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THE CLEVERINGA SCALE

Two Ways to Be a Lawyer

Leiden University professor R.P. Cleveringa, who made history with a public lecture on November 26th, 1940, when he vehemently protested the sacking of his former teacher E.M. Meijers and other Jewish professors, let his conscience speak again after the war. The second occasion was in relation to an appointment rather than a dismissal, the issue was more complex, there was no public opportunity to magnify his protest, and the majority of people (as is so often the case) had other things on their minds. The second Cleveringa protest thus enjoys significantly less recognition than the first. It turned around the following.

Rudolph Pabus Cleveringa, professor of mercantile law and civil procedural law and dean of Leiden University’s Faculty of Law, who was forced to pay for his objection to the anti-Jewish measures of the German occupier with two periods of six months in prison, became chairman, after the liberation in 1945, of a commission set up to purify Leiden’s student community of traitors and collaborators. Students who had signed the so-called ‘student declaration’, hoping, among other things, to avoid forced labor in Germany, were informed via a radio address delivered by the Minister of Education, Art, and Science on August 24th, 1945, that the government was extremely serious in its plans to sweep the Dutch academic house clean. The minister addressed them in the following words:

The assignees, however, will presently have to accept the consequences of their decision. […] Many of those who had to decide were still very young. A great many, alas, can seek exoneration in the advice of their professors. But none of this changes the fact that they made the wrong decision. They cannot appeal to the national interest that has need of an educated generation. The nation’s honor precedes its interest.

I am not aware if Cleveringa was listening to the radio on August 24th, 1945, but the resolute words of the recently appointed minister—Gerardus van der Leeuw, former pastor and professor of theology at the University of Groningen—will not have gone down very well in whatever way he finally heard them. After all, hadn’t a significant number of the Dutch authorities been particularly accommodating to the Germany occupier? The permanent secretaries, the police, the civil service corps, the professors? But now the students were being forced to take the brunt of post-war reaction with heavy-handed accusations and with ‘the honor of the nation’ being tossed in their faces!

Before looking at what Cleveringa did next, the reader might be interested to know the content of the declaration every student was expected to sign in the spring of 1943:

The undersigned […] hereby solemnly declares on his word of honor that he will conscientiously conform to the laws, decrees and other dispositions in force in Dutch occupied territory, and will abstain from any act directed against the German Reich or the Dutch authorities or engage in any activity that might imperil public order in the institutes of higher education in view of the present circumstances.

Quite an alarming declaration to have your nose rubbed into, and not exactly surprising that the majority of the close to 15,000 Dutch students at the time refused to sign it. More than 2,000, however, did sign the declaration, among them both NSB (Dutch National Socialist Movement) sympathizers and people who were or had been active in the student resistance. Of those who refused to sign, roughly 3,500 were sent to Germany and put to work in the country’s war industry.

But the student declaration of 1943 is far less ominous than the declaration that was presented for signature in 1940—a full two and a half years earlier—to every Dutch government official. It was that declaration, the so-called Aryan Declaration, that directly occasioned the dismissal of a number of Leiden professors and thus also the Cleveringa protest of November 26th, 1940. Here too it is useful to familiarize ourselves with the exact content of the declaration that officials were expected to sign:

The undersigned […] declares according to the best of his/her knowledge that neither he/she him/herself, nor his/her partner/ fiancé/ée, nor one of his/her/their parents or grandparents has ever belonged to the Jewish faith community.

The undersigned is aware that he/she exposes him/herself to immediate dismissal should the preceding declaration prove to be incorrect.

Every civil servant in the Netherlands received two variants of this declaration on October 5th, 1940 and each was expected to fill in and sign one of the two: declaration A, which stated that they were not Jewish and thus Aryan, or declaration B, which stated that they were Jewish. One of the declarations had to be signed and submitted within three weeks; otherwise the person in question was to be considered Jewish. A few weeks after the deadline, thousands of people were dismissed from their public service jobs on the basis of the completed declarations. Cleveringa was also among those to receive such an Aryan declaration in the fall of 1940, first as a deputy judge in The Hague and then as university professor alongside seventy-two of his Leiden colleagues.

Together with fellow professor Benjamin Telders, Cleveringa tried his utmost to persuade if not all then at least a considerable number of the members of Leiden’s professorial corps not to sign, but his efforts were to no avail. All of them signed. The best they were able to achieve for their endeavors was to have sixty Leiden professors include a letter of protest drawn up by Telders when they submitted their completed Aryan Declaration.

The situation wasn’t much different in other departments of the machinery of government. The permanent secretaries, the commissioners of police, the provincial and local civil servants, and even the Supreme Court justices signed the declaration and later stood idly by when Mr Lodewijk Ernst Visser, president of the Netherlands’ highest court of justice, was dismissed from his post by the German occupying authorities on November 21st, 1940 for no other reason than the fact of his Jewish origins.

So it’s easy to imagine why Cleveringa was still troubled to some degree by the entire student cleansing policy in the months that followed liberation. Students who had been obliged in 1943 to declare that they would not imperil the public order at the university were now being threatened with suspension, i.e. exclusion from classes and exams for varying periods of time. The majority of civil servants, judges, and police officials, on the other hand, were simply left to continue their work or resume it, in spite of the fact that they had first facilitated the identification of their Jewish compatriots, then their disenfranchisement and ultimate persecution by signing the Aryan Declaration en masse three years earlier.

The last straw for Cleveringa was the recommendation submitted to the House of Representatives on December 13th, 1945, concerning a number of vacant seats on the Supreme Court. The name P.H. Smits figured on the recommendation, a man who had served as a member of the country’s highest court since 1941 and throughout the remainder of the occupation. While Smits’ judicial talents were never called into question—he had already been recommended for a vacancy in the 1930s—the very fact that he had been appointed by the Nazi Reichskommissar to the Netherlands Arthur Seyss-Inquart was reason enough to make him a controversial magistrate. As court justice during the occupation, moreover, he shared responsibility for a number of questionable and plainly reprehensible judgments rendered by the Supreme Court at the time. It should have been clear to everyone that his reappointment would only serve to further undermine the Supreme Court’s already sullied reputation. The House of Representatives was clearly not wholehearted in approving Smits’ appointment. Three ballots were required, and in the last analysis the appointment was only agreed on the basis of a rather slim majority, 35 votes to 31. Cleveringa was unable to swallow Smits’ reappointment and resigned in protest as chair of Leiden’s Student Purification Committee.

Rudolph Pabus Cleveringa evidently had a built-in moral compass, a conscience so aligned that he was not inclined to hesitation, where others, based on a multitude of considerations and excuses, demonstrated their capacity to accommodate when faced with emerging injustice or injustice that was already burgeoning. In a book review published a few years later in De Gids—the Netherlands’ oldest literary journal—he further underlined his critical stance towards the practice of law during the German occupation, which resulted in an angry letter to the editor from someone connected to the District Court in The Hague. The keenness of his capacity to judge is always in evidence together with the purity with which he deployed his sense of justice. In a time like ours, when some historians consider it fashionable to pretend that it’s impossible to make a distinction between right and wrong, as if morality is nothing more than an opinion with hindsight, it comes as a genuine pleasure to see the needle of Cleveringa’s compass pointing resolutely in the direction of justice, in spite of the solemn and outmoded legal language in which his ideas are expressed.

One might be inclined to wonder where Cleveringa picked up his sense of moral direction. What gave this reputable and meticulous jurist such certainty in the face of historical danger and human injustice, while many other equally reputable and meticulous jurists (and non-jurists) were of the opinion that it was better, all things considered and ‘to prevent worse’, to stay in their jobs and try to make a difference in silence while continuing to support their families? What constitutes the ‘Cleveringa factor’, the factor that transformed this circumspect expert in mercantile and maritime law, to quote Kees Schuyt, into ‘an icon of intellectual resistance against oppression and inhumanity’?

There probably is a biographical or historical answer to these questions, although such would demand detailed research. A psychologizing answer might also be possible, although it would remain speculative by its very nature. To my mind, however, it would be more in the spirit of Cleveringa to suppose that this ‘Cleveringa factor’ is present in everyone, at least in theory. After all, wasn’t everyone convinced to a greater or lesser degree that the decision of the anti-Semitic Nazi regime occupying the Netherlands to employ official forms to identify Jewish civil servants was only the beginning of something much, much worse? Everyone must surely have realized how unfair it was to treat students, who had signed a promise in their late teens or early twenties that they would behave themselves towards the authorities, as if they were traitors and collaborators. And wasn’t it painfully obvious to every Dutch jurist worth his or her salt that the reappointment of a senior justice who had spent four years of the occupation ‘accommodating’ the Germans was a slap in the face of the victims of persecution, the men and women of the resistance and other ‘loyal patriots’? In short, it’s not so much a question of our capacity to distinguish between right and wrong, it’s more about what we actually do when confronted with this difference.

Perhaps the best way to illustrate the ‘Cleveringa-factor’ is to present it in contrast to another figure representing the opposite end of the spectrum, someone we might identify in this regard as an anti-Cleveringa; a brilliant jurist who travelled a diametrically conflicting path, namely that of evil, of amorality, of totalitarian opportunism; a jurist who was the same age as Cleveringa—they were born only five months apart—and whose illustrious legal career in Germany was equal to that of Cleveringa in the Netherlands; a man whose prominence on the black pages of twentieth century legal history is just as conspicuous as Cleveringa’s on the white.

His name is Roland Freisler. After taking his finals at the Wilhelmsgymnasium in Kassel in 1912, he turned his scholarly attention to the study of law at the University of Jena, which he interrupted in 1914 to serve his fatherland and volunteer for military service. He was taken prisoner by the Russians on the Eastern Front in 1915, and it is probable that he returned to Germany only in 1920. He defended his dissertation in Jena two years later—on the foundational principles of industrial organization—and graduated as a Doctor of Law. He set himself up in legal practice, and via his defense of a number of NSDAP members (Nationalsozialistische Deutsche Arbeiterpartei—known in English as the Nazi Party) he became involved with and joined the party in 1923.

In addition to his legal practice, Freisler was politically active from 1925 onwards, first as city councilor in Kassel, later as a member of the Prussian Landtag (State Parliament). Senior civil service appointments at the Prussian Ministry of Justice paved the way for his promotion to Secretary of State in the Reichsministerium für Justiz after the Nazis seized power in 1933. In this position, he participated in the infamous Wannsee Conference in January 1942. As head of the criminal law department of the Academy for German Law, moreover, he also contributed to the formulation and development of a penal code adapted to the Nazi social order. In that system – and I limit myself here to simple and constitutional terms—the interests of the German nation transcended those of the individual. The will of the German people was embodied in the country’s leader, thus focusing absolute legislative, executive and judiciary power in a single person.

One consequence of the National Socialist vision of society and law was the existence of the so-called Volksgerichtshof or People’s Court in Berlin. The Volksgerichtshof was first established by Adolf Hitler in 1934 out of dissatisfaction over the outcome of the Reichstag Fire case. Two years later, the court’s jurisdiction was extended from instances of treason and high treason to the adjudication of political crimes in general, activities, in other words, that the Nazi regime considered undesirable. Of this Volksgerichtshof Dr. Roland Freisler became president on August 20th, 1942.

The Volksgerichtshof consisted of a number of chambers (referred to as ‘senates’), each of which consisted in its turn of two professional judges appointed by Hitler and three lay justices. It goes without saying that the latter were always faithful party functionaries. Suspects were not allowed to choose their own lawyer, legal proceedings were conducted and settled at a furious tempo, and Freisler himself devoted much of his energy during court sittings to intimidating suspects as much as he could and disconcerting them. The thousands of people condemned to death by the Volksgerichtshof during the years of the war included men and women who were active in anti-Nazi resistance, such as the members of the Die Weisse Rose or The White Rose, the Rote Kapelle or the Red Orchestra and the Kreisauer Kreis or Kreisau Circle. The conspirators responsible for the failed attempt on Adolf Hitler’s life on July 20th, 1944 were also tried by Roland Freisler’s Volksgerichtshof. A number of recordings of the interrogations can be found on YouTube, filmed in the courtroom itself on Hitler’s orders. The restructuring of the administration of justice to accommodate political terror went so far that not only those who committed or contemplated armed resistance were brought before the Volksgerichtshof. In addition to treason, deeds and statements that were considered ‘a threat to the defensibility of the German nation’ were sufficient to occasion a summons.

One example from among very many relates to the gifted Dutch pianist Karlrobert Kreiten, who had studied under Claudio Arrau, among others, and performed with success under the baton of Wilhelm Furtwängler. During a concert series in Berlin in 1943, Kreiten stayed with a childhood girlfriend of his German mother. During dinner, however, he made a few negative remarks about Adolf Hitler, describing him as shameless, sick, deranged. The lady of the house considered it her National Socialist duty to ask the advice of a couple of friends as to whether she should take the matter further. The ladies thought she should, and as a result an official complaint was lodged that led to Kreiten’s arrest on May 3rd, 1943, the eve of a concert he was scheduled to give in Heidelberg. He was held in custody for four months and then sentenced by the First Senate of the Volksgerichtshof, under the chairmanship of its president, Roland Freisler. The court condemned him to death. Appeals for clemency, petitions, and even a personal intervention on the part of Wilhelm Furtwängler, were to no avail. Kreiten was executed on September 7th in Berlin’s Plötzensee prison, one of the thousands of victims of a perverted legal system appropriately styled Terrorjustiz or justice by exercising terror.

Roland Freisler was the personification par excellence of such German Terrorjustiz. He was fanatical, prejudiced, and inclined to indulge in long humiliating tirades against the suspects who appeared before him. The shrieking voice that carried his tirades earned him the nickname ‘raging Roland’, and the technicians charged with recording court proceedings had a hard time regulating the volume in such a way that he could be understood. He did not permit suspects to appear in court clean shaven and even insisted on occasion that their belts and suspenders be confiscated, leaving them scruffy looking and down at heel. He thus ranted against retired army general Erwin von Witzleben—one of the men involved in the attempted assassination of Hitler on July 20th, 1944: ‘You dirty old man. Why are you constantly fiddling with your pants?’

Rudolph Pabus Cleveringa and Roland Freisler. It’s almost painful to reference both names in a single sentence. While they may have been contemporaries, their lives were poles apart. Nevertheless, they were both eminent jurists, and both, by coincidence, specialists in mercantile law and procedural law. One worked as a company lawyer, the other as an attorney; both were judges and both were professors of law. If Freisler symbolizes absolute zero on the justice scales then Cleveringa must surely represent the highest point thereof. Confronted by such extremes, one is inclined to wonder whether it is even possible to include both these jurists under a single system of morality.

Perhaps inspiration can be sought from the way the Swede Anders Celsius arrived at his calibration of the thermometer. He took the melting temperature of ice and the boiling point of water and he divided the difference between both temperatures into a hundred degrees. As a result, we all know what we mean when we say it’s 18° Celsius outside. In a similar manner we could divide, by way of a thought experiment, the distance between Freisler’s absolute zero and Cleveringa’s highest point into one hundred degrees, thus providing ourselves with an instrument or scale to measure the moral demeanor of jurists.

Let’s put the ‘Cleveringa Scale’ to the test. When Fred Teeven, State Secretary for Justice in the present Dutch legislature, declared that the killing of a burglar by a resident may be unfortunate, but that it is ‘one of the risks’ burglars are taking, where on our scale would we be inclined to locate a jurist who makes such statements? And what should we think of Amsterdam lawyer Bram Moszkowicz, who claimed that he was under no obligation to adopt the professional standards expected of lawyers? Or of Dutch Minister of Justice Ivo Opstelten who launched a plan to give the government the authority to tap into private computers? The same minister Opstelten who posed in full regalia for an official photo with all the presidents of his tribunals and courts of justice, while Montesquieu’s trias politica principle states with sufficient clarity that they are not his tribunals or courts of justice? What would these lawyers score on the Cleveringa scale? 83? 76? 98?

If Cleveringa’s exemplary attitude during and after the war has anything to teach us—certainly when offset against the ink-black counter image of Roland Freisler—then it has to be that only one thing matters when the hour of truth comes: it’s not about what you say you’re going to do, nor what you’ll say afterwards in hindsight, but what you actually do at the moment it has to be done. Such decisive action at the right moment is referred to in German by the handsome term Zivilcourage, a word roughly equivalent to the English ‘courage of one’s conviction’. The hypothetical Dutch equivalent burgermoed doesn’t appear in recent editions of the standard Dutch lexica. The German term might best be translated ‘heroic courage in plain clothes’, or in other words, acting with heroic courage without a uniform.

Heroic courage is difficult to assess when we associate it with soldiers and civilians; and the same is true for professors in gowns and judges in court regalia. Intangible powers and phenomena need a scale against which we can evaluate their efficacy, to be able to inform one another—also across generations—how dire or how innocent it was. Earthquakes are measured according to the Richter Scale, allowing us to compare the Lisbon earthquake of 1755 with the San Francisco earthquake of 1906. Wind-force is measured on the Beaufort Scale, an instrument that likewise facilitates universal comparisons. The Cleveringa Scale should allow us henceforth to assess the moral character, ethical vigor, and sense of justice of those engaged in the legal profession.

Such rankings, of course, are far from easy to apply. A great deal of heated discussion is likely to accompany any attempt to determine a lawyer’s place on the Cleveringa Scale: should it be 78 or 53 or 91? But I am personally inclined to consider debates of this sort as something to look forward to. European Commissioner for Justice Viviane Reding has recently moved in a similar direction with her call for a ‘justice index’ applicable in every member state. While earthquakes and storm winds are brute and inarticulate forces of nature, the true beauty of a Cleveringa Scale might be that it could allow us, on the basis of such a ranking, not only to assess others, but in particular also to assess ourselves; jurists or not.