Tigar and Mage on the Reichstag Fire

Just read a great little article in Monthly Review by Michael Tigar (who is great, but hasn’t written all that much since Law and the Rise of Capitalism and [as can be seen from the comments] has written a lot more than I realised!) and John Mage, on law and Nazi Germany. They note:

While no sensible case can be made that gives any primary causal responsibility to the legal establishment, yet it is very clear that it (or if you prefer “the Law”) presented not the slightest obstacle. Nonetheless the German legal establishment was not irrelevant, it had a secondary but not unimportant role in the debacle. For the Nazis to lead the German nation into a war of aggression and into genocide required their hegemony, the tacit acceptance of the legitimacy of their acts—and of the dutiful observance to their demands—as the lawful rulers of the German state, even by many of those German citizens who disagreed with their policies. Resistance to the Nazis, however, required the quickest possible global recognition of their crimes and the threat they represented to all decent people in the entire world. For one moment in the early days of Nazi rule in Germany a public trial presented a focus in which the German courts provided the Nazis an opportunity to further their hegemony, and the potential to the global resistance of an opportunity to expose the Nazi crimes—the Reichstag Fire trial.

The article examines how the events surrounding the Reichstag Fire were framed by three separate judicial bodies – the pre-trial German hearings; the actual trial and an international commission put together by activists to evaluate the trial. Tigar and Mage constantly emphasise that:

The Nazi leaders and the Bulgarian defendants agreed on one point: This was a political trial. Any effective defense had to acknowledge this fact and confront the reality of Nazi power and influence. Dimitrov’s tactics, from the first witness until the last words of argument at the end, were based on knowing this truth.

The masterful performance of Dimitrov is very instructive:

After Goering’s statement, Dimitrov cross-examined. He peppered Goering with questions. He put questions designed to show that Goering’s accusations of Communist complicity were made after a cursory and flawed investigation. Goering’s anger mounted. He said he was “only concerned with the Communist Party of Germany and with the foreign Communist crooks who come here to set the Reichstag on fire.” The audience cheered. Dimitrov replied, “Yes, of course, bravo, bravo, bravo! They have the right to fight against the Communist Party, but the Communist Party of Germany has the right to go underground and to fight against your government; and how we fight back is a matter of our respective forces and not a matter of law.” Judge Buenger interjected: “Dimitrov, I will not have you making Communist propaganda here.” To which Dimitrov replied that Goering was making National Socialist propaganda. The exchange continued:

Goering: Look here, I will tell you what the German people know. They know you are behaving in a disgraceful fashion....I did not come here to be accused by you.
Dimitrov: You are a witness.
Goering: In my eyes you are nothing but a scoundrel, a crook who belongs on the gallows.
Dimitrov: Very well, I am most satisfied.

At this point, Judge Buenger cut Dimitrov off, again accusing him of making propaganda, while not rebuking Goering at all. Dimitrov tried to put more questions, but the judge ordered him to sit down. Dimitrov had one last shot: “You are greatly afraid of my questions, are you not, Herr Minister?” Goering’s anger rose. He replied, “You will be afraid when I catch you. You wait until I get you out of the power of this Court, you crook!” The judge, ever dutiful, said, “Dimitrov is expelled for three days. Out with him!”

The moment is without parallel, the witness credibly threatening to murder the accused. And the effect of Dimitrov’s cross-examination of Goering, in the court and around the world, was electrifying. The next day the Swiss conservative paper Neue Zürcher Zeitung described Goering’s “mad foolhardy rage” and concluded that “the whole trial has been rendered worthless at one blow.”

But the trial takes on particular political significance after the fall of the Nazis. Whilst all the ‘facts’ would seem to suggest that the Nazis themselves were heavily implicated in the fire and legal system (which refused to consider this possibility) was closely involved with Nazism to admit such would be politically inconvenient. This was because – as the RAF always insisted – the West German state was staffed by a bunch of Nazis and the legal system was a particularly bad offender:

The exposure of the omnipresence of those who had been Nazis in the West German state apparatus required a response. The facts of personal biography could not be denied; at most it was possible to obscure them. A major effort was made to exaggerate the minimal conservative opposition to the Nazis, and especially the belated July 1944 conspiracy among a handful of officers that led to an unsuccessful attempt on Hitler’s life. But even with the utmost exaggeration, very few could be claimed to have had any connection, however remote, with these isolated affairs.

The great bulk of German opposition to the Nazis had been from leftists, and it was in the government of the communist East German state—the German Democratic Republic—that it was easy to find those who had fought the fascists arms in hand, and those who truly had been opponents of the Nazis. A more promising alternative was to exculpate the Nazis—who after all had been staunch anticommunists—and in particular the Nazi legal system. A further, and more material, concern was the presence of substantial claims from Jewish victims of the Nazis, demanding restitution of property they had lost (of course always in accordance with legal process of some sort) in the first years after Hitler came to power.

A solution was to assert that the German legal system had continued to function—of course unfortunately deprived of the services of its Jewish judges—with unimpaired validity, at least (as regards the Jewish claimants) until Chancellor Adenauer’s chief of staff Globke’s Nuremberg Laws came into effect, several years after the Nazis came to power. A revision of the history of the Reichstag Fire trial would well serve as the basis for this attempt to rehabilitate the Nazi legal system; after all most of the defendants were acquitted, and the court had exculpated the Nazis from having set fire to the Reichstag.

In pointing out the Nazi usage of the legal system the article does two useful things. Firstly, it shows us the political stakes of the law and the way in which politics is actualised through law. Secondly, as to the particular character of these stakes, let us note that the Nazis did not simply ‘abolish’ the law; they cannot simply be seen as in some sense being lawless. While there are legitimate questions about the nature of law at some points in Nazi Germany (and whether this indeed was law) it is clear that law and legal processes were – at least at the beginning utilised by the Nazis. More to the point, the living embodiment of law and legal values were seemingly no more resistant to Nazism than anyone else:

Today, facing a new regime of preventive detention and emergency “Patriot Act” abolition of fundamental rights, it is important not to think that “the Law” as such offers protection. We must offer such support as we can to those lawyers and jurists whose politics and decency have made them take a stand against our own emerging police state regimes.

The article also brings into relief the ways in which the law is a way of contesting the reality of particular events. Indeed, should the legal struggle be successful then the political ‘truth’ of one party is given material force. As Bill Bowring notes (The Degradation of the International Legal Order, 2008, Routledge-Cavendish) of the Chechen struggle against the Russian state:

[W]hat is most important for them and their communities is that the truth has, albeit several years later, at last been told, authoritatively and at the highest level, as to the tragedies which befell them and their families, and the responsibility of the state. This is not simply a question of competing narratives. Instead, on my arguments in this book, such applications are the means by which the rights declared in the darkest hour of French Revolution are re-invested with revolutionary content. It is not that the Chechens’ struggle is legitimised by virtue of the rhetoric or the [204] meagre individual remedies on offer in Strasbourg. On the contrary, the daring use made by the Chechen applicants is the means by which the dead rhetoric of government pronouncements or of worthy NGOs is transformed – transmuted – into words and ideas which have material force. It is possible to say that as a result of winning these cases, the relation of forces in Russia as a whole has been realigned, towards the survivors.’
p.205