Читать книгу The girl that could not be named Esther - Winfried Seibert - Страница 7

This is a story taken from the everyday workings of the legal system under the Third Reich, the Nazi regime. It is limited to a minor event that involved only a few people, but I think it is symptomatic of a much larger story.

The Nazis had no great love for the judiciary; nonetheless, that group certainly did not produce any resistance fighters. Judges just didn’t do that sort of thing. The judges kept up the pretense of business as usual; they adapted. It’s true that they were subject to the pressure of the National Socialist state apparatus. Judges were kept on a short rein by judicial instruction letters that made a mockery of judicial independence. Many of the judges let themselves be coerced, suffering from more or less of a bad conscience, into giving the National Socialist system what they thought was its due because it was, after all, the State.

Thus, for the German judges, May 8, 1945, the date of Germany’s surrender, was a day of liberation. Their grateful commemoration of this event has filled tomes. Unfortunately, these have all gone missing. Or is there more to the story?

In the early post-war years, we were subjected to attempts at forgetting, at concealing, at hushing up, and even out and out lying. The first president of the new Federal Court of Justice created after the war, Hermann Weinkauff, is responsible for a multi-author study of the judiciary in the Third Reich – happily, he never completed it. The book is noteworthy only for its self-excusing tone, not for any attempt at a critical look at the institution. Others had previously described the judges in the Third Reich as victims of their training in legal positivism. They had merely applied the letter of the law as it had been laid down by an unscrupulous legislature. That was the grand illusion of the postwar judiciary in West Germany. The legal historian Bernd Ruethers made the first attempts in 1968 to come to terms in a scholarly way with the distortion of the law and of legal decisions in the Third Reich.

But that is not what this book is about. I am reporting here only about three decisions handed down by the Superior Court in the year 1938, in which it was decided what given names a person could have if he or she was born under the Third Reich. These three decisions by a central court have not yet been subject to scrutiny, even though they lead deep into the secret heart of National Socialist justice. It is often said that, at least in the case of civil law, the judges managed to stand firm against their Nazi masters. After all, civil law concerns itself with everyday matters, such as rent problems, contracts, social issues, and, as we shall see, the question of what names a person could have. But the truth is that the judges did not stand firm on such issues, not by a long shot. Their decisions and their findings formed only small building blocks of the structure of an unjust state, but they were still part and parcel of the injustice that was done.

That injustice prevailed is clear from the decisions discussed in this book. Although not one Jewish person was involved in this legal procedure involving names, under the surface the whole affair was about Jews and nothing else. These decisions and the others cited here formed part of the fight against the Jews, which the Third Reich pursued to the bitter end. Can the judges thus be made to share the responsibility for that horrible end? Can one reproach them with making judgments and decisions that undoubtedly contributed to stripping the German Jews of their rights under the law, decisions that helped pave the way for the final solution? In their decisions, the judges adopted the National Socialist body of thought and thus made it socially and judicially acceptable. Didn’t the language of their decisions, couched in Nazi jargon, contribute to the maltreatment of the Jews in Germany? Didn’t all this lead to the loss of respect for Jews as fellow human beings that played a major role in their destruction?

One could answer — and this is how the answer usually comes out — that nobody could have foreseen the assembly-line annihilation of the Jews that came later. Occasional excesses, yes, one would have to reckon with them, but nobody thought about death camps. That would have far surpassed anyone’s imagination. There is no obvious answer here. Perhaps it makes more sense if one separates the evaluation of judicial decisions from the overarching theme of the final solution.

One has to try to imagine what the fate of the Jews in Germany would have been if the dictates of the court had been followed and the National Socialist dictatorship had not dared to carry out the exterminations. What if the everyday life of German Jews had been determined only by harassment by the bureaucracy and the party with the blessings of the judicial system? How would they have experienced life starting in 1939?

The situation of 1938 would have developed into an ongoing state of affairs. The German Jews would have lived in a state that had undertaken not to protect its Jewish citizens any longer; instead, it would deprive them of their rights under the law and punish them wherever possible. They would have to vacate their homes and move to buildings owned by Jews. This would eventually lead to concentration in a modern ghetto. Contact with the outside world would be unwelcome. Contact perceived as sexual in nature with people of German blood would be punishable by law. Children’s given names would be restricted to an official list issued in 1938. School and university attendance, the use of libraries, and a thousand other things would be forbidden to the Jews. They would not be able to work as physicians, attorneys, real estate brokers, guides for foreigners, or in credit agencies. Even street peddling would be forbidden. Public transportation would be off limits. Synagogues would be burned down. Significant Jewish property or Jewish firms in general would cease to exist. All of this would have been taken away from them, stolen, taxed away, Aryanized. There would be no right to vote; there would not even be any elections – and no hope.

Such are the conditions under which the German Jews were living at the end of 1938. Even without war and extermination, the steady policy of elimination of Jews would have gone on. These were exactly the conditions that the judges, with their verdicts and their decisions, had approved: a master race barely tolerating on the outermost fringe of society a guest people of lepers, deprived of all rights, plundered, despised, and outcast. And prevented from fleeing. Not enough to die of, but too little to live on.

And that would be perfectly acceptable. The purity of German blood would be assured. Any danger of contact with Jews was nipped in the bud, to quote the Superior Court. No half measures here – the separation would be complete and unambiguous. And it would be legal as well because German judges had determined the conditions to be correct under the letter of the law.

That’s what they have to answer for. That immeasurably greater damage would still come – that can be no excuse. The struggle of the National Socialists against the Jews was a war; that is how it was understood and carried out. Matthias Claudius’ lament, It’s war! It’s war! ... It’s unfortunately war, and his closing plea, and I wish it were not my fault, would have been fitting words for many of the German judges. Unfortunately, they weren’t the ones to say them.

If we want to live in a moral state, in a society that does not have to avert its eyes from its own history, then we must face up to this part of the past as well, not overcome it, but come to grips with it.

This is as true for the still virulent past of the National Socialist regime as it is for the more recent German past, for the unjust system of the German Democratic Republic. The necessary grappling with the past cannot be considered closed so long as it is not really over. Trying to prematurely bring to a close the process of honest confrontation with what has gone before comes at the high price of some longlived psychological damage.

This book is not concerned with simply repeating judicial verdicts and decisions. In order to really grasp their significance, it is necessary to conjure up an image of the actual people involved. After more than a lifetime has passed, this is not completely possible, but it will be attempted here. In the end, a frightening normality can be discerned in this story that makes one afraid that we have not really precluded every danger of repeating what has gone before. The language used to describe minorities is a reliable gage here, for the process of violating human dignity begins with words themselves.

A personality like Esther, who played such an historical role, though not through open and above-board negotiations, but through tricks, deception, and misuse of her bodily attractions and of her position, such a criminal prostitute of Jewish race can stand for nothing to the German women of our time and above all cannot be looked on as a personality after whom German parents should name their children.

Kammergericht, 28.10.1938