germany, even enormous profits for big business, but the
profit system, as we have known it, is nevertheless dead. Profits
have lost their main eeonomie funetion, namely, to direet the flow
of eapital. To put it paradoxieally aga in, under National Soeialism
produetion is for use and not for profit. It should be understood
that produetion for use is not intended to mean „for the needs of
free men in a harmonious soeiety“ but simply the contrary of production
for the market. In the capitalist economy produetion and
investment have always swiftly moved into the sphere of the highest
profits. Under National Soeialism, even the most powerful profit
interests become subordinated to the general program. If they act
in accordanee with this program (and under prevailing cireumstances
they often do), profits may be made. But the most outrageous
profit expectations will lead nowhere if they run contrary to this
program. In every ca se where the interest of single groups or individuals
conflicts with the general plan or whatever serves as its substitute,
the individual interest must give way. It is the interest of
the ruling group as a whole that is decisive, and not the individual
interests of those who belong to it. Even very strong partieular
interests cannot prevent the execution of urgent tasks necessary for
the common weaI,13
„Frankfurter Zeitung, loe. eit.
„The main arguments for the feasibiJity of substituting for the market mechanism a
control machinery making use of a pseudo.market are given on pp. 204fl. of IX, No. 2,
of Ihis periodical.
„For Ihe situation in Ihe United States prior to its entry into the war, see the findings
of the Special Committee Investigating the National Defense Program (Truman Com·
mittee). The following blunt statement illustrates our point: „The oommittee, in the
investigations which it has already conducted, has found numerous instances of gross
(/ootnote eontinued on ,:e“t page)
Is National Socialism a New Order? 447
Two functions are left to profits in National Socialism: as income
for the property owners and as a premium for enterpreneurial
efficiency. In the first aspect they are strictly controlled and limited,
in the second they are the reward for efforts and accomplishments
which are above average. Since business cycles are eliminated it is
quite „natural“ that „the ever recurring profit for the average enterpreneurial
performance, a profit which is not mortgaged by los ses
and risks, will be smaller than in former times of booms and
depressions. „14
I believe these remarks to be sufficient to clarify my thesis that
National Socialism is building a new economic order where the
market is replaced by the command.
( 4) The Relation between Government and Governed.15
The ruling groups exercise their domination over the masses
through bureaucracies which in their upper layers are themselves
partners to the „compromise“16 and which in the lower ranks of
police, judiciary and party bureaucracy are the executive organs
entrusted with the domestication of the masses.
In this new partnership the spheres of influence are not fixed
once and for all. They fluctuate constantly according to the failure
or success, relative strength or weakness of a given policy with
which one given gtoup may be more intimately associated than another.
But these fluctuations do not change two essential facts.
First, the position of the individual has largely become dependent
upon his status within his group. This status, in turn, is sanctioned
and confirmed by administrative orders which have come to supersede
the rules of civillaw. A new state of affairs has arisen which
has aptly been called „a synthesis between government and private
enterprise.“ Second, the consequence of this new synthesis is the
disappearance of the rule of law as equally binding on ruler and
ruled. The two-sided rationality subjecting rulers and ruled to
the same formulas has been replaced by a one-sided technical rationality.
The uppermost concern of the government is the precision
and speed with which its rapidly changing orders are executed.
inefficiency and still more instances where the private interests of Ihose concerned
have hindered and delayed the defense program. A considerable quantity of supplies
and material which we should have today have nol been produced and the war effort
has been seriously handicapped as a result.“ (77th Congress, 2nd Session, Senate,
Report No. 480, Part 5, WashingIon, D. c., 1942, p. 2.)
„Frankfurter Zeitung, [oe. eit.
„For the foIIowing see Otto Kirchheimer’s arlicles on pp. 456ff. of this issue, and
pp. 264ff. of IX, No. 2, of Ihis periodical.
„See Otto Kirchheimer, loe. eit., p. 264.
448 Frederick Pollock
Under such a system the executive organs tend to be more and more
machinelike, and this machine quality gives the state apparatus its
high degree of precision and technical calculability.
Law in Nazi Germany presents a striking example of functional
changes. Many of the old legal institutions are still working and
still applying time-honored formulas. The stafI of the Ministry of
Justice is unchanged. The whole difIerence between democratic and
totalitarian laws seems to boi! down to a wholesale use of terror
by National Socialism. Yet, factually, nothing has been left of the
old order of things besides the fa~ade.
(5) The Role 0/ the Individual.17
The National Socialist regime has, more than any other form of
government, unleashed the most brutal instincts of the individual.
It regards man only as the ultimate source of that energy on which
the gigantic apparatus of domination and expansion feeds. The
human individual is cared for and even cherished only insofar as
he is the source of labor power, furnishing the instruments of war
and expansion. All the official efIorts to beautify work and leisure,
all the Strength Through J oy activities, serve, in the last analysis, to
increase the output of the individual, to strengthen his performance,
to enhance bis efficiency. Tbe mobilization of the individual is without
limits: National Socialism tears down the protective walls which
the liberalistic era had erected between private and social life. Thi!l
mobilization cannot be carried .through, however, without compensating
the individual for the total loss of his independence. Since
every compensation that amounts to areal increase of individual
liberty and happiness must, of necessity, endanger the system of
domination, a form of satisfaction had to be found which was to
intensify rather than weaken the system. Such a form of satisfaction
was made possible by the abolition of certain social taboos which,
while restricting the drives and desires of the individual, at the same
time had guarded his privacy against the interference of state and
society. National Socialism has done away with discrimination
against illegitimate mothers and children, it has encouraged extramarital
relations between the sexes, and it has transformed this
entire sphere of protected privacy into arealm of public service. It
must be noted, however, that the increase in liberty and pleasure
involved in this abolition of taboos is efIectively counteracted by
several factors:
“For the problems connected with the role of the individual in modem 8Ociety,
cf. Max Horkheimer’s article in this issue.
Is National Socialism a New Order? 449
(1) The very fact that the individual’s private satisfaction has
become a public affair and an officially rewarded and controlled
performance removes the danger implied in such liberation.
(2) The sexual relations have been made instruments for executing
the imperialist population policy of the Third Reich. They
are thus means to a definite end, which is posited and supervised by
the National Socialist regime.
(3) And perhaps most important, the liberation of this sphere
is skilfully coordinated with the release of instincts and impulses
operating against the enemies and scapegoats of the regime, such as
cruelty against the weak and helpless (Jews, feeble-minded and
„unfit“ persons), hatred of racial aliens, or instincts and impulses
operating directly in the interest of the present rulers: masochistic
submission to all kinds of commands, to suffering, sacrifice or death.
The released individual is thus caught in a physiological and psychological
structure which serves to guarantee and perpetuate his
oppression.
It would be worthwhile to discuss the fundamental changes in
the role of the individual from the point of view of the changed
status of the family. The family in Nazi Germany is in full disintegration,
deprived of all its former functions. It can no longer protect
the individual economically. W ords carelessly used in front of
one’s own children may lead to disaster. Education has passed completely
into the hands of the party, and even the family’s monopoly
on legitimate procreation has been broken.18 The destruction of the
cornerstone of modern society, the family, may prove more convincingly
than any other single argument that a New Social Order
is being built in Nazi Germany.
1 have come to the end of my cursory analysis of the changes in
the functions of basic institutions and concepts. 1 should have added
many others, e.g., the nature of the new imperialism. Its decisive
difference lies in the fact that oldfashioned imperialism could be
saturated, while the new imperialism must incessantly expand until
it has attained world domina ti on.
The deeper one goes into the comparison of the old and the new
in Nazi Germany, the more one comes to the conclusion that a New
Order is in the making, a New Political, Legal, Economic and Social
Order. What is this new order and can it last?
,. All these and related problems are reported in: Gregor Ziemer, Education fOT Death,
New York 1941.
450 Frederick Pollock
The New Order-what is it?
Is it useful to label the new order „State Capitalism“?19 Serious
objections may be raised against this term. There are already grave
doubts as to whether it makes sense to call the National Socialist
system astate. The word state capitalism, besides, is possibly misleading
because it may be understood to denote a society wherein
the state is the sole owner of all capital. This is definitely not the
case for National Socialism. Nevertheless, the term „State Capitalism“
describes better than any other term four properties of
the new system: (I) That the new order is the successor of private
capitalism, (2) that the state assurnes important functions of the
private capitalist, (3) that capitalistic institutions like the sale of
labor, or profits, still playa significant role, and (4) that it is not
Socialism.
Many other labels have been ofIered in recent discussions, such
as controlled economy,state organized monopoly capitalism, totalitarian
state economy, neo-mercantilism, bureaucratic collectivism.
I believe the term „Command Economy“ best expresses the meaning
of the new system. This word was first used by a Nazi writer20 in an
article in which he asserts that „competition, monopoly and command,
these basic elements of every economic theory, equal each
other today in scope as weIl as in power. But gradually the weight
turns in favor of command.“21 What strikes me in the concept
„Command Economy“ is that it essentially counterposes itself to the
concept „Exchange Economy.“ It suggests an economy which is
based upon command in a similar sense as the liberal economy is
based upon exchange. It leads logically to describing the new
society as a „Command Society“ in contrast with the „Exchange
Society“ of bygone days.
In using these labels, 1 do not wish to imply that National Socialist
Germany is a fully developed state capitalism or a total command
economy. 1 want to stress that the new German system comes
closer to these economic concepts than to those of laissez faire or of
monopoly capitalism.
The difIerences between the new order and private capitalism
need no further discussion. But wherein lies the difIerence hetween
„See the discussion of this concept on pp. 20011. in: IX, No. 2, of this periodical.
„‚Willi Neuling, „Wettbewerb, Monopol und Befehl in der heutigen Wirtschaft.“ Eine
Vorstudie zur Neubegründung der deutschen Wirtschaftstheorie, in Zeitschrift für die
Besamte Staatswissenschaft, 1939, pp. 27911.
„Loc. cit., p. 317.
Is National Socialism a New Order? 451
National Socialism and an economy in which „the concentration of
economic power in, and financial control over, production and distribution
of goods and services“22 has become typical of most spheres
of the economic life? Certainly, under monopoly capitalism many
of the conditions of production and distribution are controlled in a
way similar to that of National Socialism. In pre-Nazi Germany
the quantity and quality of many commodities were fixed by supraenterpreneurial
organizations or straightforward monopolies independent
of the laws of the market. Wage and salary scales did not
necessarily change with the variations of supply and demand. But
the manipulation of the market lay in the hands of antagonistic
groups; it was not determined by any other goal than that of bettering
their bargaining positions. The interference with the market
system made the market more and more unworkable but no provisions
were foreseen to eliminate the ever more serious disturbances.
Under National Socialism, we again observe a typical change
from quantity into quality. The monopolistic organizations no
longer operate as disturbing intruders but take over the market functions
as government agents. What formerly were more or less
voluntary supra-enterpreneurial organizations have become compulsory
and comprehensive. Instead of each specific industrial group
fighting for maximum profits at the expense ofmore and more
frequent interruptionsof production, they collectively aSSllme the
responsibility of coordinating the whole economic process and thereby
of maintaining the existing social structure.
This development has been accentuated in the hothouse of the
war economy but is far from completed. Bitter struggles between
competing groups have made their appearance in the past and will
probably come into the foreground aga in, provided that the whole
system will survive the war. Meanwhile the sm aller Iry is being
annihilated at top speed under the impact of priorities, allocations,
labor and exchange controp3
In following this li ne of reasoning, the monopolistic phase of
German economic development appears as a transitory one. During
„This is the Temporary National Economic Committee’s official description of its
object of investigation.
„A similar process is going on in the Uni ted States. The New York Times (February
6, 1942) quotes areport of the Senate’s Special Small Business Committee (Murray
Committee): „Small busiriess enterprise … is facing bankruptcy and chaos along a
wide front. Unless eflective measures are taken . . . the postwar period will see it
wholly out of the pictnre. Then, big business, with its branch and chain establishments,
backed by great financial and political power, will move in to occupy the entire field ….
The position of small business has long been precarious. The eflect of the defense
program has been to grease the skids for it.“
452 Frederick Pollock
a few decades the organs of the new order had been developed, so
to speak, in the wo mb of the laissez faire economy. When it became
evident that theold system was no longer workable, the new one
sprang into being with that incredible ease which can be understood
only when we recognize the preceding decades as preparatory to it.
The New Order-can it last?
During the last years, we have been driven to ponder again and
again the question: can this totalitarian system last, and what are
its possibilities and limitations? I do not claim to possess an answer
to the manifold problems involved here. What I shall try to discuss,
and only hriefly, are the economic aspects of the question.
So far, the National Socialist economy has shown an enormous
strength under -all sorts of pressure and has probably overcome all
the handicaps which ought to have led to its doom-in the opinion
of many economic experts. These prophets of downfall have overlooked
that National Socialism applies a new set ofrules to its
economic policy, rules which made its economic policy more efficient
than anything known heretofore. They have also misjudged
the limits of those economic la ws which the recognized science of
economics has in vain tried to bring under control for the last
150 years.
By a new set of rules I und erstand those principles which are
applied with the purpose of replacing the principles of laissez faire.
Most of the new rules have been mentioned before, especially the
iron necessity of full employment. The totalitarian state is in a position
to guarantee one single right to all its „racial comrades,“ a
right which no democratic state so far has been able to grant to its
citizens: economic security.- This security, it is true, is bought at
the expense of a total brutalization of society. Still, the integrative
function of full employment in this era of ever more threatening
general economic insecurity can hardly be overestimated.24 It prob-
„lt is a rapidly spreading opinion that the creation of uninterrupted fuH employment
has become a main economic task in all industrialized countries. The following
quotations are representative of numerous others: „The problem of full employment
is crucial; it must be solved even at the cost of radically modifying our system. If
it is not solved, it wHl itself modify the system-radically.“ (Elliot V. Bell in the
New York Times Book Review, July 27, 1941.}-UThe dangerous temptation to barter
politieal freedom for eeonomic security will exist until it is proved by experience tbat
a free government ean not only provide a higher but a safer standard of living for
the ma.ses than despotism. Yet safety of livelihood can only exist if a suflicient number
of jobs is available, and it would be a fatal error to believe that tbis can be achieved
at the end of the war by ‚letting nature take its course.'“ (earl Landauer in a letter to
the New York Times, February 15, 1942.}-“ … The Free Enterprise System will
have to provide full proteetion, fuH employment, full distribution of goods and services, or
(jootnote continued on next page)
Is National Socialism aNew Order? 453
ably counts for more in the minds of most people than their standard
of living (provided that this standard is not desperately low
and has a tendency to improve), it probably counts for more to the
smaIl business man than the loss of independence, or to the worker
than the loss of his own organization. In foIlowing up the purely
economic aspects, we find those devices that were designed to replace
the functions of the market. There is, firstly, the goal set for
aIl economic activities, a goal which is not based upon the anonymous
and unreliable poIl of the market, verified post /estum, but based
upon a conscious decision on the ends and means of production before
it starts. There is, secondly, the administration of prices which
are no longer aIlowed to behave as masters of the economic process
but have been reduced to a closely controIled tool. There is, thirdly,
the one which I have already discussed, namely, the subordination
of the profit interest to the general economic program. There is,
fourthly, the replacement of guess work by the principles of scientific
management in aIl spheres of public activity (and under National
Socialism that means in all spheres of sociallife). Guess work
and improvisation must give way to an aIl-comprehensive technical
rationality. This principle of „rationalization“ is being applied to
spheres which were previously the sanctuary of guess work, of routine
and of muddling through, e.g., military preparedness, the conduct
of war, manipulation of public opinion, the granting of rewards, the
use of the legal machinery, and the „strategy of terror.“ In the
economic realm the same principle has produced many of the successes
in rearmament, and counteracted some of the destructive effects
of red tape necessarily connected with a scarcity economy.
The recognition of an economic sphere into which the state shaIl
not and cannot intrude, so essential for the era of private capitalism,
is being radicaIly repudiated. In consequence, execution of the program
is enforced by state power and nothing essential is left to the
functioning of laws of the market or other economic“laws.“ The
primacy of politics over economics, so much disputed under democracy,
is clearly established.
But have we not been taughtthat politics cannot successfuIly interfere
with the economic laws and that aIl attempts to cope with
them by political pressure have ended in dismal failure? Myanswer
to this is that as long as economic laws are attacked from the outside
step aside for government agencies … There is no ‚return to normalcy‘ ahead for the old
world, whoever wins • . . Our people demand economic freedom and security. If we·
don’t give them their birthright, some other system will attempt the job ….. fCharles.
E. Wilson, President of the General Electric Company, in Readers Digest, January 1942.)
454 Frederick Pollock
only (for instance in tampering with money and prices to overcome
the fluctuations of the business cycles), all these efforts are in vain.
But it is a different story when the economic laws are put out of op·
erati()n by depriving the market of its main functions. Exactly this is
happening in National Socialist Germany. I do not pretend that the
ruling groups in Germany have unlimited power in the economic
realm-there is no such thing as unlimited power on earth-but I
stress that in a command economy the „theoretical laws of classical
economic theory as weIl as of the theory of monopolistic competition
are eliminatedto a wide degree. Notwithstanding certain unavoid·
able deviations (which result from the co·existence of residues from
the old order) the fundamental fact remains that every command in
the economic sphere has acquired a range of discretion. [Beliebig·
keitsspielrauml which surpasses everything possible under individu·
alistic or monopolistic conditions.“25
All this may make most unpleasant hearing for those of us who
had hoped that a totalitarian order was bound to collapse as a result
of the dash between po li ti ca I aims and economic necessities. As far
as the purely economic aspect is concerned, I cannot see serious
dangers for the continuance of the new order, if Germany should
succeed in acquiring control over an adequate supply of raw mate·
rial and foodstuffs. We all expect that Germany will suffer military
defeat and that the National Socialist system will disappear from the
earth. But that is not the point in our present discussion; we are con·
cerned here with the–Iet us hope purely academic-question
whether there are economic limitations of the new order. I do not
speak here of the limitations that apply to every social system, e.g.,
those which result from the necessity to reproduce the given re·
sources, to achieve optimum efficiency, to have a sufficient supply
of labor, raw materials and machinery. I am searching for those
factors which under conditions of private capitalism tend to create
unemployment, overproduction and overinvestment, tend to make
accounting impossible and tend to produce astandstill or even
retrogression in technical development. In analyzing the structure
of state capitalism I am unable to discover such inherent economic
forces as would prevent the functioning of the new order. The
command economy possesses the means for eliminating the economic
ca~ses of depression, cumulative destructive processes and unem·
ployment of capital and labor. Economic problems in the old sense
no longer exist when the coordination of all economic activities is
effected consciously instead of by the „natural la ws“ of the market.
„Willi Neuling, op. eit., p. 286.
Is National Socialism a New Order? 455
There are indeed limitations to the possihilities of the new order
hut they derive from the very structure of die society which state
capitalism seeks to perpetuate and from the opposition of the non·
totalitarian outside world. If the democracies can show that economic
security must not he tied up with the loss of liherty hut can he
achieved under democratic conditions, then I dare forecast that the
new order of National Socialism will he followed in Germany and
elsewhere hy an infinitely superior democratic new order.27
„An attempt to outline an economic program for such a democratic „new order“ was
recently made by Alvin H. Hansen in a pamphlet issued by the National Resources
Planning Board, Alter the War-Full Employment, Washington, D. C., 1942. Hansen
formulates the problem as follows: „If the victorious democracies muddle through
another decade of economic frustration and mass unemployment, we may expect social
disintegration and, SOOner or later, another international conflagration. Ar.sitive program
of post·war economic expansion and full employment, boldly conceive and vigorously
pursued, is imperative. Democracies, if they are going to lead the world out of chaos
and insecurity, must first and foremost oller their people opportunity, employment, and
a rising standard of Bving.“

 

The Legal Order of National Socialism

By Otto Kirchheimer
It is one of the strongest contentions of the National Socialist
legal system that it has finally closed the gap which, under the liberal
era, had separated the provinces of law and morality.2 Henceforth,
the legal and the moral order are one and the same. What is the
reality against which we have to measure this contention? The
National Socialist legal order substitutes racial homogeneity for
equality, and therefore abandons the conception of human beings
equipped with similar capacities and equally capable of bearing
legal rights and duties. It was easy for the Nazis to make fun of
this conception. Under the conditions of our advanced industrial
society, it usually did not offer a profitable tool for the adjustment
of differences which frequently represented claims of social groups
and not of mere individuals. But our legal heaven does not consist
exclusively of group claims and counter claims. There exist also
parallel relations among individuals and hetween the individual
and the state. Indeed the suhjection of individual and government
alike to the same rules of the game is one of the happiest and not
unintentional consequences of the liheral emphasis on general notions,
with its quest for equality hetween the contending parties.
Under the veil of the community ideology, the system of general
legal conceptions equally applicahle to all cases falls.s With it falls
the heneficial fiction of a government ho und hy law to the same rules
as the individual contesting its commands. Now the individual is
checked hy two forces, the official social grouping and the government,
whose commands are not suhject to discussion and who are
organized so that their jurisdictional disputes cannot he exploited
hy the individual. The individual is suhjected to the law of his
professional group as weIl as to the impetuous command of the
state. For the run of his daily task the government relinquishes hirn
to the patemal care of the group, hut does not hesitate to make use
of its own coercive machinery when the latter’s persuasive and dis-
‚Public lecture given in Columbia University in December 1941.
‚H. Frank, Recktsgrundlegung des Nationalsozialistichen Führerstaates, Munich
1938, p. 11.
·Cf. G. A. Walz, Artgleichheit gegen Gleichartigkeit, Hamburg 1938, p. 19.
The Legal Order of National Socialism 457
ciplinary means of professiopal, racial, and intellectual co-ordination
and discrimination have been of no avail. The group’s police power
is in itself no creation of the National Socialist regime. But before,
the power of the professional and trade associations was limited
by the individual’s chance to stand aloof from them and was
further subjected to the rule of the civil law interpreted by the civil
courts. With the access to power of National Socialism the common
legal bond of a generally applicable civil law disappeared more
and more, and at the same time the professional organizations lost
their voluntary character. The labor organization, economic groups,
the handicraft and peasant organizations became compulsory organizations.
By the same token the National Socialist system dispensed
with an outside body to whose authority a group member could appeal
when faced with an inequitable group decision.4
The authority of the groupbureaucracy in industry, trade and
the professions, representing the most powerful interests or combinations
of interests, is steadily increasing with the number of
executive tasks relinquished to them by the state bureaucracy.5 For
this reason the conventional notions of property and expropriations
are in need of redefinition. What profit an individual is able to draw
from his real property, trade or ownership of means of production,
depends mainly on his status within his professional group and on
the general economic policy of the government. It is the group that
determines the qilOta of available raw material and with its authoritative
advice guides the labor authorities in deciding the vital question
as to the labor force to which an individual entrepreneur should
be entitled.6 Should his property lose its economic value in consequence
of such decisions of the group bureaucracy, it is once more the
organs of the group and not the courts that will decide whether and
‚Even in cases involving the coercive power of an organization as much affected with
public interest as that of the social insurance doctors, the civil courts have shown tbe
utmost reluctance to examine the orders of the group leadership which deprive a member
of his livelihood. Cf. German Supreme Court, April 26, 1940, Entscheidungen des
Reichsgerichts in Zivilsachen, 164, pp. 15, 32; German Supreme Court, December 21,
1937, Zeitschrift der Akademie für Deutsches Recht, 1938, p. 131, with comment by E. R_
Huber; 1. Kattenstroh, „Rechtscharakter und Nachprüfbarkeit von Anordnungen der
Wirtschaftsgruppen,“ in Deutsches Recht, 1939, p. 676.
‚The most recent shifts in the distribution of functions between state bureaucracy
and group bureaucracy have been discussed by A. Dresbach, „Amter und Kammern,
Bemerkungen über die staatliche Wirtschaftsverwaltung,“ in Die Wirtschaftskurve,
1941, No. 3, p. 193.
‚Cf. „Auskämmungskommission,“ in Frankfurter Zeitung, May 18, 1941, Nos. 250-
251, p. 7_ Interestingly enough in this commission where members of the mllitary and
the state bureaucracy, of the bureaucracy of the groups and the chambers of commerce
are always present, representatives of the Labor Front are called upon only irregnlarly_
OUo Kirchheimer
to what amount and in what form indemnity may be granted. 7 They
also will decide whether his exclusion from the rank of the producers
shall be permanent or transitory, whether he should be allowed
some trade privileges or should become arentier fed on a
more or less liberal allowance, to be paid by his more fortunate competitors,
or whether, as in the handicraft organization, he should
simply be thrown into the ranks of the working class.8 The logic of
economic concentration has never. worked more smoothly than when
the ideology of the community deprived the weaker group member
of the right to appeal to an outside body which would be prepared
to maintain the intra-group balance. In the same vein the separation
of the legal title to property from the enterpreneurial function has
been legally stabilized by the new joint-stock company legislation.
The minority stockholder has lost the last vestiges of legally enforcible
influence on the administration of industrial enterprise,
regardless of whoever may actually be in control, the old majority
interests or new managerial elements. If the newspapers and court
decisions report at length instances of .legal skirmishes between
minority stockholders and the controlling group of an enterprise,
this may serve the welcome aim of humanizing the world of corporate
giants, hut the decisions on the scant amount of information
to be thrown open to stockholders do not a:IIect the security of tenure
assured to the controlling group and the complete economic domination
it may exercise.
In the realm of agriculture, the government has gone as far as
to sanction the redefinition of property relations brought about by the
activity of the official groupings, which are more tightly knit in
this field than in any other.9 In the hereditary farm legislation it has
created a powerful tool for the preservation of an agricultural aristocracy
and middle-class throughout the whole country. The creation
and the security of tenure of a dass of well-to-do peasants and landowners
was of such great concern to the government that it took
pains to create a strict legal order of succession in favor of the oldest
or, as the local custom may he, the youngest son of the family, pushing
the other children into the ranks of the proletariat. The decisions
‚Cf. F. Wieacker, „Die Enteignung,“ in Deutsches Verwaltungsrecht, Munich 1937,
p. 749. The practice of the estate courts in indemnity cases is discussed by 1. Gebhard
and H. Merke!, Das Recht der landwirtschaftlichen Marktordnung, Munich 1937, and
by P. Giesecke, „Entschädigungspflicht bei marktordnenden Massnahmen,“ in Festschrift
für Justus Hedemann, Jena 1938, p. 368.
SW e do not have figures on the depletion of these groups as a result of the war
cembing-out measures. As regards the pre·war figures cf. Der Vierjahresplan, 1939,
p. 1029.
·Cf. the remarks of A. Dresbach, ap. eit., p. 196.
The Legal Order of National Socialism 459
of the special hereditary farm courts make itabundantly dear that
undivided preservation of suhstantial agricultural units in the same
family takes precedence over considerations of proven ability.lO
The legislation on the so-called dissolution of entailed property,
which enables the Junkers to take cover under the status of hereditary
farmers, follows exaetly the same pattern. When the present oeeupant
of the entailed estate is in good standing with the authorities
and the undivided preservation of his property fits into the Food
Estate’s agrieultural program, he will become a „peasant.“ll
This legislation was introdueed without delay in the territories
regained from Poland.12 While the great landowners thus get preferential
treatment, the inverse process may be observed with regard
to the internal settlement and colonization policy.13 Under the
Third Reich the interna I settlement poliey, whieh theoretieally at
least would have eorresponded so weIl tothe blood and soil ideology,
reeeded more and more into the background. Agrieulture now takes
on the color of a large seale industry; smaIl units vanish, meehanization
advanees, cheap labor is furnished by the government, produets
are standardized and their sale monopolized by the Food Estate
bureaueraey that fixes the prices in a bargaining process with
the other powers of the realm.
In the ease of the hereditary farmer, the government has taken
eare to lay down binding legal rules of sueeession in the interest of
eonserving a reliable rural upper dass and in order to produee a
maximum amount of staple food. In all other cases the new statute
on wills of July 31, 1938 left fairly intaet the right of the individual
to dispose of his worldly goods.14 It only strengthened the position
of the family of the testator and gave government and family the
legal weapons to harass the ehurches in ca se they might be beneficiaries
and to nullify all dispositions in whieh an absent minded
testator might have shown some afIeetion for a Jew or other enemy
of the eommunity.15 This freedom to testate would be a problematical
one and would not hinder the breaking-up of big industrial
and rural estates if the legal sueeession were subjeet to a heavy tax
‚·Supreme Hereditary Farm Court, May 30, 1939, Entscheidungen des Reichserbhof·
gerichts, 6, p. 295; December 20, 1939, 7, p. 237, and January 30, 1940, 7, p. 256.
„Statute of July 6, 1938, art. 31, I, Reichsgesetzblatt, 1938, I, p. 825, Decree of March
20, 1939, Reichsgesetzblatt, 1939, I, p. 509.
uDecree of March 18, 1941, Reichsgesetzblatt, 1941, 1, p. 154.
„Wirtschaft und Statistik, 1941, p. 285.
14Reichsgesetzblatt, 1941, I, p. 973.
„Cf. A. Roth, „Zum Art. 48, 2 des Testamentgesetzes,“ in Deutsches Recht, 1941, p.
166, and G. Boehmer, „Die guten Sitten im Zeichen nationalsozialistischer Familien·
pflicht,“ in Zeitschrift der Akademie für Deutsches Recht, 1941, p. 73; German Su·
preme Court, September 17, 1940, and September 19, 1940, ibid., pp. 84·85.
460 OUo Kirchheimer
burden as is now the case in England and the United States. But
the German inheritance tax as estahlished in 1925 was already com·
paratively mild, and it was further modified in 1934 in the same
direction by granting more generous exemptions to smaller fortunes
and large lamilies and total exemption for the succession into a
hereditary farm. Inheritance tax rates for children do not exceed
15% in the highest bracket. That the inheritance tax is meaningless
in terms of the German . tax system may be seen from the fact that
out of 23 billion marks total revenue collected in 1939, only 104
millions-that is to say, not even one half of one per cent-was
derived from inheritance taxes.16 Thus, of the two pillars which
characterize the legal order of the liberal era, private property in
the means of production and the freedom of contract, property,
even if heavily mortgaged to the political machine, has managed to
survive. But what about contracts? Is it still justifiable to say, as is
officially done in Germany,17 that the liberty of contract together
with private property, competition and the continuance of free
private trade associations form the irreplaceable fundamentals of
the racial community? This characteristic utterance itself gives a
·eIue to the answer. The right to combine freely into trade associations
is, under prevailing German conditions, synonymous with the
existence of powerful cartels and combines, which exercise public
power either directly or under the thin disguise of official chambers
and groups. Liberty of contract and government-sponsored monopoly
are incompatihle. The effect of this state of affairs was to reduce to
a minimum the sphere in which free contracts are still concluded.
We witness an acceleration of the long drawn-out process by which
general norms and conditions are substituted for individual contracts.
The conditions of business relations between producers in
different stages of the process of production, or between producers
and agents of distribution, are either covered in advance by a general
agreement between partners of approximately equal economic
strength or are forcedby the more powerful party on its economically
weaker partner. Only where this unilateral dictate threatened to
hecome too disastrous in its possible consequences, did the government
take the supervision of these dictated norms into its own hands.
Under the Third Reich the pseudo-contractual relations shaped by
such unilateral dictates are steadily increasing. As cartels acquire
official titles as authorities for distribution, their clients can do
„Wirtschaft und Statistik, 1941, p. 235. It should be borne in mind that there is
only aReich Inheritance Tax in Germany.
„C. H. Nipperdey, „Das System des bürgerlichen Rechts,“ in Zur Erneurung des
Bürgerlichen Rechts, Munich 1938, p. 99, and Hans Frank, Rechtsgrundlagen des Nationalsozialistischen
Führerstaates, Munich 1938, p. 21.
The Legal Order of National Socialism 461
nothing but acquiesce in the general conditions laid down by them.
Criticism and suggestions of academic writers notwithstanding, the
general norms and conditions incessantly replace liberty of contract
and make it meaningless.18 But whereas the government took only
an intermittent interest in the conditions under which so·called free
contracts were concluded, it did not hesitate to interfere more and
more with the stages of execution of individual contracts. At first
it limited its interference by refusing the creditor its help in executing
a judgment against a small debtor. Later it went further and
extended to every reliable racial comrade the help of the judge in
getting wholly or pa:rtially rid of the debts he had contracted during
the „pseudo-prosperity“ period or the previous depression.19 The
war decrees generously widened the frame of this legislation. Liquidation
of most of the small creditor-debtor relations, whether they
concern rents, mortgages, doctor’s or furniture bills, was entrusted
to the administrative skill of a judge, who was expected to alleviate
the little man’s burden wherever feasible.20 Contract, therefore, is
steadily disappearing from the legal horizon of Mr. Everyman.
The workers, the small businessmen and the small farmers as well
as the consumers in general have no bargaining power, as they are
prohibited from combining for such purposes. The local representatives
of the Party, of the Labor Front or of the National Socialist
welfare organizations, may find it convenient to recommend a change
in a particular working, wage, distribution or price arrangement.
They may or may not be able to carry their point against the industry
and industry’s bureaucratic spokesmim. But these battles are
fought and compromises are reached over the head of Mr.Everyman.
For him contract has been replaced by the peculiar compound
of private command and administrative order. This compound,
which joins in the same individual undertaking the interest
of private property and of the administration, the private advantage,
li’fhe German literature in this field is increasing. We note only the scholarly
discussion by L. Raiser, Recht der Allgemeinen Geschäftsbedingungen, Hamburg 1935;
the characteristically vague reform proposals by H. Brandt, „Die allgemeinen Ge·
schäftsbedingungen und das sogenannte dispositive Recht,“ in Deutsche Rechtswissen·
schaft, 5 (1940), p. 76; and the cocksure attitude of the respresentative of industry,
C. van Erkelens, „Lieferbedingungen der Industrie im Kampf der Meinungen,“ in
Zeitschrift der Akademie für Deutsches Recht, 1940, p. 367. More interesting than
the theoretical discussion is the attitude of the bureaucracy which favors more and
more the policy to milke standardized contracts universally binding and applicable.
Cf. C. Ritter, „Legalisierung der allgemeinen deutschen. Spediteurbedingungen,“ in
Deutsches Recht, 1940, p. 779, and especislly 1(. Nehring, „Das neue deutsche Speditions.
recht,“ in Hanseatische Rechts·und Gerichtszeitung, 1940, 23 (1940), Abt. A, pp. 75, 80.
„Statute of August 17, 1938, Reichsgesetzblatt, 1938, 1, p. 1033. Cf. H. Vogel, „Die
Rechtsprechung zur Schuldenbereinigung,“ in Deutsches Recht, 1940, p. 1343.
JODecree of September 3, 1940, Reichsgesetzblatt, 1940, 1, p. 1209. Cf. Breithaupt,
„Die Neufassung des Gesetzes über eine Bereinigung alter Schulden,“ in Deutsches
Recht, 1940, p. 1602.
462 Otto Kirchheimer
and the public purpose, is one of the first characteristics of thenew
legal order. Taken in this sense, the National Socialist legal doctrine
rightly claims to have overcome the traditional gulf between private
and public law.21 Free agreement and contract are restricted to the
province of the mighty. Their contract, in turn, has lost its private‘
character, since their working agreements are the basis of the new
constitutional order.
We may venture to define the present conditions of property in
Germany as folIows: the ranks of the proprietary class, controlling
the means of production, are steadily shrinking through such wellknown
devices as concentration, Aryanization, combing-out legislati
on, quota restrictions and closing-down „on account of war emergency.,,
21a Those proprietary elements that belong to the rentier
group suffer from the administration’s control over investment conditions
and rents. They suffer also from the general ability to gain a
foothold in the process of production, which, with the administration’s
active furtherance, has been monopolized by a few powerful
individuals and combines. New property titles are accumulating in
the hands of the newcomers from the ranks of party, army and bureaucracy.
Yet, members of these groups do not always find it advisable
to acquire formal titles to property but find it sufficient for
their purpose to reap the fruit of administrative contro!. The freedom
to transfer property titles and the lack üf onerous inheritance
taxes are intended to perpetuate the property structure as it is developing
from this process of concentration.
The German lawyer has acquired the habit of separating rather
sharply the rules which dominate family life from the realm of contractual
property relations. In fact, it is one of the most frequent reproaches
against the old civil code that its general rules placed business
relations on the same footing as the order of the family; the
National Socialist legislation takes pride in having radically separated
the issues of blood and money,22 It contends that in its new
racial and family law it has prepared a basis for the development of
the racial community, This new legislation excels in two characteristics:
the thoroughgoing extirpation of the J ews and,‘ above aIl, its
outspoken populationist traits. We do not have to dweIl here upon
the anti-Semitic legislation, as it constitutes the most widely known
element of the German legislative and administrative endeavors. The
„‚E. R. Huber, „Neue Grundlagen des Hoheitlichen Rechts,“ in Grundfragen der
neuen Rechtswissenschaft, 1935, pp. 143, 151.
„“Even the German legal Iiterature has to recognize this process. Cf. J. W. Hedemann,
Deutsches Wirtschaftsrecht, Berlin 1939, p. 209: „The distribution of property becomes
more critical or assumes at least other forms.“
„F. Schlegelberger, Abschied 110m B. G. B., Munich 1937, p. 9.
The Legal Order of National Socialism 463
populationist traits of the new family legislation are visible everywhere.
They are evident in the social and welfare policy, with marriage
loans, substantial tax reductions and exemptions and special
family allowances. They are evident in the manifold attempts to
improve the position of illegitimate mothers and children. That
such adjustment measures are due not to moral or humanitarian but
to purely populationist motives, arecent edict shows very distinctly.
This edict orders the school authorities to see to it that illegitimate
children do not feel at a disadvantage psychologically, provided
that .racially and biologically they are not objectionable.23 The exemption
of parents from punishment under anti-procurement statutes
in ca se they allow their children to have pre-marital sexual intercourse
under their own roof has been forced on a recalcitrant higher
judiciary, mainly by the propaganda of the influential weekly of the
55. Blackshirts, Das Schwarze Korps.24 In spite of earlierjudicial
utterances to the contrary, an employer is no longer aIlowed to dismiss
female workers on grounds of pregnancy, regardless of whether
the expectant mother is or is not married.25 This relaxation of conventional
moral conceptions, noticeable everywhere in Germany,
was accompanied by open attacks on some of the most basic doctrines
of the established churches, calculated to keep down to a minimum
any ecclesiastical influence on the social life of the family. Since
millions of Germans today live a barracks life rather than a family
life, the Statefound‘ it easy to encourage „aa hoc sexual relations.
Together with this encouragement went the official endeavors
to minimize legal as weIl as social consequences of illegitimacy.
Such moves could not fail to influence deeply the sex mores of the
German population and especiaIly of German youth, who would, of
course, be more immediately affected. This change in turn was
bound to leave a heavy imprint on the institution of marriage, even
if not a single word of the family law, as contained in the old civil
code, had been ehanged. But, in fact, the govemment subjected
the family law to complete revision in 1938.26
While this poliey generaIly transforms every woman into an
offieial agent of proereation, marriage in particular is regarded as
astate institution to which the main responsibility for raising the
„Edict of the Ministry of Education of May 29, 1940, reprinted in Deutsche Justiz,
102 (1940), p. 1143.
„German Supreme Court, J une 29, 1937, and the new line of thought in the decision
of the Cottbus Schöffengericht of February 7, 1937, in Juristische Wochenschrift, 1937,
pp. 2386·2389.
„German Supreme Labor Court, August 21, 1937, Juristische Wochenschrift, 1937,
p. 3057.
„Statute of July 6, 1938, Reicksgesetzblatt, 1938, 1, p. 807.
464 Otto . Kirchheimer
hirthrate has been transferred. Marriage becomes a husiness relationship,
the success or failure of which is measured in terms of the
production of soldiers and future mothers who live up to the physical
and intellectual standards of the . Third Reich. The Hereditary
Health Courts are instituted to uphold such standards at the admission
into marriage and during its continuance; divorce and annulment
procedures perform the same tasks at its dissolution. Under the
limited divorce facilities granted by the earlier German legislation,
the parties who wanted to separate usually had to reach collusive
agreement which then was registered by the court under one of the
existing legal categories. The new statute of 1938 has opened a wide
field for controversial divorce proceedings by abandoning the principle
of guilt. It has introduced a number of situations in which
circumstances outside the control of the partners are grounds for a
divorce. Foremost is the sterility of either partner, hut contagious
diseases, mental defectsor a three.year separation are also sufficient
grounds for issuance of a divorce decree.27 Whatever progressive
characteristics this statute may have had, they have been completely
submerged in the course of its interpretation by the courts. Not in
all cases may the decisions rendered be as crude and morally shocking
as the following one handed down by the German Supreme Court.
A woman had lost her fertility through an operation necessitated by
an abdominal cavity pregnancy. The husband’s request for a divorce
was granted and a plea of duress was denied to the defendant mainly
on the grounds that the state had an active interest in the plaintifl’s
getting children from a new marriage.28 But such· decisions set
precedents, and it is no wonder that the chief reasoning in divorce
cases gravitates more and more around the rights and duties deriving
from the fulfillment, partial fulfillment, or impossibility of fulfillment
of matemal functions.29 On the one hand, egotistical or
immoral motivations of a partner are encouraged when they happen
to coincide with the govemment’s desire to raise the birthrate.80
But on theother hand, the same official considerations may lead to
the maintenance of an entirely meaningless marriage as areward for
services a mother has rendered to the Stabl by the production of a
numerous progeny.81 It is too early to surmise all the consequences
of this policy. The rise in the rate of divorce and annulment proceedings,
which began immediately after 1933, may ·have been parn
Loc. cit., Art. 50-55. .
„German Supreme Court, September 5, 1940, Deu,tsches Recht, 1940, p. 2001.
„Geiman Supreme Court, June 29, 1940, ibM., p. 1567; July 8, 1940, ibM., p. 1627.
„‚German Supreme Court, May 7,1940, ibM., p. 1362.
„German Supreme Court, March 6, 1940, ibid., p. 1050; March 20, 1940, ibid.,
p. 1049; May 22, 1940, ibid., p. 1363.
The Legal Order of National Socialism 465
tially caused during the first years by the desire of many to avail
themselves of generous facilities for getting rid of Jewish partners.32
Under the new law of 1938, the divorce rate, as was to be expected,
jumped up. In 1939, out of every 10,000 marriages 38 were terminated
hy divorce as against 29 in 1932 and 32 in 1936.33 That
the institution of marriage does not stand to win much hy its instru·
mentalization, which makes it the most convenient hreeding agency,
seems a fairly safe conclusion.
Before we enter into a discussion of the ways and methods peculiar
to the coercive machinery of the Third Reich, let us have a
moment’s look at the personnel which runs this machine and at the
principles according to which it is run. The personnel of the judicial
bureaucracy, espeeially in the higher ranks; still consists overwhelmingly
of the very persons who held office und er, and to the
detriment of, the Weimar Repuhlie. As late as the heginning of 1941,
a lifelong memher of the hureaueracy of the Ministry of Justice, Dr.
Schlegelherger, was appointed Acting Minister of Justice.
Yet, under the traditional eonceptions, the judiciary is only a
concomitant to an estahlished body of laws which it adapts to the
special needs of the community. The procedural formulas which it
develops provide a eertain amount of predietahility.34 The contending
individuals and groups, though they never are sure which of
the many possihle interpretations of their hehavior will prevail in
a given ease, usually could confine their aetions within such limits
that these could not he said to contradict openly the wording of the
law and the procedural requirements of the estahlished courts and
agencies. The husiness of individualization carried on hy the courts
contained a certain amount of rationality, insofar as their decisions
tried to satisfy as many as possihle of the so-called legitimate interests
of soeiety.
The rationality which we ean ohserve in the courts and agencies
of the Third Reich is of quite a different nature. Rationality here
does not mean that there are universally applicahle rules the con-
„As late as 1939 an appeal courthelped a writer to an annulment of his marriage,
reasoning that only after the events of 1938 (vom Rath assassination and November
pogroms) did the appellant get a cIear perception of tbe Iewish question. Munieh, Appeal
Court, December 11, 1939, ibid., p. 327.
„Wirtschaft und Statistik, 1941, p. 37, incIuding some interesting comments showing
how the rise of the birth rate has become the uppermost ofliciill consideration.
„Vide K. Loewenstein, „Law in the Third Reich,“ in Yale Law lournal, 45 (1936),
pp. 779, 782, 814.
466 OUo Kirchheimer •
sequences of which could be calculated by those whom they afIect.35
Rationality here means only that the whole apparatus of law and
law-enforcing is made exclusively serviceable to those who rule. Since
no general notions prevail which could be referred to by the ruling
and the ruled alike and which thus might restrict the arbitrariness
of the administrative practice, the rules are being used to serve the
specific purposes of those ruling. The legal system that results is
rational for them only. This, then, is a strictly Technical Rationality
which has as its main and uppermost concern the question: How can
a given command be executed so as to have the maximum efIect in
the shortest possible time? In arecent speech Reich Minister Hans
Frank, President of the Academy of German Law and Governor
General of Poland, quite correctly compared this kind of rationality
to the working of a good machine. „A smoothly functioning and
technically superior administration is to a chaotic despotism what
precision machinery is to an unreliable makeshift instrument producing
only chance results.“36 Frank wantsthe industrial methods
of taylorism introduced into the realm of statecraft in order to get
the most precise answer to the question as to how the will of the
political leadership can be put into practical efIect as speedily as
possible. Such an attitude is not the wishful dream of a particular
if highly placed individual. Technical rationality simply follows a
pattern drawn by the organization of industry. There, it was not
conceived as a method for production departments only. The now
officially sponsored Dinta (Institute for Scientific Management and
Rationalization of Work), when still owned by representatives of
industry, was the first to introduce the same principle into the business
of human relations.s7 Technical rationality, as dominant over
all governmental organization, precludes the existence of a general
hody of law in which the rules do evolve but slowly. Under the new
system, a legal rule can have only a purely provisional character;
it must he possihle to change a rule without notice, and, if necessary,
retroactively. The Third Reich, with an unlimited legislative and
decree power given the Führer and liberally delegated by hirn to
his paladins, amply provides for such facilities. With this legislative
omnipotence and latitude for delegations goes· also an unlimited
„Cf. the opposite conclusions drawn by E. Fraenkel, The Dual State, New York
1941, wbo holds that the existence of a rational law is necessary for the existence of a
monopoly-capitalist society, overestimating, however, the importance of some isolated
judicial decisions of the earlier epoch. Vide my review of this excellent book in Politico1
Science Quarterir, 56 (1941), p. 434.
„H. Frank, „Technik des Staates,“ in Zeitschrift der Akademie für deutsches Recht,
1941, p. 2f.
IT As to the Dinta cf. F. 1. Neumann, Behemoth. The Structure and Practice 0/
National Socio1ism, New York 1942, p. 429.
The Legal Order of National Socialism 467
willingness to abandon any pretense of logical coherence. Out of
every individual situation the maximum of advantage must be drawn,
even if the second step contradicts the premisesunder which the
first was taken.38 Moreover, technical rationality makes it necessary
to search always for the shortest ways of transmission from the
top to the bottom. That too has been taken care of. Once an agreement
is reached by the mighty of the realm and promulgated under
the Führer’s authority, there is no intermediary organ which could
venture to arrest or delay its execution. No court has the right to
contest the constitutionality or legality of any legislative enactment.
Whereas the judge is given a certain amount of leeway to
examine the extent to which anterior legislation conforms to the
National Socialist principles,39 he is emphatically discouraged from
making similar inquiries into any piece of Nazi legislation.40 In
short, the idea of technical rationality which underlies the new governmental
organization actually finds its nearest approximation in
a perfectly running, though complicated, piece of machinery. Nobody
save the owners are entitled to question the meaningfulness of
the services which the machine performs: the engineers who actually
operate it have to content themselves with producing immediate
reactions to the owners‘ changing commands. They may be ordered
to proceed more rapidly or more slowly, they may be ordered to
change some technical processes and to attain some variations in
output. The purport of the results achieved lies beyond this kind of
rationality, which is aimed only at the certainty that every order
will produce an exactly calculable reaction.
In its judiciary the Third Reich has created an almost perfect
tool for the realization of its orders. For reasons we have already
explained before, the judiciary has lost much of its earlier jmportance
as an agency for deciding differences between various groups
and between individuals. The judicial statistics amply prove this
thesis. With the above mentioned exception of matrimonial cases,
the number of legal procedures shows a startling decline. Thus, for
instance, the roles of those courts which had jurisdiction over civil
disputes involving 500 RM or more show a decline from 319,000
cases in the prosperity year of 1929 to 112,000 in 1937.41 That
„Cf., for instance, the Decree of March 27, 1941, Reichsgesetzblatt, 1941, I, p. 177,
which legalizes until Deeember 31, 1942, the practiee of Aryan s\leeessors to lewish
business eoncerns carrying on their premises the name of their J ewish predeeessors
side by side with their own.
„On National Socialist „equity“ cf. K. Loewenstein, op. cit., p. 804.
„German Supreme Court, June 17, 1940, Zeitschrift der Akademie für Deutsches
Recht, 1940, p. 304.
„Deutsche Justiz, 100 (1938), p. 1140.
468 Otto Kirchheimer
does not necessarily mean that the courts are going out of business.
But they have thoroughly changed theircharacter. From independ·
ent agencies of society, able to throw their weight with any of the
contending social groups, they have turned into executive agencies
of the government. They are· employed with preference where a certain
amount of individualization is desired. As such they clear up
the debtor-creditor or producer-consumer relation, and as such they
decide many of the issues which come up in the course of the racial
legislation.
As the law, decree, or edict on whose authority the judge bases
his decision can be changed without delay, an inopportune decision
of bis has only the effect that the legal rule will be immediately
changed. In the realm of criminal law, the stake of the authority
of the state is too important to allow an undesirable decision to go
unchallenged. The war legislation has, therefore, introduced the
possibility of changing every individual criminal judgment in the
desired direction. A Special Section of the Reichsgericht is directed
to take up the case again and revise the decigion42 in the direction
desired by the Führer as indicated by the Oberreichsanwalt. The
first case to be carried before the Special Section was as folIows: A
man known for a long time to be a homo sexual had profi ted from
the blackout to force a younger man to become the object of his
desires. A Special Court had sentenced the offender to hard labor.
There are no appeals by either the defendant or prosecutor from sen·
tences imposed by the Special Courts. Nevertheless, under the new
law, the case was reopened before the Special Section of the Reichsgericht
at the request of the Oberreichsanwalt and terminated, as
desired, in a death sentence.43
Adecision which is disadvaritageous to government interests,
though rarely apt to be forthcoming, is frequently of neither legal
nor social consequence for the establishment of a precedent for future
cases arising in similar circumstances. In addition the judge,
like any other administrative official, is accountable for the contents
of his decision. Where the relentless pressure of the party
through channels like the Schwarze Korps should prove of no avail,
the new organizational statutes provide ample facilities for dis-
„Decree of September 16, 1939, Reichsgesetzblatt, 1939, I, p. 1841. Cf. W. Tegtmeyer,
„Der ausserordentliche Einspruch,“ in Juristische Wochenschrift, 1939, p. 2060, and my
articIe „Criminal Law in National Socialist Germany“ in this periodical, VIII, pp. 444H.
„German Supreme Court (Special Section), December 6, 1939, Zeitschrift der
Akademie für deutsches Recht, 1940, p. 48, with comment by Klee.
The Legal Order of National Socialism 469
charging or transferring a recalcitrant judge.44 The judiciary is
entitled to have and to express opinions of its own only in those cases
where it does not act as a kind of common executive organ to the
combined ruling classes. There are some boundary spheres where
the distribution of power between the mighty of the realm has not
been finally settled. The judiciary, for instance, may trespass into
the sphere of the party andtry with varying success to apply the
general rules of civil and criminal responsibility to acts of party
officials.45 The party, of course, does not stand by passively in such
jurisdictional conflicts, and presses forward vigorous attacks of its
own against the bureaucracy. Right now it uses the party.dominated
police as a cover to wrest flom the judicial bureaucracy the com·
plete control of the criminal police and, therewith, the final direction
of criminal prosecution.46 Generally speaking, however, the in·
dustrialists and landowners, party and army, as weH as the cor·
responding bureaucracies, jealously see to it that nobody trespasses
into the provinces carved out for each by common agreement; the
tendency is, therefore, towards departmentalization, towards disap.
pearance of a unified system of law behind innumerable steadily
increasing special competences. H technical rationality is neverthe·
less to be preserved, two conditions have to be fulfiHed. First, every
official agency must grant recognition to an official act of other
public agencies. 5econd, each of these groups must be equipped
with a penal power of its own in order to execute swift reprisals
against malefactors in its own sphere. The party has established
its own jurisdiction over its members and over its special sub·
divisions like the 55;47 the army achieved the reestablishment of
„Judges are subject to the provisions of the Civil Service Statute. Vide A. Brand,
Das Deutsche Beamtengesetz, Berlin 1937. p. 462. Regarding the possibilities of trans·
ferring judges to other jobs. cf. the Decree of September 1, 1939, Reichsges8tzblatt, 1939,
1, p. 1658, and especially Art. 4,3 of the „Decree on the Organization of a Supreme
Administrative Court“ of April 3. 1941, ibid., 1941. 1, p. 201. For an interesting defi.
nition of the meaning of judicial independence under National Socialism, cf. Hans Frank,
„Reichsverwaltungsgericht,“ in Deutsches Recht, 1941, p. 1169.
„A. Lingg, Die Verwaltung der NSDAP, Berlin, 1940, p. 257. The right of the courts
to pass on this question is upheld by S. Grundmann, „Die richterliche Nachprüfung von
politischen Führungsakten,“ in Zeitschrift für die gesamten. Staatswissenschaften, 100
(1940). pp. 511ff., and by the German Supreme Court. February 17, 1939. Deutsches
Recht, 1939, p. 1785.
„W. Best. Die Deutsche Polizei, Darmstadtl940. p. 28, against which E. R. Huber
is polemizing in his review, in Zeitschrift für die gesamten Staatswissenschaften, 101
(1941), p. 723, where he gives the legal and administrative arguments of the higher
bureaucracy in its fight to restriet Party inßuence.
„One of the first statutes of the Third Reich, dated April 28, 1933, Reichsgesetzblatt,
1933, 1, p. 230, enables the Führer to institute special disciplinary and penal courts for
the SA and SS. Cf. also the Decree of October 17, 1939, ibid., 1939, 1. p. 2107. That
the Party. even under actual war conditions, does not relinquish its grip upon its special
formations becomes‘ evident from the Decree of April 17, 1940. ibid., 1940, 1, p. 659,
which takes the jurisdiction over members of SS formations in the armed forces away
from the court martials and transfers it to the SS Court in Munich.
470 Otto Kirchheimer
its own court martials as one of the first rewards of the new
order;48 the industrial groups and chambers as weIl as the official
organizations of the Food Estate can levy fines of their own; the
Ministries of Finance and of Economics and the Price Commissioner
also have been equipped with extensive powers to fine. 49 The latest
newcomer in this list is the compulsory Labor Service. By decree
of Nov. 17, 1940,50 extensive penal powers, which for some time
it had been exercising „illegaIly,“51 were confirmed to it. This
list of exemptions and penal privileges is not given merely for
curiosity’s sake. With the one exception of the penal privileges
granted to the bureaucracy of the Ministries of Finance and Economics
which allows powerful individuals to buy off their penalties
without adverse publicity and thus make the business man prefer
this kind of administrative jurisdiction to the general one of the
criminal courts, this development appears as a death-warrant to
individual rights.
The separation of functions between the employer and the
coercive machinery of the state was one of the main guilfantees of
individual liberty in a society where an ever diminishing number of
people controlled the means of production. This separation is swept
aside when the organizations-Party, Army, Food Estate, Labor
Service-on whose attitude depends the social existence of the individual,
are able to bolster up their commands with a, so to speak,
„company-owned“ disciplinary and penal power. It is at this point
that the inroads of the National Socialist machine into the daily
life of the average citizen appear the most striking and that absence
of an outside agency willing and able to sift the individual’s grievances
will bring tl-e greatest moral and material hardship.
The repressive activities of this joint enterprise, officially ca lIed
the Racial Community, are exercised by the already mentioned
special agencies, by the so-ca lIed People’s Court, the Special Courts,
the regular eriminal courts, and last but by no means least, by the
party-domina ted police. The police has a special and comprehensive
jurisdiction: it may kill or imprison for an indeterminate
time persons whom it thinks to be inimical to the people’s welfare,
without ta king the trouble of handing them over to other
agenciesG2 for examination of the merits of the case. It may
„Statute of May 12, 1933, ibid., 1933, 1, p. 264.
„Cf. K. Siegert, Wirtschaftsstrafrecht, Berlin 1939, and the Decree of April 6, 1940,
Reichsgesetzblatt. 1940, 1, p. 610, regulating the procedure in regard to contraventions
in the sphere of distribution.
„‚Tbid., p. 1513.
„Cf. my article, [oc cit., p. 453, note 3.
„W. Best, „Die politische Polizei des Dritten Reiches,“ in Deutsches Verwaltungsrecht,
Munich 1937, p. 417.
The Legal Order of National Socialism 471
likewise apply the same technique after the other agencies have
relinquishedan accused person, either after he has served his time
or has been acquitted. The latter does not happen too frequent)ythe
rate of acquittals in the regular criminal courts has gone down
from 13 % in 1932 to 7 % in the second quarter of 1940.53 The
procedures followed by the agencies of repression correspond in the
highest degree to the already formulated principles of technical
rationality. To attain the results desired by the government with the
maximum speed and with the greatest possible degree of accuracy,
criminal procedure, that part of the law that was the most formalized
hitherto, now had to become its most formless one.54 Careful preparation
was sacrificed to speed, all possibilities for effective defense
were abolished,55 the functions of the judge, traditionally the central
figure in a Germancriminal trial, completely receded behind those
of the prosecutor, and, finally, the opportunities for an appeal were
severely curtailed and often completely abolished in capital cases.
The same technical calculation dominates the methods applied to the
different categories of offenders. The substantive penallaw has been
equipped with a network of conceptions which with every succeeding
legislative enactment hecome broader and le·ss definite. 56 Within a
framework sufficiently broad to include easily every supposed wrongdoer,
the government has unlimited latitude to be lenient or brutal.
It has shown the utmost leniency against the small fry in general·
and against every criminal in its own ranks. A most generous succession
of general amnesties and general noUe prosequi, repeated
fairly regularly every second year, was turned out to the benefit of
thehost of wrongdoers of little consequence, granting absolution of
nearly every crime committed by overzealous party members.57 Directed
likewise by the desire to enrol as large as possible a number
of racial comrades into the regular labor process, the government
passed on November 17, 1939, and complemented in 1941, some
enlightened rules which allow criminals, after a certain period, to
„Wirtschaft und Statistik, 1941, p. 247.
„Cf. the somewhat melancholie reBections of G. Dahm, „Richtermacht und Gerichts·
verfassung,“ in Zeitschrift für die gesamten Staatswissenschaften, 101 (1941), p. 287.
„As regards the limitations set to the lawyer’s representation of bis client’s interest,
cf. the much pub1icized Groepke case, Deutsches Recht, 1941, p. 918.
„Cf. R. Freisler, „Rechtswahrer·Gedanken zum Kriegsjahr 1940,“ in Deutsche lustiz,
103 (1941), pp. 6, 17. Cf. also the Decree of September 7, 1939, Reichsgesetzblatt,
1939, 1, p. 1683, forbidding listening to foreign broadcasts, which penalizes the spread.
ing of news which might weaken the power of resistance of the German people, with
the comments in Deutsches Recht, 102 (1940), p. 1415 .
.. As regards the earlier amnesties cf. my article, loc. cit., p. 457. A new amnesty has
been granted at the beginning of the war by a decree of September 4, 1939, Reichsgesetzblatt,
1939, 1, p. 1753. No figures have been published, however, as to the
effects of this amnesty.
472 Qtto Kirchheimer
pass as not previously convicted.58 The same viewpoint has dominated
for a long time the National Socialist attitude towards juvenile
crime, where reformation long rernained the official slogan. Still,
in 1940, thanks to the combined eft“orts of the youth and the labor
authorities, who were eager not to lose a single part of their most
precious capital, labor power, fines and short term imprisonment for
juvenile criminals were replaced by a special light and short form
of detention. ~9
However, long before the beginning of the war this policy was
overshadowed by the increasing brutality which became the rule
against an those regarded as criminal enemies of the people at
large. The number of enemies who did not find mercy continued to
increase. In the beginning these comprised mainly habitual and
professional crirninals who were taken into preventive custody, as
wen as tiaitors who were believedto have menaced or to threaten to
menace the interna I and external security of the Reich. Soon this
category of enemies of the people was extended to cover the new
crime of „race defilement“ and was applied to the ever increasing
body of sex offenders, which seems to have arisen from the general
brutalization of sexual morality. Now, after two years of war, the
list of enemies of the people’s community who have to be extirpated
to protect the horne front, comprises those perpetrating almost every
type of criminal act if committed by means of violence60 or as an
exploitation of the state of war. It comprises, too, violations of the
War Economy Decree of September 4, 1939.61 In this connection the
Führer claimed that in this war, for the first time in history, the princi
pie by which the merchant made his gain, whereas the soldier
died,62 had lost its validity. As if to confirm this, the German newspapers
are at present announcing the first death sentences for usury.
But since Sec. 25,4 of the above-mentioned War Economy Decree
„Reichsges~tzblatt, 1939, 1, p. 139, and the announcement in the Frank/urter Zeitung,
September 12, 1941. Cf. also M. Wachinger, „Die Wirkungen der Tilgung eine.
Strafvermerks,“ in Deutsche Justiz, 102 (1940), p. 863.
„Decree of October 4, 1940, Reichsgesetzblatt, 1940, 1, p. 1366. Cf. also Rietzsch,
„Neuordnung des Jugendstrafrechts,“ in Deutsches Recht, 1940, p. 698. Contrast the
Decree of October 4, 1939, Reichsgesetzblatt, 1939, 1, p. 2000, which tend. 10 deprive
juveniles in the more serious cases of the privileges granted in the special juvenile
jurisdictions.
„For an extensive interpretation of the term „weapon to cut and thrust“ as including
the use of the bare fist, cf. Stuttgart Special Court, February 1, 1940, Deutsches Recht,
1940, p. 44l.
„‚Reichsgesetzblatt, 1939, 1, p. 1609. .
„Cf. „Bekanntmachungen über die Bekämpfung der Preistreiberei,“ Executive Decree
of January n, 1941, Deutsche Justiz, 103 (1941), pp. no, 112, which contains detailed
instructions as to· the procedure to be foIIowed in the ease of offenders of the War
Eeonomy Decrees.
The Legal Order of National Socialism 473
exempt~ cartel prices, it is obvious that the main war profiteers are
in no actual danger of punishment. But as a means of popular op·
pression and general deterrence rather than of monopoly control the
death penalty has become fairly widespread during the last two
years. There are no accurate figures available. The published sta·
tistics, even if accepted as accurate, cover only the number of of·
fenders convicted through the channels of the special and regular
law courts, which probably means that they embrace only a sma11
percentage of criminals liable to death penalty. For tlie sake of comparison,
however, those figures are important in that they indicate
a sharp increase in the use of the death penalty. In the fo11owing
figures th~ number of convictions for murder is compa.red with that
of death sentences in general. In 1937 the quarterly average of a11
convictions for murder, attempts at or participation in murder, was
45, as against a total of death sentences for an crimes, inc1uding
murder, of 14; the quarterly average for 1939 begins to show an
inverse ratio between murder convictions and death sentences, 34
murders as against 39 death sentences, and the known figures for the
second quarter of 1940 show only 14 sentenced murderers, but 80
death sentences. 63 The death penalty thus covers a steadily widen·
ing range of so-ca11ed criminal behavior.
Relatively late German writers and officials have realized that
the complete subjection of criminal law and procedure to the idea
of technical rationality. is bound to shatter completely the specific
protective functions inherent in traditionallaw; and the hope is being
expressed that it might be possible, after the war, to reconcile what
we ca11ed Technical Rationality with somewhat enlarged protective
devices and guarantees.64 Yet, it stands to reason that a system of
law which seeks to operate by technical rationality and which at the
same time attempts partial retention of liberal guarantees-two
mutua11y exc1usive and incompatible objectives since they derive
from different social systems-must soon exhaust itself. The
social processes that have taken place under National Socialism provide
the explanation of the changes which the legal system has undergone.
The concentration of economic power which characterizes
the social and political development of the Nazi regime crystallizes
in the tendency towards preserving the institution of private property
both in industrial and agricultural production, whilst abolishing the
correlative to private property, the freedom of contract. In the con-
„Wirtschaft und Statistik, 1939, p. 553; 1940, p. 557, and 1941, p. 257.
„G. Dahm, op. cit., and Hans Frank, „Die Aufgaben der Strafrechtserneuerung,“ in
Zeitschrift der Akademie für Deutsches Recht, 1941, p. 25. .
474 Otto Kirchheimer
tract’s place the administrative sanction now has become the alter ego
of property itself. Equality of law and freedom of contract tended
to secure protection to everyone who hadacquired legal title to
property. The new system of administrative property relations, while
abolishing the general rules and uniform procedures, shifts the decision
on what property titles may be validated to the monopoly-dominated
group.
Within every power grouping, the position of those in control is
enhanced through suhordinating the individual member of the group
to theomnipotence of the group hierarchy that acquires a relatively
autonomous jurisdiction of its own. Thus, in the very structure of
society the rights and privilegesgranted the individual in his own
right are abolished. Intra-group conflicts in which the individual
may fight for the preservation of his claims and legal titles become
an arena of mere force collisions and the economically atomized individual
becomes a mere object of domination by monopolistic group
and estate machines. Simultaneously, legality, no longer serving as
an armor to protect the individual, becomes null and void and dissolves
into technical rationality which now is the foundation of the
structure of legal institutions, of the legal apparatus and of the machine
that applies them, the judiciary.
But then, no rights of the individual have to be preserved and
maintained in spheres outside economicand political life either.
Legal regulation of human relations, whether it be in the sphere of
contractual relations, family life or criminal infractions becomes
suhject to demands of everyday necessities of the totalitarian regime
without mediation or indirect transmission. Necessities of securing
sufficient labor supply preside as directly over legislation on matrimony
as they rule over criminal procedure and substantive criminal
law. Where there is a labor shortage which must be overcome as
soon as possible, no ethical considerations will influence the decision
as to the status of marriage or divorce, and no stipulations of the
criminal code will prevent the government from refraining to prosecute
or from pardoning numerous ofIenders. At the same time, special
categories of ofIenders will be outlawed and victimized to serve
as mementos of the defenselessness of the atomized individual and
of the omnipotence of the groups and machines that run the state with
the assistance of a technicalized apparatus of law and law-enforcing.
The system of technical rationality as the foundation of law and
legal practice has superseded any system for preservation of indio
The Legal Order of National Socialism 475
vidual rights and thus has definitely made law and legal practice
an instrument of ruthless domination and oppression in the interest
of those who control the main economic and politicallevers of social
power. Never has the process of alienation between law and morality
gone so far as in the society which allegedly has perfected the
integration of those very conceptions.

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