Free The Law Under the Swastika by Michael Stolleis Page A

regime. Between 1937 and 1944, it imposed the death penalty on 5,191 defendants.
    As for the Verwaltungsgerichte, when they made occasional attempts to review measures taken by the Gestapo (Geheime Staatspolizei, the secret police), they were stripped of their jurisdiction in “political matters.”
    The other courts adapted to the new situation as well, occasionally adopting the new political language merely to hide behind it. Although the courts as a whole did not offer any significant resistance, it is notaccurate to describe them collectively as “Hitler’s willing instruments.” The picture painted by scholarship is becoming increasingly differentiated and complex.
    During the war, the judicial system was drastically curtailed. Stages of appeal were shortened or abolished. The younger judicial personnel were drafted into the military. Administrative jurisdiction ceased almost entirely. Paradoxically, the supreme administrative court, the Reichsverwaltungsgericht, was set up as late as 1941, though it failed to acquire any importance. The rest of the system was dominated by an increasingly harsh penal justice: External and internal pressure transformed it into a true instrument of terror during the war. However, since penal justice still failed to perform its tasks to the regime’s satisfaction, Sondergerichte (special courts) were set up everywhere. During the war they dealt with everyday crime and at times imposed barbaric punishments. There were also the special courts of the military, so-called Wehrmachtjustiz (military justice), which tried to discipline the fighting troops with draconian punishments and thousands of death sentences. Finally, the darkest chapter of the judicial system was the execution, in particular by the SS (Schutzstaffel, “protective force”), of an untold number of people without trials and sentences.
    The Postwar Period
    III. After Germany’s capitulation on May 8, 1945, the Allies assumed “supreme authority” and rebuilt the judicial system from the bottom up. In the process there were characteristic differences between the American, the British, and the French Zones. The Soviet Zone took a separate path altogether, under the domination of Josef Stalin.
    The prevailing statutory law was “cleansed” of Nazi ideas and brought back. Judges were subjected to “de-Nazification” and rather generously restored to their positions. This explains a strong continuity in terms of personnel, which had unfortunate consequences for the prosecution of crimes from the Nazi era. The structure of the courts corresponded essentially to the model of the Weimar period. The Reichsgericht was renamed Bundesgerichtshof (Federal Supreme Court).
    Two years after the creation of the Federal Republic of Germany in 1949, a new court was set up, the Bundesverfassungsgericht (Federal Constitutional Court). Its task is to translate the norms and values of the constitution into law. Like the U.S. Supreme Court, it is supposed to be the “guardian of the constitution.” Its two panels (of eight judges each) have accomplished this task primarily by ruling on complaintsof unconstitutionality brought by individual citizens. These complaints are very popular and have brought the court high renown.
    After World War II, the Federal Republic made an energetic return to the Rechtsstaat and has sought to imbue the traditional—and fairly complicated—structure of the judicial system with a democratic spirit and values. Following the collapse of the political system in the German Democratic Republic in 1990–1991, the West German system was expanded to include the former East Germany.
    The major issues debated today are whether the multi-layered legal protection provided by the German system is too slow and expensive, and how the traditional forms of legal protection can be adapted to the conditions of modern industrialized society.

PART ONE
    The Study of National Socialist Legal History

PART TWO
    Legal Theory and