Zacharias, L. S.

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Book Review: The Supreme Labor Court in Nazi Germany: A Jurisprudential Analysis

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Law & Inequality: A Journal of Theory and PracticeVolume 8 | Issue 1 Article 81990Book Review: The Supreme Labor Court in NaziGermany: A Jurisprudential AnalysisL. S. ZachariasFollow this and additional works at: http://scholarship.law.umn.edu/lawineqLaw & Inequality: A Journal of Theory and Practice is published by theUniversity of Minnesota Libraries Publishing.Recommended CitationL. S. Zacharias, Book Review: The Supreme Labor Court in Nazi Germany: A Jurisprudential Analysis, 8 Law & Ineq. 309 (1990).Available at: http://scholarship.law.umn.edu/lawineq/vol8/iss1/8BOOK REVIEWThe Supreme Labor Court in Nazi Germany:A Jurisprudential Analysisby Marc Linder*Frankfurt am Main: Klostermann, 1987Reviewed by L.S. Zacharias**Azdak, the intractable judge in Bertolt Brecht's CaucasianChalk Circle,' ultimately commands our respect by looking withinhimself rather than to the authorities who control his livelihood.Yet, through Azdak's story Brecht makes a deeper point: namely,that law has a habit of breaking down and that in entrusting deci-sions about justice to judges we misplace our faith.2 Marc Linder's* Attorney, Texas Rural Legal Aid, Farmworker Division. B.A., University ofChicago (1966); M.A. (1971), Ph.D., Princeton University (1973); J.D., HarvardUniversity (1983).** Associate Professor, School of Management, University of Massachusetts,Amherst.1. The standard English version is in Brecht, Parables for the Theatre: TwoPlays (E. Bentley & M. Apelman trans. 1961).2. Contrast, for instance, the political debate leading to a resolution amongcomrades in Brecht's prologue with his description of Azdak's fortunes:The Story Teller and Chorus:And he broke the rules to save them;Broken laws like bread he gave them;Brought 'em to shore upon his crooked back.And at last the poor and lowlyHad someone who was not too holyTo be bribed by empty hands: Azdak.For two years it was his pleasureTo give beasts of prey short measure:He became a wolf to fight the pack.From All Hallows to All HallowsOn a chair beside the gallowsDispensing justice in his fashion sat Azdak.The Story Teller:But the era of disorder came to an end.The Grand Duke returned.The Governor's wife returned.A trial was held.Many people died.The suburbs burned anew.And fear seized Azdak.Id. at 101-06, 173.Law and Inequalitybook, The Supreme Labor Court in Nazi Germany: A Jurispruden-tial Analysis,3 is a study of the society Brecht had just left, one inwhich law had by all descriptions broken down. Yet, numerouspractitioners continued to engage in something that looked likelaw. Just what, Linder asks, were these people doing? What didthey seem to think they were doing? And what effect did theyhave on the course of social events in Nazi Germany?The book is divided into three roughly equal parts, each fo-cusing on a different element of the Nazi regime's rule, objectivesand constraints. Together, the three parts illustrate with depthand irony the complexities and limits of a positive legal system.The first, introductory part is an account of the jurisprudence thatgoverned the adjudication of labor disputes during the Nazi re-gime.4 Linder focuses particularly on the regime's legal spokes-men, their attempts to dress Nazi political outcomes inconventional judicial garb, and the specifics of the labor courts.The second part reviews the Nazi reconception of labor relations.5Linder describes the Nazi dilemma: on the one side the authorityof Germany's militant industrial capitals, on the other side intrac-table and open class conflict which the earlier Weimar regime hadlegitimated. Both to further the authority of capital and to repressclass conflict, the Nazis refurbished the languishing doctrine of the"plant community." This replaced class-based bargaining rightsand contract interpretation in labor relations law with feudal obli-gations. Finally, the third part considers the Nazi labor courts'treatment of ideologically disfavored plant-community claimants,i.e., communists, socialists, Jews and others.6Linder comes to grips with the larger questions raised by his-torians and philosophers of law, from Radbruch, Hart and Fullerdown to more recent writing, by focusing on the claims of the ideo-logically disfavored within the framework of general labor lawdoctrines and judicial rulings. Was Nazi law a total sham, or inter-nally consistent? To the extent it was consistent, did it reflect anachievement on the part of law and its faithful or was the exercisepointless? Linder's narrative is as haunting as it is compelling.His narrative on the jurisprudential debates among Nazi legalscholars evokes a Machiavellian predisposition to law characteris-tic of United States federal administrators in the 1980s. There is,for instance, little to distinguish the jurisprudence of Ed Meese3. Marc Linder, The Supreme Labor Court in Nazi Germany: A Jurispruden-tial Analysis (1987).4. Id. at 1-94.5. Id. at 95-204.6. Id. at 205-90.[Vol. 8:309BOOK REVIEWfrom that inestimable Nazi legal star, Carl Schmitt, who recom-mended loyalty to Hitler and party as the primary judicial qualifi-cation and the reinstitution of an "original" cultural purity as theprincipal end of judicial service. While a book review of thislength is inadequate to do justice to Linder's book, brief elabora-tion of the three parts may give prospective readers an indicationof the book's scope and richness.Nazi legal scholars had a peculiar problem. While Hitler con-demned "jurists and their science of law," the society's need fordeliberate self-reflection "asserted itself sufficiently to precludeany attempt to eliminate the system of judge-made law."7 The re-gime relied on judges to apply general rules to individual socialevents. Nevertheless, it had to ensure that judicial interpretationof those rules would not conflict with the needs of the Nazi polit-ical economy.8 Generally, those needs fell into three categories:(1) legitimation of Nazi rule as a whole; (2) legitimation of judicialjudgments in terms of Nazi and traditional legal principles (partic-ularly in contrast to that Nazi shibbeloth, "Bolshevik" justice); and(3) certainty in labor relations to resolve disputes arising out of"the accumulation of capital and the competition of capitals."9Above all, the system of rule application had to "objectify" over-arching interpretive principles that would counteract subjective ju-dicial discretion and so preserve "the purity of German blood,German honor and genetic soundness as the basic elements of Naziprivate law."10To secure their aims, Nazi jurists recommended two alterna-tive strategies. First, the regime instituted controls over judicialdecisions. However, Nazi lawmaking was itself idiosyncratic andits ideological content hardly "monolithic, unambiguous, authorita-tive and uniform.""X Accordingly, judges tended to doubt theiroverseers and adhered only loosely to interpretive principles theoverseers ostensibly had derived from Hitler's will or their ownVolksempfinden.12 Second, the regime selected judges on the ba-sis of their devotion to the correctness of Hitler's values. In CurtRothenberger's words, "[t]he more subjectively and exclusively thejudge is bound to the ideas of Nazism, the more objective and justhis adjudications will be."' 37. Id. at 1.8. Id. at 3.9. Id. at 2-3.10. Id. at 3.11. Id. at 412. Id. at 5-6.13. Id. at 4 (quoting Curt Rothenberger, Der deutsche Ricter 53-54 (1943)).1989]Law and InequalityEventually, as Linder shows through his detailed analysis ofNazi labor court appointments, early membership in the Naziparty served as the principal marker for devotion to Hitler's willand Volksgebundenheit.14 Still, between arriving at the latter so-lution and instituting it, Nazi jurists together with their critics, ad-dressed a variety of complex arguments about the law-likecharacter of their system, including its legitimacy, relative auton-omy and internal consistency. Much of the first part of the bookdescribes the debates in detail and places them in their broader ju-risprudential contexts; both German antecedents and more generaldiscussions about Western law and legal systems.15 The last partof the introduction describes the system the Nazis elaborated toconfine, atomize and adjudicate labor disputes.Once Linder has set forth the aims and premises of labor ad-judication during the Nazi regime, he confronts the problem of la-bor law itself-namely, how did judges generate rulings in laborcases that in fact conformed to the requirements of the Nazi polit-ical economy, above all to repress class conflict. In general, theNazis decimated collective bargaining rights statutorily and fur-ther thwarted labor radicalism through the SA and later the SS.16Yet, the regime had to defend against the possibility that thecountless instances of plant leaders exploiting or mistreating indi-vidual workers and groups of workers would renew labor unityand prompt class warfare. In that regard, adjudication served thestate by atomizing general perceptions of exploitation and treatingindividual claims with apparent dignity.17The elaboration of a workable doctrine for securing theseaims was complicated by a combination of received laws and con-ventions in labor relations, divisions among different classes ofcapitalists, and divisions between private capital and the state, bothin its role as coordinator of the economy and its role as em-Rothenberger, like Schmitt, was an esteemed legal scholar who served in the Naziregime. Id. at 6-14. The Nazi lights grappled with the contradictions of reconcilingthe received legal system's autonomy principles with Nazi rulers' objectives.14. Id. at 64-94. Tables 3 and 4 show that by 1938 Nazi party members consti-tuted the majority on the Supreme Labor Court and that, by comparison with Ger-man lawyers in general, most of them had joined the party relatively early in itsdevelopment. Id. at 77-87.15. Linder's explication of the German conception of Rechtsstaat within thelarger context of legal positivism and rule of law is worth noting, especially the dif-fering perspectives of three leftist anti-Nazi German exiles, Ernst Fraenkel, FranzNeumann, and Otto Kirchheimer, on the Nazi's adaptation of the Rechtsstaat totheir own political and economic objectives. Id. at 31-63.16. Id. at 109-10.17. Id. at 119.[Vol. 8:309BOOK REVIEWployer.' 8 Nazi legislation insisted upon the primacy of the plantcommunity under the leadership of the plant manager or entrepre-neur or manager.19 In restoring the economy's faded communitar-ian (or feudal) ideals, the rulers expected to eradicate the self-interested, competitive values inherent in the Weimar Republic'scontractual vision of labor relations. In the context of the plantcommunity, workers had legitimate, albeit limited and residual,claims to general welfare. By continuing to perform their duties asworkers without disruption, they could invoke corresponding du-ties on the part of plant managers to look out for workers' welfare,at least so long as the business of the plant itself was secure.These managerial duties were often the subjects of the litigation.Linder's review of the cases suggests that the courts weresurprisingly solicitous of worker claims and that Nazi labor adjudi-cation was not altogether a sham geared toward worker exploita-tion.20  At the same time, that very finding suggests howundesirably powerful a law-like apparatus may be. The laborcourts' legal authenticity, especially insofar as it diminished theneed for administrative interventions and SA/SS actions, appar-ently contributed to the Nazis' success in sustaining industrial pro-duction and maintaining order.The work of the Nazi labor courts was also fraught with tell-ing curiosities and ironies. Judges, for instance, quite frequentlyslipped back into the language of contract to resolve disputes, inpart because contract doctrine had become so deeply engrained inGerman labor law, in part because the idea of the plant commu-nity was far less real than the combative relationships of capital-ists and workers.2 1 Linder also describes the cases in which Nazileaders had to weigh the costs and benefits of judicial autonomy di-rectly against expedience.2 2 A fifteen-year-old boy claimed lostwages against the state, and the labor court, interpreting the laborcode somewhat formalistically, upheld the boy's claim. The laborministry in turn chastised the court, conceding in effect that theentire adjudication was little better than sham, since state admin-istrators had it in their power to circumvent the court's ruling infuture cases and possibly even with respect to the boy himself.Yet, in a similar case decided soon after, the very same labor min-ister chastised the court for acquiescing too easily in administrativedecisions. Why, Linder asks, did the highest ministerial bureau-18. Id. at 95-110.19. Id. at 110-22.20. Id. at 123-208.21. Id. at 119-22, 138-60.22. Id. at 175-79.19891Law and Inequalitycrats insist on autonomous court review of their decisions whenthe bureaucrats themselves "could manifestly have interpretedtheir own statutory intentions more reliably?" 23 Linder suggeststhat the Nazis' dependence on the law's relative autonomy toachieve legitimacy for their regime may have stood in the way ofexpedience.Finally, Linder examines those cases in which the Nazi courtssought to reconcile the regime's antagonism toward enemieswithin and its preference for handling typical labor disputes con-sistently. The courts had to dispose of the enemies in ways thatwould not undermine the internal logic of their rulings or exposethe whole system as sham. In large part the courts' work waseased by a range of statutes and administrative activities.2 4 Still,cases did arise that put the judges to the test. Linder acknowl-edges that putting too much emphasis on certain of these casesmay take on the appearance of "grotesque academic fiddling." Heobserves "in light of the world-historical murder organized by theNazi apparatus, what purpose does it serve to examine therearguard struggles of a handful of Jews to preserve their pensionrights, holiday pay or entitlement to one month's salary whenfired as a result of anti-Semitic laws or personal prejudice?" 25 Yet,the answers become painfully clear in light of the book as a whole.While Linder contributes enormously to an impression of whatwent on in labor adjudication during the Nazi regime and also toan understanding of why the Nazi labor courts worked as they did,the larger contribution of this work is in its graphic illustration ofthe power and limits of modern law.Linder's study of the courts' treatment of the state's enemiesdraws a persuasive picture of professional rationality-that is, thecapacity of a judicial corps to achieve quasi-autonomous and non-ideological consistency of judgment, even while the values support-ing consistency have been thoroughly uprooted in the society fromwhich the cases spring. This leads at last to what I take as the cen-tral conclusion of this book: that while law offers society tracks tosmooth its ride, it cannot, even at its best, prevent the rulers frompointing those tracks toward hell.26 Certainly, this is not a novel23. Id. at 178.24. The pertinent chapters are arranged by "enemy" classes, i.e., Communists,Trade Unionists, Social Democrats, various anti-Nazi activists, and Jews. Each ofthese chapters includes a description of relevant statutes followed by the cases. Id.passim.25. Id. at 246.26. Linder's study takes the form of a monograph, and so ends somewhat ab-ruptly with an analysis of the labor courts' treatment of Jewish workers. To theextent the book implicates broader conclusions, it does so through the introductory[Vol. 8:3091989] BOOK REVIEW 315conclusion, but few studies, historical or otherwise, have demon-strated the limits of law as we still know it so ably.materials, particularly its elaboration of the jurisprudential debates, and throughthe drifts of the cases themselves. Given the richly detailed nature of the analysis,a broader concluding chapter with an elaboration of the study's implications wouldhave been useful.

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Book Review: The Supreme Labor Court in Nazi Germany: A Jurisprudential Analysis

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