Akademik

   The Republic's judicial system mirrored the structure molded forty years earlier by Bismarck. Bismarck had purged the courts of their liberal jus-tices and thereafter had used the system against his political opponents. To become a judge in the Kaiserreich, one had to survive a probationary period of at least eight years as an assistant judge. Clearly, only the wealthy could aspire to a judicial career, while only the socially and politically admissible could maneuver through the probationary period. In the decade before World War I public prosecutors, all of whom had mastered compliance after years of state service, were typically chosen when it came time to fill high-level judgeships. Not surprisingly, such judges were notorious antisocialists; it became customary for activists within the workers movement to stand trial for high treason. One judge tellingly proclaimed that what "the army is at our borders, our decisions must be within them.

   The collapse of the Kaiserreich and the sudden rise to power of the SPD humiliated and offended Germany s judiciary. Yet the Republic s leaders, believing that they could not act otherwise, allowed such judges to maintain their positions with guarantees of immunity. Although the judges pledged to uphold the Republic, most allied themselves with the DNVP. Accepting the rightist claim that the Kaiser s army had been "stabbed in the back (see Dolchs-tosslegende), numerous judges assisted those intent on removing the "enemy within. By basing justice on the concept of "friend versus foe, a position refined by Carl Schmitt* in his 1927 book Der Begriff des Politischen (The concept of the political), judges often appraised crimes against a broader back-ground of supposed patriotism and loyalty to the old Kaiserreich. Accordingly, the act of murder might be excused, or even be deemed proper, if the murderer were acting out of "patriotism. It is clear that such judges were carrying over to the Republic their old notion of "high treason. In countless cases involving rightist defendants, including that of Traugott von Jagow in the Kapp* Putsch trial, judges excused behavior by stating that the accused had no doubt "acted with noble motives. In the judgment passed in April 1924 against the defen-dants in the Beerhall Putsch* trial, the court claimed that Hitler* and his fol-lowers "had been guided in their actions by a purely patriotic spirit and the noblest of selfless intentions." Not surprisingly, in those trials that affected the NSDAP after Hitler s imprisonment—even that before Leipzig s Supreme Court—the system consistently excused slander, violence, and murder as the actions of good men with noble intentions. Late in 1931 an SPD memorandum documented 1,184 cases of Nazi violence during the prior two years in which 62 people had been killed and 3,209 injured; still, the courts refused to concede the heinous nature of such violence. This response, based on the abstract "friend versus foe concept, encouraged right-wing aggression while undermining the confidence of republicans. The notion that "defense of the state" justified any act, including murder, ultimately claimed both law and justice as its victims.

   Walther Rathenau* argued that the "Volksstaat is not created by institutions and paragraphs of constitutions and laws, but by spirit and will (Joll). Among the Republic s tragedies was that men such as Rathenau, who genuinely wished to be free of old abuses, refused to give law and democracy a chance to work. Gustav Radbruch* warned in 1929 that application of the judicial system s "na-tional defense doctrine, not unlike Rathenau s concept of the Volksstaat, could justify the actions of "fascists who might attempt to rescue the state by force from the permanent emergency of its 'democratic-liberal constitution. Ingo Müller contended that the doctrine was used to justify everything later done by the Nazis.

   REFERENCES:Bendersky, Carl Schmitt; Michael Hughes, "Private Equity, Social In-equality"; Jarausch, "Crisis of German Professions"; Joll, Three Intellectuals in Politics; Ingo Müller, Hitler's Justice; Howard Stern, "Organisation Consul."