The great mass of those responsible for the ideology and actions of the Third Reich lived on after the war. Great or small, they were the “stuff” the new Germany was made of. Is Germany still made of the same stuff?
Those who perished were a few top Nazi leaders, the victims of the Allied bombing of civilian populations, and millions of soldiers in combat. Oh yes, and whoever opposed either the ideology or practice of Nazism. They suffered greatly.
Those who quietly supported the government, doing what they were told with efficiency, if not valor and zeal, lived on.
It was the heroes like the White Rose, the outcasts like the Jehovah Witnesses and Gypsies, the despised like the Jews, and the so-called defective who did not live on. They perished. No one in Germany has failed to understand this lesson. The nail that stands up gets pounded down. There are many ways to put it.
“Starting in 1934, up to 400,000 people were sterilized against their will, and more than 200,000 were murdered in mental hospitals and institutions. From the perspective of the fundamental value of life, the exhibition examines the intellectual and institutional conditions that made these crimes possible.”
It is no doubt a fascinating exhibit at the Berlin Museum. However, more to the point, what happened to these terrifying people? These individuals who, with the might of the German nation behind them, terrified their own people and the world?
And what happened to the laws that mandated what they did? Of course they were abolished, weren’t they? Well, most of them were, but not all: the Law for the Prevention of Hereditarily Diseased Offspring was not suspended until 1974 and the Bundestag did not abolish it until 2007! (See the link to Professor Schnieder’s 2010 speech below.)
Upon what basis: Positive law or Natural law?
But more fundamentally, what of the understanding that established such laws? How did such inhuman, criminal laws become law? What “intellectual conditions made these crimes possible”? And could it happen again?
It depends on the philosophy by which a people, through their representatives, formulate the laws themselves. Are their limits on the reach of government, or can it do anything? Limitless government needs positive law to exist, which is equated with power by the German legal scholar, Gustav Radbruch (see below) as:
“A law is valid because it is a law, and it is a law if, in the general run of cases, it has the power to prevail. This view of a law and of its validity (we call it the positivistic theory) has rendered jurists (judges) and the people alike defenceless against arbitrary, cruel, or criminal laws, however extreme they might be. In the end, the positivistic theory equates law with power; there is law only where there is power.” (Five Minutes of Legal Philosophy, published 1945)
It’s very basic and very easy to understand: all that is required to pass a law is the power to enforce it. Right and wrong, moral and immoral have nothing to do with it. As Radbruch further relates, under this philosophy of law, no right of conscience exists to not obey any law whatsoever. As you can see, such a philosophy is the very heartbeat of communist and socialist systems of government.
Natural law is more difficult to define, but as Professor Radbruch says, its concepts “enjoy far-reaching consensus” as the basis of “human and civil rights” the world over. They are “weightier than any legal enactment” so that “any law in conflict with them is devoid of legality.” This was very important for the professor to define, indeed to extol to his fellow Germans, after the Third Reich perished.
Let’s turn to the dictionary for a definition of natural law, which is “opposed to positive law”:
“It is the theory that some laws are basic and fundamental to human nature and are discoverable by human reason without reference to specific legislative enactments or judicial decisions. Natural law is opposed to positive law, which is human-made, conditioned by history, and subject to continuous change.”*
Specifically, to simplify the Encyclopedia Britanica definition: natural law is a moral standard in the human conscience which all men know instinctively, independent of church or Scripture. If men are to live at peace with one another, there are certain rules which must be observed: the keeping of promises, the recognition of human equality, the principles of equity and justice, of parental responsibility, and of marital fidelity.
From these very different bases of power (for positive law) and moral standards in the conscience (for natural law) we can understand the difference between totalitarian and free governments.
No valid law negates or commands disobedience to any instinctively known moral standard.
When laws are obeyed that do violate conscience, we are left with histories such as that described by Professor Schneider…
Professor Frank Schneider, in a major speech before the German Association for Psychiatry, Psychotherapy, and Psychosomatics, gives us a partial picture. Speaking in 2010 he uses the grim term, “collective denial.”
“After the war ended, much the same occurred in the field of psychiatry as in many other areas of German society – collective denial. Neither psychiatric societies nor individual psychiatrists – with very few exceptions, such as Gerhard Schmidt and Werner Leibbrand – owned up to what had happened. This is a fact that leaves us utterly incredulous and deeply ashamed today.“
One of the foci of his speech is the infamous “Action T-4” euthanasia group, which was guided by doctors and psychiatrists who quietly chose those life or death under the guidelines of Nazi law. The 200,000 human beings, German citizens all, referred to above, were chosen for death. Another 400,000 were subject to sterilization, the guarantee that they would not have “defective children”.
You’ll be surprised to hear what happened to them. Several of the worst, a few, were executed. A few more went to prison. But most didn’t. Even some of the most important went on functioning as doctors, psychiatrists, in the judicial system, even as counsellors of state.
From Professor Schneider:
“The story of Professor Werner Heyde, who has already been mentioned, is particularly mindboggling.** Heyde was the medical director of the “T4 program”, and an arrest warrant was issued for him after the war. And yet from 1950 to 1959 he enjoyed a second career as a court-appointed medical expert in Schleswig-Holstein. Although he went by the name of Dr. Fritz Sawade, there were those in the medical and legal professions who were aware of his real identity, yet did not expose him. And many others, both within our field and beyond, knew about it.“
What of the many “in the medical and legal professions” who knew who Dr. Sawade was? Like Professor Heyde himself, certain conclusions about them seem warranted by the facts. They, like he, must have approved of the Nazi racial, hygienic, and sterilization policies. How else could they have tolerated a man the world considered a mass murderer — of their fellow Germans — to continue to function in a polite, respectable way, still judging his fellow Germans? They must not have been bothered in their consciences by what he did. After all, he was obeying the law. This is no small or rhetorical point.
Clearly, the way of life that had served them well in Nazi Germany still did so. That is, the whole way of thinking, how they approached life, and even how they regarded those who possessed lives “not worth living” or not so well-known, lives “not worth reproducing.”
Was Heyde, in the end, just an obscure example, perhaps? Not one known to the government, a hide-away, a successful fugitive? Professor Schneider brings up other examples, such as those who justified the actions of the Nazis being employed, and in fact giving counsel to the West German government:
“Some of the expert witnesses called on during the hearings of the West German Bundestag’s Restitution Committee in the 1960s were the same psychiatrists who had justified forced sterilizations and participated in systematic murder during the Third Reich. Records of 13 April 1961 report that Werner Villinger rejected the idea of compensation payments on the contemptuous grounds that the payments might cause victims of forced sterilization to develop “neurotic ailments and suffering that could damage not only their current well-being and […] their ability to enjoy life, but also their ability to perform.”
Why exactly were they called to testify? Was it to justify the Third Reich so as to avoid making restitution? Was it public outrage that such a character would say such things that caused the rather tardy mills of justice to start grinding in Germany? Did the survivors object to his justifying the cruel treatment they received at his hands?
It would be interesting to know. Facing trial for his murderous and oppressive activities (forced sterilization, medical experimentation, and participation in the Action T-4 program), Villinger threw himself off a mountain top near Innsbruck to his death later on that year.
His history is fascinating in a morbid way. His acceptance reached to the White House in America, attending the White House Conference on Children and Youth, so perhaps we shouldn’t be too hard on his fellow citizens of Germany for harboring a mass murderer. Evidently a common thing in those days.
But, what has changed? Of course those wicked people finally died off, but what of the mindset they lived by? What of the fundamental views of law and obedience to the state, regardless of what the state ordered — what happened to that? Did it change? Let us consider what Professor Schnieder says about Professor Gustav Radbruch.
“[Schneider]: Human dignity is always the dignity of the individual human being. No law may ever be allowed to disregard this.
In 1946 Gustav Radbruch described the conflict between law and justice. In principle, the law takes precedence over justice:
[Radbruch] “unless the extent to which a positive law contradicts justice is so intolerable that it must yield to justice as ’wrongful law’. […] When justice is not even aspired to and when equality, the very essence of justice, is deliberately flouted when drafting a positive law, such law is not only ’wrongful’, it is completely devoid of legality.” [Radbruch, G., “Legal injustice and justice beyond the law” [“Gesetzliches Unrecht und übergesetzliches Recht”], Süddeutsche Juristenzeitung 1, 1946, pp. 105–108, specifically p. 107]
The pain in his words in very evident. Clearly, many laws of the Third Reich were devoid of legality in his view. But what of the view he starts from – that he accepts as normative – that law takes precedence over justice? In another publication from 1945 (see below), he maintains that the dividing line between which must yield, law or justice, is drawn by the natural law. Does that mean anything to people today? If it doesn’t it is because of compulsory education, which teaches them nothing of it.
The heart of the matter today: “The Law Takes Precedence over Justice”
This we can assert from personal experience in Germany to be true. The law even takes precedence over the Basic Law (German Constitution). We have seen this repeatedly in our situation. We sincerely wish it was otherwise.
Quite clearly the law serves purposes besides justice. Most obviously the remaking of the German people, their society, and their very culture from what it has been into something else. Standards of all human history are being overturned at breathtaking speed, such as parental discipline of children.
The title of Professor Radbruch’s 1946 paper, “Legal Injustice and Justice Beyond the Law,” provides context for the recent words of Professor Klenner about the Jugendamt:
Klenner, one of Germany’s best known psychologists, has stated:
Decisions of fateful importance are being made by agents of an authority who cannot be held responsible even when they are acting irresponsibly on purpose. This is called a space outside the law.
In this space an agency like the Jugendamt is able to do anything. But it is not just the Jugendamt that occupies this space outside the law, that practices legal injustice, that finds some kind of justice beyond the law.
Professor Radbruch would be writing the same words to the laws of this generation as he wrote to the laws of that generation.
The shadow of the past lies heavy upon the land. It can be thought of in many ways, but one of the key ways the shadow of darkness lies upon Germany, or any country, is in the power to make laws foreign or hostile to justice. Passing such laws is what the philosophy of positive law makes possible. This is the philosophy of states that accept no limits on their actions from any other concept of law or right. The sole determination of right is might.
This is just as Professor Radbruch said in his famous “Five Minutes of Legal Philosophy” — published in 1945:
The First Minute
‘An order is an order’, the soldier is told. ‘A law is a law’, says the jurist (judge). The soldier, however, is required neither by duty nor by law to obey an order whose object he knows to be a felony or a misdemeanor, while the jurist—since the last of the natural lawyers died out a hundred years ago—recognizes no such exceptions to the validity of a law or to the requirement of obedience by those subject to it. A law is valid because it is a law, and it is a law if, in the general run of cases, it has the power to prevail.
“This view of a law and of its validity (we call it the positivistic theory) has rendered jurists (judges) and the people alike defenceless against arbitrary, cruel, or criminal laws, however extreme they might be. In the end, the positivistic theory equates law with power; there is law only where there is power.”
This is to say that the law is whatever the government says it is — since it has power. Whether such laws stand on the foundations of natural law, whether they even honor the elaboration of the natural law that the Basic Law is, and whether they have the provision of the conscience clause (to make room for those who cannot agree with the latest social policy masquerading as law), the law is whatever the Parliament passes…whether such laws are right or moral or not. There is an established judge of what is moral. That “judge” is behind every declaration of human and civil rights of recent centuries, including Germany’s.
Consider something else Professor Radbruch said:
The Fifth Minute
“There are principles of law, therefore, that are weightier than any legal enactment, so that a law in conflict with them is devoid of validity. These principles are known as natural law or the law of reason. To be sure, their details remain open to question, but the work of centuries has in fact established a solid core of them, and they have come to enjoy such far-reaching consensus in the so-called declarations of human and civil rights that only the dogmatic sceptic could still entertain doubts about some of them…”
So it is in conflict with the natural law that justice must take precedence over positive law. Laws against the natural law are “devoid of legality” according to Professor Radbruch. And yes, it is by that same natural law that parents discipline their children. All peoples have known this everywhere for all time, until a few legislators have decided to attempt to overturn the mandate of God written on the very hearts of men and women.
Disciplining children, then, to teach them respect and obedience, is not just by what God writes on the hearts of His people in the New Covenant in such verses as Ephesians 6:1-4 and Hebrews 12:5-11. All parents who love their children will discipline them; thereby teaching them self-control and turning them from evil.
Everything Adolf Hitler did was legal. Do you not understand that? He had power and so his might made right. But was it right? That is the question.
Our answer is humanity’s: it was legal in the perverted sense of positive law, but it wasn’t right! To abolish parental education of their own children has been law in Germany since the days of Adolf Hitler, but it has not been right. And in the same way, to abolish parental authority to discipline in Germany has been law since 2000, but it has not been right.
This is just what Professor Thomas Schirrmacher*** said very recently about home education in Germany:
“The fact that the laws of a nation make something lawful doesn’t make it right,” he said. “Everything Hitler did in Germany was allowed by the law. He never moved until the law allowed him. Applying the national law of Germany at the time you couldn’t have convicted Hitler of a crime. But what he did obviously and dramatically was a crime against humanity.”
“In 1938 the National Socialists passed a law making it a criminal offense if parents did not send their children to their schools,” he said. “These laws were never changed after the war in order to allow for homeschooling which had been possible before. I believe German leaders should take action to protect the right of parents to educate their children at home.” (Speech at Patrick Henry University in Virginia, USA)
The situation with the Twelve Tribes has made it very plain that the future of freedom is at stake in Germany. What is destroying it in the legal sense is positive law without the restraint of natural law. That is the crumbling foundation of the inviolable rights of the Basic Law. Inviolable rights place limits and restraints on government. Socialist governments, of which Hitler’s was one, accept no such limits.
* From the same dictionary, the definition of natural law continues…
The concept of natural law originated with the Greek… Stoics [who] believed that the fundamental moral principles that underlie all the legal systems of different nations were reducible to the dictates of natural law. This idea became particularly important in Roman legal theory, which eventually came to recognize a common code regulating the conduct of all peoples and existing alongside the individual codes of specific places and times (see natural rights). Christian philosophers such as Aquinas perpetuated this idea, asserting that natural law was common to all peoples—Christian and non-Christian alike—while adding that revealed law gave Christians an additional guide for their actions. In modern times, the theory of natural law became the chief basis for the development by Grotius of the theory of international law. In the 17th cent., such philosophers as Spinoza and G. W. von Leibniz interpreted natural law as the basis of ethics and morality; in the 18th cent. the teachings of Rousseau, especially as interpreted during the French Revolution, made natural law a basis for democratic and egalitarian principles. The influence of natural law theory declined greatly in the 19th cent. under the impact of positivism, empiricism, and materialism. In the 20th cent., such thinkers as Jacques Maritain saw in natural law a necessary intellectual opposition to totalitarian theories.
** Cf. Godau-Schüttke, K.-D., The Heyde/Sawade affair [Die Heyde/Sawade-Affäre], 3rd edition, Nomos, Baden-Baden, 2010.
*** Thomas Schirrmacher holds a chair in theology (ethics, mission, world religions), is President of Martin Bucer Theological Seminary (Bonn, Berlin, Zurich, Innsbruck, Prague, Istanbul), director of the International Institute for Religious Freedom (Bonn, Cape Town, Colombo) of the World Evangelical Alliance and president of Gebende Hände gGmbH (Giving Hands), an internationally active relief organisation.