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German Administration under the Nazi Régime

Published online by Cambridge University Press:  02 September 2013

John H. Herz
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Extract

When the third edition of Otto Mayer's famous treatise on German administrative law appeared in 1924, this dean of the science of German administration remarked, ironically and almost contemptuously, in his preface: “No important additions have been necessary since the editions of 1914 and 1917…. While constitutions wane, administrative structures remain.” This statement being made at a time when the structure of German government seemed to have been changed fundamentally by a world war and a revolution, many considered it a somewhat sour reaction of a conservative and a “specialist,” who closed his eyes to the great changes which had taken place in Germany and sought solace in the apparent stability of the more technical administrative machine.

Today we see that the remark almost perfectly fitted a situation where, under what proved to be a rather fragile constitutional roof, essential bureaucratic forces and governmental structures remained the same as before and were able eventually to thwart the implementation of the new political tendencies. Upon further reflection, Mayer's somewhat casual statement seems to fit the more general relation between the constitutional-political form and the underlying administrative structure which has prevailed in. Continental countries since the French Revolution.

Type
Research Article
Information
American Political Science Review , Volume 40 , Issue 4 , August 1946 , pp. 682 - 702
Copyright
Copyright © American Political Science Association 1946

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References

1 “Gross Neues ist seit 1914 und 1917 nicht nachzutragen ‥‥ Verfassungsrecht vergeht, Verwaltungsrecht besteht.” Mayer, Otto, Deutsches Verwaltungsrecht (3rd ed., Leipzig, 1924).Google Scholar No translation can sufficiently render the sarcasm contained in the expression “Gross Neues.”

2 See points 6 and 9 of the Potsdam “Agreement Concerning the Political and Economic Principles to Govern the Treatment of Germany in the Initial Control Period.”

3 This type of bureaucrat is exemplified in Otto Meissner, who served the Kaiser, the Republic (under both Ebert and von Hindenburg), and finally Hitler in highest ministerial positions. He was found equally reliable by all his masters.

4 In the sense of Karl Mannheim's distinction between the “functional” rationality of a system, i.e., rationality with respect to means and organization, and “substantive” rationality of the end and underlying thought. An “irrational” system or régime may well make use of “rational” means to attain its ends. See Mannheim, , Man and Society in an Age of Reconstruction (New York, 1940).Google Scholar

5 Examples will be supplied below.

6 Fraenkel, Ernst, in his Dual State (New York, 1941)Google Scholar, has applied the concept of dualism between a “normative” and a “prerogative” state to the whole of the Nazi system.

7 On these and court practice concerning the problem, see Boerner, A. V., “The Position of the NSDAP in the German Constitutional Order,” in this Review, Vol., 32 (1938), pp. 1059 ff.Google Scholar; also Marx, F. M., “Bureaucracy and Dictatorship,” Review of Politics, Vol. 3 (1941), pp. 100 ff.CrossRefGoogle Scholar

8 See decrees of March 21 and 27, 1942 (RGBl. I, pp. 179, 180).

9 See decree of September 1, 1939 (RGBl. I, p. 1565).

10 The formal equality between state and party found significant expression in the formal regulations which determined the respective ranks of officials and party functionaries. Thus, on all official occasions, Reich ministers ranked equally with party Reichsleiter, Reich governors with Gauleiter, etc.

11 “Personal identity” between chiefs of police and SS was, however, achieved in the major regional subdivisions of police administration through the creation of Higher SS and Police Leaders for Army Corps areas.

12 This implied above all unrestricted liberty of action in the “political” field, whose limits were determined by the Gestapo agencies themselves, and absence of any judicial and other review of Gestapo measures. It does not mean that the Gestapo did not, as any other administration, proceed according to certain bureaucratic patterns. On the contrary, formal “legalism,” deeply ingrained in German bureaucratic ways, was applied by the Gestapo in a manner which oftentimes led to ridiculous discrepancies between anxious observance of meaningless forms and actual brutality and terrorism. Thus the cruelties inflicted upon concentration camp inmates were based upon detailed “penal and disciplinary codes” issued by the camp commanders, which, as to contents, left, of course, every latitude to brutality, and there were detailed forms to be filled out concerning each instance of “punishment.”

13 Even formally, the distinction here was almost wiped out. Thus, while concentration camps were officially state institutions, the outfits guarding them were SS formations; while detention orders were issued by the Janus-faced Reich Security Office on application of state agencies such as the regional Gestapo offices, camp administration was under the jurisdiction of the Economic and Administrative Main Office of the SS, etc.

14 The actual relation between the influence of representatives of state and party machinery, respectively, can perhaps best be gauged from the composition of the Ministerial Defense Council, the body established at the outbreak of the war as supreme legislative and executive agency below Hitler himself. Its chairman, Goering, who, while a prominent party figure, was less connected with specific interests of the party bureaucracy than with certain industrial interests and the armed forces, was, in a way, “neutral.” Two members, Keitel as chief of the High Command of the Armed Forces, and Lammers, chief of the Reich Chancellery, more or less represented “state” interests in the broader sense, i.e., army and bureaucracy. Funk, Minister of Economics and an old party member, was somewhat in the middle; while the deputy leader of the party (first Hess, then Bormann) and Himmler as SS and police chief represented the interests of the party machinery and its organizations.

15 This was, at least in theory, the attitude of pre-Nazi German officialdom. Actually, as is well known, the authoritarian and monarchistic tradition of the civil service under the Weimar régime frequently induced it to interpret “service to the state” as demanding sabotage of, rather than compliance with, many demands of the democratic government.

16 The relatively low number of officials thus affected can perhaps best be illustrated by the Prussian protective police. In this supposedly most republicanized branch of interior administration, the Nazis found it necessary to dismiss only 1.7 per cent of the enlisted personnel and 7.3 per cent of the commissioned officers.

17 See decree concerning the training and career of German civil servants February 28, 1939 (RGBl. I, p. 371), Art. 2.

18 In this situation there was a significant difference between conditions during the Nazi and Weimar régimes. While under the Republic there was likewise a split between the traditional, monarchistic-reactionary bureaucrats and the political appointees of the régime, it was the former group that kept the initiative, while the “political” officials were at best tolerated and were too timid, or actually too unpolitical, to try to force their views and attitudes upon the other group.

19 See Hitler's speech before the Reichstag, (Reichstag-Verhandlungen, 1942, pp. 109 ff.)Google Scholar and Reichstag Resolution of April 26, 1942 (RGBl. I, p. 247).

20 See Boerner, A. V., “Toward Reichsreform—The Reichsgaue,” in this Review, Vol. 33 (1939), pp. 853 ff.Google Scholar

21 The strongest integration of Reichsgaue was to be found in the annexed Polish territories, which, like the rump Government-General of Poland itself, were considered as being inhabited by what official Nazi doctrine classified as “colonial” populations. See Best, Werner, “Grundfragen einer deutschen Grossraumver waltung,” in Festgabe für Heinrich Himmler (Darmstadt, 1941), pp. 33 ff.Google Scholar

22 E.g., Propaganda Offices, agencies of the Four-Year Plan, and agencies of the Armaments Ministry.

23 E.g., labor, finance, railways, and post.

24 Stuckart, Wilhelm, “Zentralgewalt, Dezentralisation und Verwaltungseinheit,” in Festgabe für Heinrich Himmler, pp. 1 ff.Google Scholar, in particular p. 20.

25 On the earlier reforms, see Lepawsky, A., “The Nazis Reform the Reich,” in this Review, Vol. 30 (1936), pp. 324 ff.Google Scholar; R. H. Wells, “The Liquidation of the German Länder,” ibid., pp. 359 ff.; G. Krebs, “A Step toward Reichsreform in Germany,” ibid., Vol. 32 (1938), pp. 536 ff.

25a This was done as an “economy” measure following Goebbel's appointment as “Commissar for Total Mobilization” by decree of July 25, 1944 (RGBl. I, p. 161).

26 For details, see Wells, R. H., “Municipal Government in National Socialist Germany,” in this Review, Vol. 29 (1935), pp. 652 ff.Google Scholar

27 Decree concerning administration of rural counties, December 28, 1939 (RGBl., 1940, I, p. 45)

28 Decree of August 28, 1939 (RGBl. I, p. 1535), Art. 5.

29 Published in the German press, Apr. 8, 1945.

30 Prussian law of February 10, 1936 (Prettssische Gesetzsammlung, 1936, p. 21), Art. 7.

31 Municipal Code of January 30, 1935 (RGBl. I, p. 49), Art. 113.

32 See decree concerning the establishment of a Supreme Administrative Tribunal of the Reich of April 3, 1941 (RGBl. I, p. 201).

33 See the two decrees concerning simplification of administration, August 28, 1939 (RGBl. I, p. 1535), Art. 4, and November 6, 1939 (RGBl. I, p. 2168), Art. 1.

34 For details, see Kirchheimer, Otto, “The Legal Order of National Socialism,” Studies in Philosophy and Social Science, Vol. 8 (1940), pp. 444 ff.Google Scholar

35 In the case of Jews, it was officially decreed that cases involving them no longer belonged to the courts, but were to be handled by the police. Decree of July 1, 1943 (RGBl. I, p. 372), Art. 1. This was the “legal” basis of their extermination by the Gestapo and SS.

36 In his speech of April, 1942. See above, p. 692.

37 Decree by Hitler of August 20, 1942 (RGBl. I, p. 535).

38 Thierack's own statement in an address to appeal court presidents and prosecutors-general, September 29, 1942 (published in Deutsche Justiz, Oct. 26, 1942).

39 On the occasion of the reopening of Heidelberg University in September' 1945, the philosopher Karl Jaspers succinctly and poignantly put it this way: Dass wir noch leben ist unsre Schuld (“Our guilt is proved by the fact that we are still alive”).

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