Law and Lawlessness

Chapter 4 Section 6

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This below is Chapter 4 Section 6:

6. Law and Lawlessness

The Soviet conception of law and of lawlessness results from the basic ideas that were self-evident for Lenin and his comrades-in-arms and from which practical consequences could easily be derived.

In October 1920 Lenin said at a Komsomol congress: “Morality is that which serves to destroy the old exploitative society and to unite all working people.” This definition, in turn, results from the objective of socialism, which is defined as “the general disarmament, eternal peace and fraternal cooperation of all peoples on earth,” as stated in the “Decree on Compulsory Training in the Craft of War” of April 1918. Domestically, therefore, as the Chekist Peters put it, a systematic war had to be waged against the bourgeoisie in order to transform it from a parasitic class into a community of workers, and thus to make it disappear as a class; in foreign policy the transfer of the means of production into the hands of the working class had to be promoted in every conceivable way, thus making the international communist movement the “gravedigger of bourgeois society.” Therefore, the proletarian dictatorship could not be bound by laws, not even by its own, since direct use of force could always be necessary to help the “revolutionary sense of justice” to victory. Thus Trotsky was able to describe the “execution” of the Tsar and his family as a “summary justice” intended to show supporters and opponents alike that the leaders of the proletariat were determined to wage the struggle mercilessly and to accept only the alternative of “victory or utter ruin.” Poems such as the following by Demjan Bedny fit seamlessly into this pathos of cleansing the earth of all injustice and wickedness:

On! On! You people, avenger of the suffering of the earth
Wake up, stand up! Strike dead, strike dead!
Kill all those people’s criminals
You all the robbers of our bread.

This demand may have been poetic exaggeration, but the right of the revolution imperiously demanded the disenfranchisement of its enemies, and Lenin, in a speech to the Central Council of Trade Unions, referred emphatically to Article 23 of the Constitution of the RSFSR, which states that the Soviet Republic deprives individual persons and individual groups of rights that were being used to the detriment of the interests of the socialist revolution, and he continued: “We have openly declared that in the transitional period, in a period of bitter struggle, we not only do not promise freedom to the right and left, but we say from the outset that we will deprive citizens who stand in the way of the socialist revolution of their rights. And who will judge? The proletariat will judge.” But in other statements Lenin made it very clear early on that revolutionary violence must also be directed against wavering and hesitant elements of the working class itself. Law, therefore, could be nothing other than the unrestricted will of the party and consequently of the party leadership, and lack of right was the condition into which all enemies of this will had to be placed by law. Therefore the Cheka also belonged to the sphere of administration of justice; the “people’s judges” were organs of the party that had no independence whatsoever; and the enemies’ lack of rights did not even spare the wives of the long-dead priests, who were deprived of all civil rights and had no right to ration cards. In 1922 the first of the great show trials was held, that of 22 social revolutionaries, and large crowds of children were mustered to chant “death to the social revolutionaries, death to the enemies of the people” in front of the courthouse. Never before in European history had a group of men so completely aligned their will with the will of history and with the salvation of mankind; never before had a ruling class so openly declared its interests to be the supreme criterion of action, since it wanted to be the last of the ruling classes and the portent of the end of all rule. So at the Moscow “student trial” the walls of the courtroom were decorated with slogans like the following: “The workers and peasants judge according to the principles of the class struggle.”— “The proletarian court protects the interests of the working class”— “The proletarian court is the organ of the revolutionary dictatorship.”

Therefore it could not be wrong if the Cheka was in sharp contradiction to all the principles of the rule of law that had developed over the long centuries of European history: police and state authority, judge and executioner in one. In a narrower sense, however, a legal system developed in which courts and public prosecutor’s offices were special authorities and laws formed the basis of proceedings. But the provisions of the RSFSR Criminal Code of 1926 show how little a fundamental separation was introduced.

The humanitarian objectives were implicit in the assurances that the law envisaged measures of “social protection of a judicial, medical or medically ameliorating nature” and did not set itself the task of retribution and punishment; it refrained from inflicting physical suffering or violating human dignity. But the “heaviest measure of social protection” was shooting or “declaring the enemy of the working people,” all of which involved confiscation of property. The offenses described in the 14 paragraphs of Article 58 were almost exclusively “counter-revolutionary” crimes against state security, and they were defined with such vagueness that even an attempt to weaken the “fundamental gains” of the revolution was punishable by death. But the same punishment was also provided, according to paragraph 14, for acts of the same kind “if they are directed against another state of the working people not belonging to the Union of the SSR,” namely “by virtue of the international solidarity of the interests of all working people.” “Treason to the fatherland,” which was also punishable by death, was also defined in paragraph 14 as “defecting to the enemy” and “fleeing abroad”; Section 3 also punished “maintaining relations with a foreign state or individual representatives of it with counter-revolutionary intent” and Section 8 “commissioning terrorist acts against representatives of Soviet power or officials of revolutionary organizations of workers and peasants.” Paragraph 14 even threatened the “willful failure to perform certain obligations” with shooting if there were aggravating circumstances and the intention was to impair the power of the government and the functioning of the state apparatus. But not only acts were considered crimes, but also omissions, and paragraph 1c introduced kinship imprisonment in the event of a military person fleeing abroad, and even punished those adult members of the traitor’s family who had been ignorant with five years’ deportation to remote districts Siberia and the loss of voting rights. Until 1929, Article 12 was worded in such a way that it made the death penalty possible for children from the age of 12, even for theft. The paragraph evidently referred to the “Besprisornyjs,” the neglected children some of whom had formed gangs of thieves, and this article of the law does not invalidate claims that the GPU administratively disposed of such children by the many thousands.

Such an anti-human law with such humanitarian grounds was unique in the world in 1926. And it was followed a little later by the law on the protection of public property, based on which, according to Solzhenitsyn’s report, six collective farmers were shot because they had hayed a meadow that had already been mowed for their own cows. How could there have been a right to strike in such a state, when Lenin, in his last years, had expressly recognized the possibility of a conflict of interests between the workers and the heads of nationalized industry? How could there have been independence of the judges or even a relationship of trust between the accused and their defense lawyers? How could there be any question of objectivity of law and judiciary when in 1932 the Prosecutor General Krylenko even demanded to put an end to the neutrality of chess?

Those who did not belong to an “enemy class” by birth and abstained from all “counter-revolutionary” acts were also granted rights in Stalin’s constitution of 1936 that were missing in the constitutions of Europe: the right to work in Article 118, the right to recreation in Article 119, the right to free education in Article 121. Of course, one could ask whether such a drastic change in the concepts of right and wrong was really worthwhile if in the end only a few rights were created, which were becoming more and more a reality in Western countries on the way to welfare statehood, apart from the right to work, which in practice is a duty to work? And the objections became even more serious if Trotsky was right, who in October 1936 in the Bulletin of the Opposition—from abroad, of course—described social conditions in the Soviet Union as follows: “Some live in barracks and walk in torn shoes , others drive luxury cars and live in luxurious apartments. Some struggle to support their families, others have servants, a dacha near Moscow, a villa in the Caucasus, etc.” Then, however, a ruling class would have secured its rule by identifying with the law in an unprecedented way, and the lack of rights would have been the fate of all working people who had been controlled by “domestic passports” since 1932 and since 1940 could be punished with two years in prison for being 20 minutes late. Or was the target provision of the Penal Code of 1926 to be taken seriously, and were all differences in living conditions only of a temporary nature, because the Soviet Union would soon establish the communist social order and finally overthrow the exhausted world bourgeoisie? Or did Stalin make his power identical with law only because his state would soon have to fight for its very survival?

In Germany, the “rule of law” had a much older and more solid tradition than in Russia: the concept of equality of all citizens before the law had long been associated with the concept of the independence of the judiciary, the public administration of justice, the judicial reviewability of administrative decisions, and the principle of “nulla poena sine lege” [no punishment for things not prohibited] and thus become a reality. Only in this way could social and political struggles be both “publicized” and “tamed,” i.e. both facilitated and brought to non-violence. According to its intention, however, the liberal concept of law was not limited to domestic conditions: it seemed to imply the equality of all people regardless of race, descent or religion. But in this form it proved to be a borderline concept that did not correspond to reality: nowhere in the world do foreigners have the same rights as citizens, even within a state complete equal treatment is not always possible, because in troubled and even more so in revolutionary times, each state treats the same crime differently, depending on whether it has the intention of undermining or bolstering state power, and the fact of court-martial jurisdiction implies an essential difference between soldiers and civilians. Nor can it be denied that the liberal concept of the rule of law leads to a legal monopoly of the state and, as “legal positivism,” cuts the ties with the anthropological basis which alone can legitimize something like “inalienable human rights” and set limits to any arbitrariness in majority decisions.

In any case, of all the legal systems that existed after the First World War, the liberal legal order was undoubtedly the one that granted its own enemies the greatest freedom and the greatest scope for action. In tsarist Russia there was as little of this as in the Islamic countries under the rule of “Sharia,” and the revolution of Bolshevism retained precisely this principle of unequal treatment of believers and unbelievers, indeed it intensified it in a hitherto unknown way.

This fact, which had an impact throughout Europe and especially in Germany, presented the liberal legal system with an elementary decision: should the principle be retained, although the differentness of reality could not be overlooked, or should a new identity of law and reality be sought, by developing principles that better corresponded to the social and state struggle situation? The second alternative was the conception of National Socialism (and before that of Italian fascism): here law was not seen as the only imperfect overcoming of social and state disputes through the peaceful settlement of unavoidable conflicts, so that a coexistence of the different was made possible, but precisely as an expression and instrument of these debates. This has always been at the core of the Soviet and Marxist concept of law, and Carl Schmitt’s doctrine of the state of exception, the insufficiency of the norm and the nature of the political as a friend-enemy relationship was an answer and correspondence. The fate of the Weimar judiciary was decided by the fact that it perceived the communist frontal attack on civil law far more strongly than the National Socialist attack from behind, which at first appeared to be a relief effort and yet arose from a more hostile spirit than that frontal attack because it represented lawlessness certain groups not as a temporary emergency measure to achieve a later and more complete equality of rights and life, but as the expression of eternal rights themselves. However, this view was only gradually worked out and fixed institutionally; the traditional concept of law and the existing legal system remained in place throughout the Third Reich, and Adolf Hitler could not say for a moment that he had definitively won the battle against the “reactionary jurists.”

However, already during the first months of the Third Reich great steps were taken towards a legal system in which law and politics would be identical to each other. The Decree of the Reich President for the Protection of the German People of February 4, 1933 created a special political law that had to work in favor of the ruling party, but it did not differ in principle from comparable measures of the Weimar Republic, such as the Republic Protection Act. On the other hand, the so-called Reichstag Fire Decree of February 28th—the Decree of the Reich President for the Protection of People and State—meant the abolition of the fundamental rights provisions of the Weimar Constitution, and it contained no safeguards for the exceptional character of the measures “to defend against communist acts of violence threatening the state.” In this respect, the rule of law was already been eliminated and permanent martial law was put in its place, which could only be legitimized as a “healthy national order.” Equally important was the abolition of the principle “nulla poena sine lege,” which was already demanded in the cabinet meeting on March 7 with reference to the arsonist Van der Lubbe by the Reich Interior Minister Frick, while the State Secretary in the Reich Ministry of Justice Schlegelberger contradicted in vain with the reference only in Russia and China as well as in some smaller cantons of Switzerland this principle did not apply. The April laws for the restoration of professional civil service and the July laws for the prevention of hereditary diseases also entailed a conscious departure from the principles of the rule of law. The introduction of special courts on March 21, 1933 was only one of the steps taken to create political martial justice; the formation of the People’s Court on April 24, 1934, which replaced the Reich Court in matters of high and state treason, was a preliminary highlight. The actions of June 30, 1934 could only be described as state murders, but even they were justified by the most outstanding legal teacher in the Reich, Carl Schmitt, with the sentences that the legal blindness of liberal legal thinking had made criminal law the Magna Carta of the criminals the same way it has made constitutional law the Magna Carta of high traitors and national traitors; the Führer’s action was not subject to justice, but was itself the highest justice. Carl Schmitt thus pointed in the direction of an over-equivalence that surpassed the Soviet example in thought, just as Hitler’s conduct had already surpassed it in fact in the Röhm case.

Efforts to reform criminal law, which were primarily promoted by the Reich Legal Leader Hans Frank, had more of the aim of opposing Soviet “class justice” with “national justice,” the aim of which was to “maintain the concrete national community order, to eradicate the vermin, to punish anti-community behavior and to arbitrate disputes among the community members.” A democratic tendency could be seen in the polemics against “jurists who were alien to the people” and in the demand that legal work had to be “close to the people and not close to their class.” The “Nuremberg Laws” could easily be reconciled with this way of thinking, because the orientation towards blood as the basic element of the offense had already formed the basis of the Civil Service Act or the “Reich Law on Admission to the Bar” of April 7, 1933, which reduced the number of Prussian Notaries by a full third. The criminal law reform, however, did not get very far as a codified process, and in practice it was carried out more under the table by the Gestapo pushing back the judiciary and by creating a justice-free punishment through administrative incarceration in concentration camps.

But at the outbreak of the war, the “old justice” had by no means been abolished, and the number of prisoners in concentration camps was far from equal to the Soviet numbers; nor were the Jews completely deprived of rights, however much they were certainly under special law and however much the Aryanizations in the economy were no longer very far removed from simple confiscations.

On the contrary, astonishing court decisions were possible in Germany up until the outbreak of war and beyond. As late as May 1935, the contestability of Gestapo decrees was affirmed. Around the same time, the so-called Hohnstein Trial was being held against the SA-Obersturmbannfuhrer Jähnichen and 22 co-defendants who had maltreated prisoners in the Hohnstein concentration camp in the spring of 1933. Despite massive pressure from the party, heavy prison sentences were imposed. As a result, the two lay judges were expelled from the NSDAP, and Hitler remitted the remaining sentence in November 1935.

In the Niemöller trial at the beginning of 1938, the mild sentence of 7 months’ imprisonment in the fortress was imposed, which, moreover, was considered to have been served due to the pre-trial detention. However, the founder of the “Pfarrernotbund” [Emergency Covenant of Pastors] was not released, but was taken to the Sachsenhausen concentration camp as a personal “prisoner of the Führer.”

The public prosecutor’s office brought charges against a pastor in the Rhineland because he had exclaimed “Woe to Germany” at the end of a sermon. However, since he had referred to Rosenberg’s “myth,” the court did not open a main hearing on the grounds the Reich leader’s book was a private work.

Even during the war, the punishment of Berlin Jews who, in the opinion of the party, had behaved provocatively by reporting to receive a special coffee allocation, was rejected.

However, September 1, 1939 did not primarily signify a qualitative change because extremely harsh laws were introduced, which threatened even listening to foreign broadcasts with death, but because Hitler’s decree of September 1 made possible the destruction of “life unworthy of life” and thus indicated that the warlike struggle for existence would now bring his conception of law as a way of fighting everything “sick, decadent, harmful and dangerous” into the realm of appropriate realization. The law in the sense of the lack of rights for all enemies and pests thus became a structural feature of the National Socialist state only during the war and to the full extent after the start of the war against the Soviet Union. Basically, until then there were only beginnings and prefigurations. But as late as April 1942, Hitler was able to deliver a Reichstag speech, filled with seething rage against jurists and civil servants, in which he demanded the authority to disregard “well-earned rights” and even dismiss judges without further ado if, in his eyes, they were not fulfilling their duties. One only needs to imagine for a moment that Stalin made such a speech in the summer of 1942, or even in 1932, to realize how strongly the constitutional basic concept of the rule of law remained in Germany deep into the war.

Thus, a revealing statement by the head of Office III in the Reich Main Security Office, SS Brigadefuhrer Ohlendorf, dated October 11, 1942, did not coincidentally fall into wartime insofar as it polemicized against the Governor General and Reich Legal Leader Hans Frank, who in several lectures presented himself as a pioneer of legal security and judicial independence, but in principle the statements could have been made during peacetime.

According to the National Socialist view, the individual no longer finds his rights in an isolated position against the state, against the community, but only with the community and as a member of the community of his people. Therefore, only those who do not subordinate themselves to the ties to the national community out of inner obligation, but perceive them as an external compulsion, see legal security as threatened. The influence of the political leadership on the activities of the judge could largely be avoided “if the judiciary had at its disposal a corps of judges with a uniform political and ideological orientation.” Such men would no longer be characterized by alienation from the people, but would be able to draw justice from the people’s living sense of justice, without capitulating to the letter of the law or ignoring political demands. The law would then no longer belong to a caste of jurists as a kind of private property, but through the inclusion of the ideological and political demands of National Socialism it would again have become a matter for the whole people.

But with regard to the present, Ohlendorf stated as late as October 1942 that there was no such ideologically shaped body of judges, and in 1939 he could have made these statements with even greater justification. With regard to the law, too, despite the similarity in the basic collectivist approach, the two regimes were more different than similar during peacetime, but here—in contrast to culture—precisely because in Germany those characteristics were better preserved which were still regarded as the hallmarks of modernity in almost the entire world. However, this was not due to National Socialism, but to the resistance against National Socialism, the character of which was not immediately comparable to the resistance against Bolshevism or Stalinism in the Soviet Union.