By Dr.
Erich Schinnerer, University of Berlin
Published
by Terramare Office, Berlin, 1938
When the National
Socialist Government came into office, on January 30, 1933, it was confronted
with widespread chaos and confusion in the social, economic and political life
of the nation. A similar state of affairs existed in the legal sphere and in
the administration of justice. The situation was too critical to allow of any
time being lost in dealing with it.
The
first step taken was to put an end to the manner in which Parliament had
hitherto functioned. Even in imperial times, before the War, this institution
had proved itself inefficient. The republican parliament however, which
followed the War, turned out not only inefficient but positively detrimental to
the interests of the country. This republican Reichstag had been organized
according to the principles laid down in the Weimar Constitution of 1919. But
that Constitution had been drawn up by a Conference of theoretical jurists and
politicians who were quite out of touch with the practical needs of the nation.
It was therefore out of harmony with German historical tradition, with German
mentality and the ethical constitution of the German nation. Moreover, the
constitutional laws enacted at Weimar were formulated under the aegis of the so‑called
Peace Treaties and as such they naturally failed to arouse popular opinion in
favour of the new Constitution. In the final crisis of 1932/33 the legislative
body operating under this Constitution, that is to say, the Reichstag,
absolutely failed to function. Parliamentary legislation was increasingly
superseded by emergency decrees issued by the President of the Reich. In the
year 1931 35 laws were passed and 42 emergency decrees were issued. In 1932
only 5 laws were passed, but 60 decrees were issued. This system of emergency
decrees could not furnish a permanent basis for the government of the country.
Just as in the case
of the State, the local administrations were also unable to cope with the
difficulties that confronted them. Especially the municipalities were
threatened with disaster, owing to the economic conditions which resulted
directly from the political chaos. In addition to all this, the unfortunate
dualism between the Reich and the governments of the federative states {NOTE:
The expression “federative states” is used several times throughout this
article and much of the recent constitutional reform affects the position of
these states. As the average outsider has been accustomed to look on Germany as
a political unit, it may be well to explain that before the War Germany was a
Confederate League bearing the name: German Empire, under the hereditary
presidency of the King of Prussia, who bore the title: “German Emperor”. In 1918
the kings and princes of the various federative states abdicated; but the
Weimar Constitution retained the principal federative states in the form of
republics, with their independent government and parliaments. These were:
Prussia, Bavaria, Saxony, Württemberg, and the minor states: Baden, Thuringia,
Hessen, Mecklenburg, Oldenburg, Brunswick, Anhalt, Lippe, Schaumburg‑Lippe. In
addition to these there were Free Hanse Cities of Lübeck, Bremen and Hamburg.} led
to the development of an administrative apparatus which was becoming more and
more disjointed.
The
administration of justice failed to check the increasing volume of crimes and
misdemeanours. In spite of the growing leniency towards the criminal, which was
due to the prevailing laxity of moral ideas, the number of persons accused of
larceny in Berlin rose from 32,452 in 1926 to 52,231 in 1932. The number
accused of burglary rose from 18,673 to 36,729 within the same period. And the
number of cases of robbery with murder from 2 to 7. The damage resulting from
theft amounted to 16.5 million marks in 1926. In 1932 it amounted to 32
millions. The increase in acquittals, which offended the popular sense of
justice, was an outstanding proof that the existing criminal code was
inadequate to deal effectively with new developments in general delinquency.
The laws
in regard to labour, which were based on the idea of a permanent conflict of
interests between employers and employed, were unable to maintain industrial
peace, which is so necessary to national existence. The increase in
unemployment heightened the existing tension to a point where it was becoming
intolerable.
The
sources of the nation's food supplies were in a precarious condition. The
farmers were heavily in debt and, moreover, their farms were difficult to work
profitably owing to the dividing up of the land according to the hereditary
system.
Furthermore,
a large class of aliens, namely Jews, had migrated to Germany from the East,
especially during the War, and had gained a decisive influence in politics,
law, the learned professions, education and in control of the cultural
organizations. Although the Jews represented only one percent of the whole
population, they had secured a footing in nearly all the key positions in
public life.
The
political transformation which took place in 1933 brought with it the
introduction of many practical reforms in the realm of law. The threatening
collapse proved clearly that the existing laws were inadequate to the vital
needs of the nation and that a change in juridical practice, or the passing of
individual measures or supplementary laws, would have been insufficient to
eliminate such profound defects. The situation could be effectively remedied
only by creating an entirely new order, based on the new political principles
which the National Revolution had introduced into national life.
But a
new and permanent system could not be created at once. Therefore the Reich
Government did not hurriedly draw up new codes; but for the time being it had
to content itself with introducing supplementary laws which would clear the way
for further developments and prepare the ground for a future systematic code.
The laws to which the legislator would give final form would have to arise from
the life of the nation itself. The Academy of German Law was set up as a public
corporation and within the framework of this organization a number of
committees are doing the preliminary juristic work which is necessary before
the new codes can be finally shaped. At the present time the Academy is
principally engaged on that section of the code which will establish and
guarantee the position of the family as an integrant unit in the national
community.
The
whole body of new legislation is to be inspired by the main ideas which
dominate the German mind today: namely, the idea of Leadership, the idea of the
People, and the idea of the Community of the People.
In order
to understand what is the basis of the new legislation one must have a clear
grasp of what the Germans mean today when they speak of the Community of the
People, the Volksgemeinschaft. This
idea of the people is based on the fact that their members have a homogenous
national character. When great multitudes act together, conscious of their
historical unity and determined to pursue the fulfilment of one mission as a
national unit, then they are a political unit also. Of this political unit
those who are its leaders form an integrant part. All the members form one
corporation which is called the Volksgemeinschaft,
literally, Folk Community. Now the laws that govern the Folk Community
emerge from the inner spiritual, political and material necessities which have
developed through a common historical experience. Therefore in the National
Socialist sense law is not the expression of the State's authority, to which
the people must submit as a passive and inert mass. In harmony with the concept
of the Folk Community, law is part of the life of the people. The legislator
draws out and gives organic expression to the sense of what is just and unjust,
the feeling for what is good and what is evil, which is inherent in the soul of
the people. Therefore the starting point of the National Socialist conception
of law is the people, not the State. The task of the State is to see that the
law is carried out.
The
legal system which was introduced into Germany towards the close of the middle
ages was based on the principles of Roman jurisprudence. These principles were
revived and reformulated in the nineteenth century. They were entirely foreign
to German traditions and they proved a perpetual hindrance to the development
of a uniform system of German law. The German people have not a traditional
legal system such as that through which the Anglo‑Saxon people have found
expression for their inner sense of justice and which forms the foundation of
all their legal ideas. In many spheres of German life the introduction of a
system foreign to the nature of the people separated the operation of the law
from the naturally developing life of the people. The legislative efforts made
by the Second Empire ever since 1871 failed to close the breach between the
legal instincts of the people, developed out of their traditions, and the ideas
of learned jurists. The great work of codification carried out under the Second
Empire was done by men who had been trained in the ideas of Roman law. It is a
well known fact that this code was soon shown to need reform; and yet all
attempts to improve it have failed.
One special factor
that played a large part in bringing about an estrangement between the laws and
the natural legal instincts of the people was the dominant position which the
Jews acquired in the legal profession. In Berlin alone 1835 or 54% of the
lawyers practising in 1932 were of Jewish extraction. In interpreting and
applying the German law they were guided by the legal ideas of their own race.
The difference between the Jewish and German ideas of law is indicated by the
fact that up to the nineteenth century the Jews received special treatment in
the courts in view of their different notion of what was legally right and
wrong. Special forms of oath were drawn up for them and they could not be
punished for receiving stolen goods. The Law of September 15, 1935 put a stop
to the further predominance of the Jews; but there are still many Jewish
lawyers in Berlin. Out of the total of number of lawyers 943 or 32.6% were Jews
in 1937.
In the
National Socialist State the Führer is the
lawgiver; but he himself is
an integral part of the Folk Community. And so the National Socialist law
follows a different principle from that on which the status of a dictatorship
is legally based. In order to maintain the rule of the dictator external
compulsion is necessary; but leadership depends on the unconditional authority
of conviction. Where there is compulsion the individual feels that he has no
responsibility to the community or to the future, but it is just on this
feeling of individual responsibility that the National Socialist law is based.
The highest honour and the highest ideal consist in the service of the
community. Honour and internal as well as external freedom are essential to the
existence of the community.
Therefore,
as the ideal of the Folk Community forms the basic principle of National
Socialism, a legal form must be found which expresses that principle and gives
each German his place as a constituent part of the national community. The
individual does not stand isolated over against the community. A community must
be made up of members. These members are not the mere objects of its rule or
social institutions. Each represents the community in himself and has his field
of activity within it. The total activity of the community depends on the
strength and achievements of the single members. Therefore the member is not in
the position of a subject who has no rights on his own account, as is the case
in the absolutist State. The rights of the community are his rights and on him
depend its honour and freedom. But he occupies this position for the sake of
the community and not for the sake of the individual. It implies political
duties as well as political rights.
The
National Socialist Revolution did not merely mean the external collapse of the
existing State. It implied also a change in the fundamental ideas of the State
as such and its laws. Therefore we should be mistaken if we regarded it merely
as a revolt against the evils, which existed in 1933. The National Socialist
law rather represents something essentially new, which is capable of infusing a
new life into all traditional forms. Führer and people, Folk Community and
German citizen, constitute the essential elements of the National Socialist
conception of law. And the purpose of the new laws is to give form to that
conception.
STAAT UND VOLK
The
National Socialist Revolution was not, like other revolutions, carried out by a
breach of the constitution. The constitutional transition from the Weimar
Republic to the National Socialist State was given its constitutional form in
the law establishing the Leadership of the Reich, which was passed on March 24,
1933. On that date, and by a majority of 441 to 93, the constitutionally
elected Reichstag transferred the leadership of the Reich to the Reich
Government. That meant the abandonment of the existing method of legislation.
In passing this law the Reichstag was acting within its rights as defined by
the Weimar Constitution; for the latter put no restriction on the ambit of such
laws as might be enacted for the purpose of altering the Constitution. The
stipulated majority had been attained. The forms which the Constitution
required had been observed. Through this law the Reichstag declared its
approval of the government proclamation issued by the Reich Chancellor. This
proclamation laid down the lines along which the work of reconstruction, within
and without, was to proceed. But the political significance of the law goes
much further. It acknowledges the leadership as invested in the community of
the German people. Therewith was abolished the division which the variety of
political parties had caused in the life of the nation. The Government of the
Reich was entrusted with the task of carrying out the new reform. By assuming
the legislative function the Government did not thereby introduce a transitory
state of emergency which would eventually be terminated by the restoration of
the old state of affairs. Once and for all the authority of the leaders of the
State was recognized, and in their hands the legislative and executive powers
were combined.
It is
not without importance for the development of the legislative activities which
followed its assumption of power that the National Socialist Revolution was
accomplished without any violent external breach of the lady, although it
profoundly influenced the life of the people as a whole and also that of the
individual German. Up to the present day the Weimar Constitution has not been
formally abolished. But when the revolution became a fact the Weimar Constitution
lost all practical importance as the basis of the State, since the national
life had burst its forms and was seeking new forms of legal expression. The
principles of the Weimar Republic would be in conflict with the national
constitution in which the German people live to‑day, although as yet no written
constitution has been drawn up. The Reich Government did not hold it to be
their task to issue a new constitution. The first foundations have been laid
and therewith the ground has been made ready for a new legal structure which
will be a living embodiment of the national life.
Apart
from the law regarding the Reich Leadership the following laws which, on
account of their fundamental importance, may be regarded as constitutional laws
have been passed: The Coordination Acts of March 31 and April 7, 1933, the Plebiscite
Act of July 14, 1933, the Act establishing the unity of Party with State of
December 1, 1933, the Succession Act of August 1, 1934, the Regional Governors
and Local Government Act of January 30, 1933, the Fighting Services Act of
March 16, 1935, the Reich Flag Act, the Citizenship of the Reich Act, and the
Act for the Protection of German Blood and German Honour of September 15, 1935,
the Act reuniting Austria and Germany of March 13, 1938.
From
this list one can see that the centre of gravity of the State does not lie in
its external structure and in its position in relation to something outside of
the State itself. The State is determined rather by the internal relationship
of the people, whom it is meant to serve. State, Party, Economic System and
Judicial System, are only secondary factors which exist for the service of the
people. This is clearly shown in the Führer's decree of August 8, 1934, in
which he called upon the Reich Minister of the Interior to prepare a referendum
on the decision of the Government to appoint the Führer President of the Reich.
"I
desire that the German People should give their explicit approval to the
decision of the Cabinet whereby the functions of the former Reich President
were transferred to me and therewith combined with those of the office of Reich
Chancellor. Absolutely convinced as I am that all power in the State proceeds
from the People, I request that the decision of the Cabinet, with any additions
necessary to be made, should be presented to the German People without delay
for them to express their opinion on these measures in a free plebiscite."
This
relation between People and State shows how false it is to characterise the
National Socialist State as a totalitarian State. A State which itself works
for an end and is not an end in itself cannot in any sense be called a
totalitarian State, in which the centre of gravity has been shifted to the
disadvantage of the individual. In such a case the defenceless individual is
confronted by an all‑powerful State. But the National Socialist State exists to
serve the People and therewith each member. Each German is a member of the
whole and therewith called upon to cooperate in the life of the State. The
term, totality, properly applies to the National Socialist Weltanschauung, which is embodied in the whole people and activates
every branch of national existence.
The most
important of the constitutional laws are those designed to maintain the purity
of German blood. The word People does
not mean for National Socialism the total number of German subjects, nor does
it mean merely all those with a common history. The people is a political
factor which has its own being, and in order to preserve this being its blood
must be kept pure and healthy. The foundation of the national being is race. It
would be a waste of time to argue about the constituents of race. Races are the
stones with which God has built up mankind and our task can only be to preserve
them as such. This is the aim of the Act for the Protection of German Blood and
German Honour, which was passed by the Reichstag on September 15, 1935. The Act
ensures that the German people shall be clearly separated from the Jewish
people living on the same national territory. This separation is a strict one,
and its results have often seemed to bear harshly on the individual. But only a
complete separation in life and law can make it tolerable for two peoples to
live together in the same territory. This is to be attained by preventing every
kind of blood mixture. Only if there is a healthy mutual feeling that the other
race is foreign, can hatred and contempt of the one race by the other be
avoided. This Act secures for the future the necessary biological unity of the
German people. The Reich Citizen Act of September 15, 1935, supplements the
other act in the political sphere. It makes a distinction within the State
between German citizens, who are the representatives and foundation of its
greatness, and those persons who merely reside in the State for their own
profit. "Only those who are nationals can be citizens of the State. They
alone are nationals who are of German blood, no distinction of religious creed
being made. Therefore no Jew can be looked upon as a national." (Party
Programme, Point 4). Reich Citizens alone possess full political rights. They
alone can exercise the franchise, can occupy official positions, can take part
in the Reichstag elections or plebiscites. Only they can become members of the
Reichstag or of a State council, a provincial council, town council or district
council, or may become civil servants or hold honorary public office. A
condition for the granting of these rights is that such persons should be
capable and willing loyally to serve the German people and the German Reich.
When
this distinction had been made between citizens of the Reich, whose rights are
granted to them in the form of a certificate of Reich Citizenship, and Reich
subjects, who merely belong to the German State as protective units, it became
necessary to regulate the position of those who are only partly of Jewish blood
and are at present domiciled in Germany. The lot of such persons, who stand
between two essentially different races, is especially difficult and has been
the subject of much discussion. To solve the question it was necessary to make
far‑reaching concessions. These consisted in laying down the rule that all
those who have less than three Jewish grandparents and do not declare their
allegiance to the Jewish people should not count as Jews and should be allowed under
certain circumstances to be absorbed into the German nation. Only those
subjects who are descended from three or four Jewish grandparents count as
Jews. Subjects who have two Jewish grandparents can get the permission to marry
persons of German blood. They and the subject who only has one Jewish
grandparent may in future be absorbed into the German body politic under
certain conditions. This regulation benefits those who have one or two Jewish
grandparents. But it could not have been successful if it had not been
accompanied by the repeal of the Aryan regulations regarding private clubs and
societies etc. But it has been made impossible for all time that the country
should ever again be ruled politically or culturally by Jews. The more severe
restrictions embodied in legal enactments or party regulations remain as they
were. The German people will be robust enough to stand this admixture of
foreign blood if they are in future protected from any further mixture. In
special cases the Führer can grant exemption from the Act.
The
National Socialist Party is the organization which represents the political
life of the people. It is the only political organization in the German Reich;
for the Act of July 15, 1933, stipulated that, the old party system having been
superseded, no new parties should be formed. The task of the Party is to
inspire each individual with a feeling of duty towards the nation. The Party
does not owe its position to tile State but exists in its own right. Actually
the present State existed ideally in the Party before it was established in
fact. All the laws passed by the new State only carry into effect the
principles of the Party and the Party holds the dominant position in political
life. Yet, in spite of holding this dominant position, those Germans who are
not members of the Party are not thereby precluded from playing their part in
political life; for the people as a whole have become the repository of
political power through the National Socialist Revolution. The position of the
Party in relation to the State was further defined in a special Act providing
for unification of the Party with the State. This Act was passed on December,
1, 1933. In practice the unity thus legally established had been already
brought about through the appointment of the Führer as Head of the State and
through a widespread personal union in Party and State offices. The Act
supplies the legal basis of this practical union. But the Act did not aim as
drawing a clear line of demarcation and division between the various spheres of
activity carried on by the Party and the State respectively. Its aim was rather
to open a way for combined work and collaboration. Externally the new position
was given formal expression in the appointment of the Führer's Deputy as Cabinet
Minister without portfolio. As such his duties do not appertain to any one
department of State. He devotes himself exclusively to Party affairs and
supervises the influence it exercises on many of the internal affairs of the
State. This combination of State and Party has given the National Socialist
State its characteristic form. This may be observed in all departments of
public life.
The
Reich Leadership Law, subsequently amended and supplemented by the Reich
Reconstruction Act of January 30, 1934, represented a rejection of the
hitherto existing forms of representative democracy. It placed new emphasis on
direct democracy by means of elections and plebiscites, the adoption of which
was greatly extended. Formerly the mistake was frequently made of identifying
democracy with peculiar institutions allied to it. For this reason people
generally assumed that because Germany had abandoned the system of having
several political parties and the system of legislation through parliamentary
vote, she had thereby abandoned the democratic principle itself. But democracy
signifies the sovereignty of the people and implies that political leaders
should be responsible to and representative of the majority of the people.
Accordingly if we consider the life of the German people from within we must
admit that, independently of the dispute about democracy or dictatorship, a
fundamental change has taken place in Germany and that this change amounts to
the establishment of a direct form of democracy. Nobody can say that the Führer
has not recognized the sovereignty of the people as the supreme ruling
principle in the State. He has repeatedly submitted his work to the judgment of
the people and no one has more right to act and speak in the name of the people
than he has. The democratic principle is also being put into practice through
the fact that we are steadily developing a political leadership as an emergent
from the mass of the people. A process of selection whereby really capable men
belonging to the masses of the people can be appointed to positions of
leadership without regard to origin or possessions, superior fitness only being
taken into account. In his speech to the Reichstag on January 30, 1937, the
Führer said: "By this process of selection, which will follow the laws of
Nature and the dictates of human reason, those among our people who show the
greatest natural ability will be appointed to positions in the political
leadership of the nation. In making the selection no consideration will be
given to birth or ancestry, name or wealth, but only to the question of whether
or not the candidate has a natural vocation for those higher positions of
leadership."
The Act
of July 14, 1933, set forth the legal procedure for the carrying out of a
plebiscite. It authorises the Reich Government to obtain the verdict of the
people as sovereign power, not only on matters of legislation but also on other
measures. If a particular law be the subject of a plebiscite the favourable
verdict of that plebiscite is not merely an act of approval but is in itself a
formal enactment. Within the first four years of the National Socialist regime
there have been four Reichstag elections and three plebiscites. The subjects of
the plebiscites were respectively Germany's withdrawal from the League of
Nations, the repudiation of the military clauses of the Versailles Treaty, the
assumption by Adolf Hitler of the office of President of the Reich, and the
reunion of Austria and Germany.
The
national unity brought about by the Revolution called for a corresponding unity
of the State in accordance with the unity of the popular will. Thus a long‑standing
desire on the part of the best elements of the German people finds its
fulfilment in constitutional law. The federal structure of the German Reich had
its origin in dynastic rule which, even under the Second Empire, was sovereign
in the respective federative states. The presidential decree of January 28,
1933, already empowered the Government of the Reich to take the necessary
steps, by the appointment of Reich Commissioners, for the maintenance of law
and order in the various federative states. The first decisive step towards
constitutional unification was the Act of March 31, 1933. This Act stipulated
that the composition of the parliaments of the federative states and also of
the local councils should be altered in accordance with the results of the
Reichstag election. Therewith those bodies were given a uniform political
direction and the entrusting of legislative power to the federative states according
to the principles laid down in the Reich Leadership Act led to the unification
of political leadership. The dissolution of the Reichstag on November 14, 1933,
led automatically to the dissolution of the federative parliaments and the
latter were not re‑elected. The Reconstruction Act of January 20, 1934, legally
abolished the federative parliaments. The Act of April 7, 1933, subordinated
the activities of the federative governments to the Government of the Reich. A
Governor was appointed for each of the larger federative states, such as
Bavaria and Saxony, and the smaller federative states were divided into groups,
a Governor being placed over each group. These Governors took over a number of
duties formerly carried on by the federative governments. As representatives of
the Führer, the Governors have to see that the work of the federative
governments is directed towards consolidating the political unity of the Reich.
One of the principal duties of the Governor is to appoint and dismiss prime
ministers and other ministers of the federative governments. He draws up and
promulgates the laws for his respective federative state. He appoints civil
servants and may dismiss those not appointed by the Reich. The Act of January
30, 1934, transferred the last remnants of federative sovereignty to the Reich.
In virtue of this measure the governments of the federative states became mere
channels of Reich administration. Legislation in the federative states requires
the approval of the competent Reich Minister. The administration of justice has
been taken over directly by the Reich. But in spite of this centralization of
all power in the hands of the Reich Government the position of a Governor is
maintained in the Act of January 30, 1935. He is a link between the Reich and
the federative authorities, and has been entrusted with some of the functions
of the Reich Government so that, where necessary, special local conditions can
betaken into consideration. In this way, notwithstanding a unification of the
Reich, the traditional characters of the various branches of the German people
will be maintained.
But the
laws which have been promulgated up to now do not represent the final stage of
constitutional development. They merely clear the way for further development.
The formation of a new Constitution is to take place not from above, but from
below, from the smallest cells in the community of the State, the Communes.
They were therefore the first to receive their Constitution, embodied in the
Local Government Act of 1935. But this Act is not only of interest for the
political life of the Communes. In many respects it is an attempt to try out on
a small scale things which may eventually be of importance for the Constitution
of the State. The Local Community Act is thus one of the foundations of the
National Socialist State, and on the ground prepared by it the new structure of
the Reich will be raised. The provisions contained in the Local Community Act
are derived from old and valuable German ideas of law. Its most important part
was advocated by Baron von Stein, for the aim is to give the Communes a great
measure of independence so that they can contribute to the fullest extent to
the good of the whole nation. The form which was chosen for the realization of
this purpose represents one of the first examples of the National Socialist
idea of the Folk Community as applied to the administration. The Local
Community Act does not therefore look upon the Commune as merely a technical
and economic administrative unit, but regards it as a community formed
according to the special conditions of the neighbourhood. The law encourages a
sturdy independence in each district so that each citizen may, through his work
in the narrower community of the Commune, cooperate sensibly and with a full
sense of responsibility in the work of the larger community of the nation. He
is therefore no longer a mere number among many millions, but has his special
function in political life. For this reason the Commune is not regarded simply
as a passive organ for carrying out the commands of the State, but within the
limited framework of its district bears the responsibility for fulfilling those
tasks which concern the National community. The nature of German local
government can be summarized under the following three headings:
1. In
principle the Commune has to carry out its own tasks on its own responsibility.
State supervision is limited to ensuring that the administration is according
to the laws and in harmony with the general policy of the State. But this
supervision cannot lead to the State taking over the organs of administration
when it disagrees with the measures adopted by a Commune. The Supervisory Board
can only prevent the putting into force of decrees which run counter to the
political aims of the Reich government: it cannot compel the local authority to
carry out any particular measures. The Commune is left to solve its own
problems in its own way. It is thus made sure that the State supervision will
in no way hamper the initiative and enterprise of the local authorities. It
must be left to the Commune to correct any mistakes which are made. In this
way every member of the Commune is trained in political sound thinking.
2. In
the person of the Mayor the Commune possesses its own particular organ for the
forming of decisions. Neither he nor the Aldermen are appointed by the State.
The Mayor is appointed by the Commune itself, and the Aldermen by the Deputies
of the Party. The Local Community Act stipulates that those citizens are to be
made Aldermen whose professions are representative of the Commune and its
special problems. This means that only those who are in close touch with the
life of the Commune and feel themselves therefore naturally responsible for its
welfare are qualified to be Councillors.
3. The
citizen of the Commune is called upon to play a part in the making of decisions
and to cooperate in the administration. The new Act is not concerned to ensure
that every citizen should once a year, by means of a secret vote, symbolically assert
his responsibility for the local administration: it is concerned to bring about
the actual collaboration of each citizen and to ensure that each member of the
community shall bear his actual share of responsibility. The maintenance of
certain technical forms is no guarantee that real self‑government exists. The
latter is guaranteed only when each citizen not merely has the right, but also
the duty to cooperate in the administration. There are many honorary workers,
and the Local Community Act requires that no one should refuse an honorary
position. The extent to which this honorary collaboration has been introduced
is shown by the following: of the 51,311 Communes in Germany 96.03% are ruled
over by Mayors whose posts are honorary. Out of a total 138,895 Aldermen 99.42%
are honorary. There are in addition 291,234 Councillors and 305,248 Assistant
Councillors; so that 777,973 citizens hold honorary positions whilst only 2,770
devote themselves to local government work as their chief profession.
Like the
State, the Commune is built up on the principle of leadership. This principle
does not merely mean that one person has the right to lead, it implies also
that this leader is the representative embodiment of the community. The
position of leader implies responsibility for the community as well as
authority in the community based on the work done for it. The Mayor of the
Commune must not be content to administer the Commune according to the law and
to increase its economic efficiency. He must not look upon the Commune merely
as an economic unit, but must always bear in mind that it is made up of
individual men and women who are his fellow‑countrymen. He must therefore
always seek their collaboration and not retire into his office to lead there a
secluded existence. The Local Government Act presupposes a living contact
between the Mayor and his Commune. Where such relations do not already exist
the Act opens the way for their introduction. This is the basic element in the
whole Act, and the life of the Commune is founded on it. The special work to be
done in each Commune depends on local conditions, canal construction e.g.,
which goes beyond the limits of any individual Commune is undertaken by
associations of Communes. Cultural policy presents a wide sphere of activity
for the Commune. The encouragement of cultural activity is especially important
for the Commune, because in local government it is easier than in State policy
to establish contact with the individual citizen. The community feeling which
grows from people living in close proximity is a good basis for cultural work.
In the economic sphere the activity of the Commune is restricted by the fact
that it may not enter into competition with the economic activity of its
members. The community can only undertake work which individual initiative has
failed to accomplish. The Commune is not on that account bound to confine
itself to the provision of water and electricity. It can also devote itself to
other tasks which are of service to the community. But commercial undertakings
must not be carried on merely for their own sake and for the sake of the profit
they may yield.
Since
the number of towns with over 10,000 inhabitants has grown considerably, we
find a professional bureaucracy side by side with the honorary workers. The
ordered administration of these towns demands a high degree of legal knowledge
such as the honorary worker cannot always be assumed to possess. But these
professional officials too are subject to the Mayor. They act only as the auxiliaries
of local government. This legal administration is not therefore in any sort of
opposition to the political administration, but is rather an integral part of
it. In every Commune a Deputy of the Party is appointed, and this Deputy has to
exercise his influence in such a way as to ensure, in accordance with the unity
of Party and State, that the work of local government is in line with the
general policy of the Reich. He must not interfere in matters of everyday
administration. But even in cases where the Mayor is bound to act in collaboration
with the Party Deputy the former is still held personally responsible for
decisions suggested to him by the Deputy. If a measure taken by the Mayor is
vetoed by the Party Deputy, and if the Mayor nevertheless still holds such a
measure to be necessary, he must lay the matter before the higher departments
of the State administration for their verdict. As far as finance is concerned
the powers of local authorities are restricted. The extraordinarily widespread indebtedness
of the period before 1933 made it necessary to strengthen the supervisory
powers of the State. But the Act concerning Taxes on Real Estate and Commercial
Transactions, of December 1, 1936, has already increased the financial
independence of the Communes to a considerable extent. A further easing of the
restrictions is planned for the future. The German conception of self‑government
does not regard the financial part as the decisive one. The essential is the
development of community life, the inculcation of sound political ideas and a
sense of political responsibility. The Local Government Act had laid down very
strict provision to ensure that the economic policy of the Communes would be
carried on in an orderly and sane manner. The Local Community Act also gave the
Commune the right to make its own laws. The Commune may formulate and enact a
special Constitution for itself, in accordance with the principles laid down
in the Act, and this Constitution does not require the approval of the Supervisory
Authority in so far as it does not affect the position of the Commune within
the framework of the State.
Apart
from the Local Community Act two further aspects of life within the State have
been given their final form: By the Act of May 21, 1935, military service was
declared a service of honour to the German People. The Army, Navy and Air Force
are the only bodies entitled to bear weapons for the State and they form a
training school for soldierly qualities. Further, by the Act of June 26, 1935,
general compulsory Labour Service was introduced. This institution plays a
vital part in the life of the people as moulded by National Socialist ideas.
Its purpose is to imbue every young German with a proper respect for manual
work and with the right attitude to labour.
CRIME AND PUNISHMENT
In no
field of German law was the desire for reform and for a revision of the
existing code so strong as in the field of criminal law. As far back as 1900
the Congress of German Jurists had stated that the reform of the criminal code
was one of the most urgent tasks which legislators had to fulfil. From 1909 to
1927 no less than five drafts were published; but the work remained
nevertheless uncompleted. This continual discussion of reform and search for a
solution led to a regrettable weakening in the position of the judicature and
made the combatting of crime more difficult. For this reason we were compelled
to direct our attention first of all to the reform of the criminal code which,
more than any other part of the law, expresses the political attitude of the
nation. In Autumn 1933 the Reich Minister of justice, acting on behalf of the
Führer, appointed a Commission for the drawing up of a criminal code; and this
commission, after three years' work, completed a draft which has now been
presented to the Reich Government for its consideration and approval. The
draft itself has indeed not yet been made known in all its details, but the
reports published about it have attracted considerable attention. Detailed
opinions have been expressed on it, so that the underlying ideas are now
generally known. The public discussion of the plans in the draft has done much
to clarify people's ideas on the subject, so that the ground has been well
prepared for the reception of the new law.
The
plans of reform have already been anticipated by two Acts the consideration of
which will enable us to get an idea of the present position of criminal law.
Both are quite at variance with the principles, on which criminal laws have
been based hitherto. The latter sought not only to protect society, but also to
protect the criminal against the arbitrary actions of society. The two new laws
seek simply to protect society against every sort of criminal attack. The task
of the criminal code must not be to safeguard the lawbreakers but only to
contribute towards the preservation and safeguarding of the people and to
combat those asocial elements which seek either to avoid their duties towards
the community as a whole, or to offend against the interests of the people
(Hitler, January 30, 1937). Above persons and things stands the community of
the people and any breach of loyalty is a legal offence. The interpretation of
the statutes according to the mere letter of the law had therefore to be
abolished. The Supplementary Law of June 28, 1935, lays down that a punishment
may be inflicted not only when the law prescribes it, but also when a sound
sense of justice requires punishment for the act committed, and when the
fundamental idea underlying a paragraph of the criminal code is applicable to
such an act. Hitherto criminal law had compelled the judge to keep closely to
the letter of the law. He had to do this because apart from the existing
statutes no law was recognized. A judgment, therefore, which was not based on a
strict interpretation of the words of a law necessarily appeared arbitrary. If,
like National Socialism, one does not limit the law to the written statutes,
one must admit that there may be cases not specified in the statute which are
in effect just as criminal as acts enumerated therein and therefore ought to be
punished.
The
Supplementary Act of June 28, 1935, does not state that judgment should be
based on the subjective feeling of the judge. It requires the latter to take
account of the people's sense of justice and then to decide according to an
objective standard‑the root principles of the particular paragraph of the
criminal code‑whether actions similar to those punishable in the law have been
committed. Only if such is the case he may inflict punishment, and this
punishment must be such as is prescribed by the law. The judge is thus bound by
the law; for every law represents a political decision of the Country's
leaders, the judge having therefore only that amount of freedom which the law specifically
allows. The law does not regard the people's sense of justice as being merely
any particular view of law held by the masses, but rather as the sound and
dispassionate judgment of the average citizen. The judge must therefore in
future base his judgments on the law of the German People.
With
this supplementary law the well‑known principle that only those crimes can be
punished which are exactly described in the law (nullum crimen sine lege) has
been abandoned. This principle has been described as one of the foundations of
criminal law in all States with European civilization, and for this reason it
was also included in the Weimar Constitution. The study of comparative law
reveals, however, that this view is incorrect. By "lege" we understand
only statutory law and not judicial decisions and prescriptive law, however
generally recognized the latter may be. In Great Britain most of the criminal
law has been revised and regulated by statutes. But homicide is still subject
to Common Law. However strictly statutory law may be interpreted the principle
"nullum crimen sine lege" cannot be maintained here. Apart from this
the English Statutes, through the variety of their language and the rules of
interpretation contained in them, give the judge an amount of freedom quite
unknown in the German courts. But prescriptive law exists outside the United
Kingdom, as for instance in three Swiss Cantons. In Denmark the criminal code
goes so far as to admit the application of the law to cases analogous to those
specified therein. In Norway, Sweden, and Finnland this manner of
interpretation is indeed not explicitly permitted by the law, but in practice
the analogy principle is applied in many important cases. It must, however, be
admitted that the unrestricted use of analogy would open the way to all sorts
of interpretation, so the judges themselves might finally evolve a law which
would be remote from the life of the people and opposed to that popular sense
of justice which should be the source of all unwritten law. For this reason
German law provides for a combination of root principles contained in the
written law and the popular sense of justice, so that these two factors may
correct each other. A number of the Federal States of North America have also
included in their Criminal Codes the provision that the application of the law
must not be restricted to a literal interpretation, but must take account of
the basic ideas of the law. The Criminal Code of the State of New York
contains, in Article 675, the provision that anyone who commits acts against
the person or property of another, who disturbs the peace or the public health,
or offends against decency, may be punished, although the act be not included
in the written catalogue of punishable acts. The claim that the administration
of public law in all civilized states demands strict interpretation of the law
and forbids analogy cannot be maintained. Even in those countries where this
rule is to be found a law may be so loosely drafted or a crime so widely
defined that in practice the judge is given complete freedom to decide as to
what acts the law applies. Thus when the Supreme Court of Switzerland asserts
that a person can only be prosecuted if he infringes some law there is no doubt
that what is meant is that no other punishment may be inflicted but what is
prescribed in the law. But this principle does not mean that those who draw up
a law are compelled to give a detailed list of all offences which might be
punishable under that law. They are, on the contrary, at liberty to substitute
technical names for groups of crimes or to use some general conception of
crime. Thus in the application of a statutory law the conception of larceny may
be interpreted by the judge according to his own views of law. This practice
too is provided for in the Supplementary Law of June 28, 1935. But it has to be
stated that the departure from the principle nullum crimen sine lege, does not
mean abandonment of nulla poena sine lege. Only such kinds of punishments can
be inflicted which are known to the code.
The
purpose of criminal law is to defend the community against all that may
endanger it and therefore the Supplementary Law of November 24, 1933, contains
provisions to combat habitual crime, and measures to safeguard the public.
Formerly the criminal had to be released after he had served his sentence, even
when it could be foreseen that his asocial disposition would lead him to abuse
his liberty by committing further acts against the social order. How often did
the unhappy mother of murdered children or violated girls ask the Court if it
was really necessary to set the criminal free again to attack unfortunate
creatures and inflict serious injury on the community. But this law enables the
judge to sentence dangerous habitual criminals to a severer punishment than is
prescribed for normal cases. The extent to which the punishment may be
increased is stated in the Supplementary Law itself, A dangerous habitual
criminal is a person who repeatedly ‑- generally speaking, three times ‑-
commits an offence, and who shows from the general circumstances of the cases,
that he not only habitually commits crimes but that he is, for the future as
well as the present, a danger to society. These provisions therefore refer only
to serious crimes, and not to such misconduct as habitual begging etc. Apart
from increasing the punishment, the law prescribes preventive detention as a
final means of protecting the public. This is not considered a penal measures.
The crime itself is punished by imprisonment, but if that is not sufficient to
protect the community for the future the criminal is interned in order to keep
him from doing further harm. This internment lasts until the criminal is no
longer held to be a danger to society, and a periodical examination ensures
that the term is not extended beyond what is necessary. A further protective
measure is the castration of dangerous habitual sex criminals, a measure which
exists also in certain North American States and in Denmark. This is indeed a
permanent and serious interference with the bodily integrity of the criminal,
but it makes it possible to preserve him from a complete loss of freedom or
long internment. By means of this operation the urge to commit sexual offences
is at any rate so weakened that it no longer represents a source of danger. The
Law also makes it possible to have a criminal transferred to a home for
inebriates or to a labour settlement, if there is a prospect of educative
methods being successful in combatting the criminal tendency. In the same way
the Law provides that, in cases where the Court is bound to acquit the accused
on account of insanity, it may order the accused to be kept in an asylum or
home. The success of these measures for dealing with criminals is shown by the
following figures: The year 1935 showed, in comparison to 1932, the following
reduction in crime: Homicide 33.9%, robbery with violence 64.2%, arson 22.8%.
(The reduction in the figures for larceny cannot be given as a basis for
comparison since they have been affected by a number of amnesty laws.) Those
who have had any experience of practical work in connection with the fight
against crime can bear witness to the deterrent effect which these measures
have on habitual criminals. The Supplementary Law of June 25, 1935, also
contains a provision which, based on the idea of the national community, makes
it obligatory on every individual citizen to render assistance in an emergency.
Anyone who does not assist in cases of general emergency or accidents, although
he was in a position to do so without endangering his own person, is liable to
punishment.
Although
these two supplementary laws have perhaps anticipated the most vital measures
in the new Criminal Code, the latter will nevertheless contain so many
innovations that we must give a short account of it here. The new code is above
all a further step on the way towards the establishment of a pure principle of
guilt. In doing so it takes account not only of the psychological connection
between the criminal and his crime, but also ethical considerations. In future
criminal law will hold that for guilt to be established it is necessary not
only to demonstrate that the criminal knew what the results of a crime would be
and intentionally agreed to them, or that the offence was brought about through
a lack of reasonable care. It will be necessary to show also that the offender
knew, or might have known, that he was doing wrong. A person may commit an act
which has only just been made an offence by a newly promulgated law, or the
circumstances may be so complicated that this may be a reason why he could not
know he was doing wrong. It has always been considered unfair that such a
person should be punished merely because he was conscious of what he was doing
at the time of the offence. Thus an old woman of German nationality who moved
from Switzerland in order to settle down in Germany and knew nothing of the
foreign exchange regulations was condemned for not having registered a small
foreign account, although there was no doubt as to her ignorance of the legal
regulations. Since the jurisprudence of the future will regard crime not merely
as an offence against the explicit provisions of the law, but also as an attack
on the community, as an act directed against the life of the nation, it will be
necessary to take into account whether an offender himself recognized, or could
have recognized, this aspect of his offence. Judges will indeed have to
investigate very carefully the offender's claim that he was unconscious of
having done wrong, and the claim will certainly not be allowed if it refers to
acts which do not accord with the fundamental views of the nation on right or
wrong. The claim that a criminal did not know that stealing and murder are forbidden
will obviously not be entertained, but in the above mentioned case of the old
lady the accused would be acquitted, which would only be in harmony with sound
ideas of justice. The demand that the punishment of an offender requires not
only that the latter knew what he was doing, but also that he knew he was doing
wrong, represents an important departure from the doctrine of guilt as
incorporated in the criminal law of all European States. It means in fact that
in criminal law justice and ethics are no longer fundamentally separate. If we
realize that the individual no longer exists apart from the community, and
therefore can no longer have a distinct, and perhaps different ethical code,
but is, as member of the community, the representative of its ethical views,
then we must admit that this change in the conception of criminal guilt follows
inevitably. Attempted crime will also be treated differently. According to the
law existing hitherto, this was punished only in reference to serious crimes
and then to a lesser degree than for the crime actually committed. An attempt
is distinguished from a crime actually committed by the‑fact that the purpose
of the crime has not been completely attained. Since the coming criminal law
concentrates on the intention to commit a crime it must punish any attempt to
do so and only admits a mitigation of penalty when the non‑accomplishment of
the crime can be shown to be due to a low intensity of will on the part of the
criminal.
The second part of
the draft, which describes the separate penal offences, has also been extended
to an important degree. The grouping has been carried out according to the
importance of the object of the criminal act. First and foremost comes the
protection of the people against crimes of treason, then comes the protection
of national resources, of the nation's life (race and heredity, defensive
power, labour power, national health), of the moral and spiritual ideals of the
people (marriage and the family, morality and religious beliefs, respect for
the dead, protection of animals), of commerce and national property, and
further the maintenance of national institutions and order (leadership of the
people, public order, justice) and the maintenance of honesty (offences against
good faith, property, and criminal self‑interest). In working out this new
criminal law it was possible to draw on the results of decades of work done by
learned jurists. But the fundamental provisions of former supplementary laws
have also been incorporated in order to assure the uniformity of criminal law.
One of
the most important parts of the new criminal code are the rules concerning
penalties and the assessment of the penalties for each particular law. There
has been no important change in the method of punishment. The future criminal
law will also contain the death penalty, penal servitude and imprisonment. It
provides, in addition, for fines, but makes these dependent on the financial
circumstances of the individual, the daily income of the offender being taken
as a basis for calculation. Penal arrest is abandoned. Imprisonment in a
fortress as 'custodia honesta' is maintained. In laying down the separate
penalties care has been taken in regard to punishments of extreme severity,
such as the death penalty, to provide the alternative of penal servitude, so
that the judge himself may have the possibility of commuting the death penalty
in cases where the degree of culpability may not equal the objective wickedness
of the crime. Above all the punishment inflicted in each individual case must
depend on the actual guilt of the offender. In meting out punishment the judge
must take into account the criminal intent, in cases of negligence the degree
of carelessness and the indifference of the offender as regards the outcome of
his offence, also the necessity of safeguarding the community, and the danger
and injury caused by the offender, as well as his behaviour after the offence.
Thus the law aims at imposing penalties which will correspond to each crime
viewed as a whole, for only then can criminal law be an effective weapon for
the protection of society. It is not intended to introduce the punishment of
flogging, for the effects of this punishment in other countries have not been
such as to recommend its use.
The
recasting of criminal law will also lead to new rules for the trial of criminal
cases. The great emphasis laid on the community in criminal law will imply an
extensive participation of the lay element in the administration of justice.
The preliminary proceedings, which aim at clearing up the facts of the crime,
will be placed in the hands of the Public Prosecutor. In important points he
will have to cooperate with a judge. In the main trial the judge, who
independently administers justice in the name of the people, is entirely free
from the influence of the public prosecutor, both as regards the conduct of the
trial and the handling of the case. The establishment of special courts for
individual groups of crime which are specially important and delicate, e.g.
political offences, will be maintained as permanent institutions, since their
utility has been proved. A special degree and special kind of expert knowledge
is required in dealing with these crimes, so that they can only be entrusted to
judges trained in this special sphere. But work on the rules for the conduct of
trials has only just begun, so that it is not as yet possible to say anything
final on this subject.
LABOUR
Since
1933 there has been an energetic development in all aspects of the law dealing
with labour. Labour organization has also been reformed through the
Organization of Labour Act (January 20, 1934). Connected with that measure is a
revised Labour Courts Act, as well as an Act concerning the Introduction of the
Work Book (February 26, 1936) which provides the authorities with the data necessary
for a planned distribution of labour. Rules governing labour contracts have
also been laid down. The Act for the Protection of Wages in Homework (June 8,
1933), and the Homework Law (March 23, 1934) the essential part of which
protects the worker from a lowering of wages, but which also makes it possible
to prohibit homework tending to endanger life, health, and morality, further,
the Hours of Work Act (July 26, 1934), the Act concerning Hours of Work in
Bakeries and Confectioner's Shops (June 29, 1936). The eight‑hour day is
prescribed as a general rule. In concerns dangerous to health the time of work
must be reduced. In the sphere of labour protection we have regulations
concerning work with compressed air (May 29, 1935), an Act regarding the Accomodation
for Workers in the Building Trade (December 13, 1934), which provides for a
healthy and adequate accomodation for workers (male and female) in coal mines,
in roller and hammer works and in the glass industry (March 12, 1933). In
addition to the reorganization of sickness, invalidity and accident insurance,
social insurance as a whole has been reformed so as to ensure its efficient and
economical working.
All
these Acts can be easily fitted into the existing framework of this department
of law, but merely to give their names does not tell us anything of the
completely new attitude towards everything concerning labour law. The former
labour law centred on the worker's associations and recognized these
organizations for class‑conflict as statutory corporations, thus giving them a
place in the life of the State. But such associations are now completely at
variance with the ideas embodied in the Labour Organization Law. Labour
organization has undergone a fundamental change. The National Socialist State
has not sought to make a compromise between the National Socialist and the
capitalist organization of industry and labour. In place of the opposition of
Labour and Capital, of employer and employed, the Labour Organization Act has
set up the Works Community, which exists to serve the whole people. "To
serve the highest interests of the community of the people they are not
employers and employed, but labour deputies of the people." (Hitler at the
Motor Exhibition, 1935). Work in every form is the fulfilment of a duty towards
the community. For every German, work means the fulfilment of life's purpose.
Therewith the nonsensical idea that manual work is on an inferior plane is
finally refuted. The skilled worker at the boring machine is fulfilling a much more
essential task than that of the clerk in the factory office, even though the
latter may call himself a "brainworker". The value of any work done
within the framework of the Folk‑Community depends of its necessity for the
life of the nation. The meaning of social honour lies in the fulfilment of this
duty and in respect for the worker. Honour is the basis of our national life
and the most precious possession of our people. It must, by its very nature, be
all inclusive. It must penetrate every sphere of national life and be its basic
principle. Community and Honour are inseparably bound together. It is therefore
the foundation of the Works Community.
Labour
is not regarded as being merely the physical capacity to perform certain tasks.
Labour is an activity that is of value to the community. Labour as a whole is
national labour, and each individual worker is only a member of the working
Folk Community, helping to accomplish the task which the people as a whole have
to fulfil. The laws of national life also require labour as a means of
selection and of stimulating spiritual and moral forces. Labour is thus a
communityforming factor. We cannot therefore consider labour and the circumstances
and conditions under which it is carried out, matters such as the worker's
safety, conditions of dismissal and holidays, working hours and wages, merely
as subjects for private agreements which the community has to put up with,
however harmful they may be. They must rather be regulated by the law which
governs the life of the whole people, for they concern the whole community.
The work
in each individual factory or business is therefore carried out for the common
benefit of people and state, and its success or failure affects the fate of the
whole nation. The position of the employer as leader of his business is
subordinate to this task. His work in cooperation with the workers he employs
is based not on mutual services rendered, but on the common work done for the
nation. The employer's position as leader does not therefore mean that he is
master in his own house and can do what he likes. It means rather that he is
responsible for what his firm does for the community. The employer is bound to
his workers by the fact that they are all participating in the labour of the nation.
The essence of this cooperation lies in social honour, which means performances
of duty, and respect for every kind of work. To offend against this principle of honour is to infringe the order
of things embodied in the Labour Organization Act.
The form
given to the Works Community necessitates that it should be self‑governing. The
organ of this self‑government is the Mutual Trust Council, which consists of
the leader of the firm and members elected by the workers. Its task is above
all to assist in the drawing up of the works regulations, to see that suitable
measures for protection against accidents are taken, and to strengthen mutual
confidence.
The
carrying out of this labour code is in the hands of the Labour Trustees who are
appointed for each district. Their task is however not to use official means of
compulsion to bring about the formation of Works Communities. A Community
cannot be created by compulsion. The Labour Trustee must, by using his personal
influence, by education and advice of a general and particular nature, ensure
that State compulsion is in general unnecessary. The activity of the Labour
Trustee up to now has shown that although they have used, when necessary, the
powers given them under the Act, they have avoided any serious interference
which might have led to the failure of their efforts.
The
Labour Trustees are supported in their work by the German Labour Front, which
is the community of all working Germans. It is a social self‑governing
corporation. As such it took over the former social institutions of the workers
and has extended and perfected them by means of a mighty organization. It
further helps its members by improving the conditions under which they live and
assists them in the event of unforeseen misfortunes. Since the organization
includes employers as well as workers it can exercise a considerable influence
on working conditions in the individual firms and on the formation of Works
Communities in accordance with the principles laid down by the Labour Trustees.
If there is deliberate and malicious opposition to the orders of the Labour
Trustee, the latter may appeal to the Courts of Social Honour. Paragraph 36 of
the Labour Organization Act gives the exhaustive list of actions which are
punishable as offences against social honour. By establishing these courts the
State has embarked on something entirely new. They have been entrusted with the
task of elaborating through their own decisions a law of national labour.
Misdemeanours enumerated in the Act are malicious exploitation of labour,
offences against a person's honour, malicious endangering of industrial peace,
breaches of general decrees issued by the Labour Trustee, and betrayal of
commercial secrets by the members of the Labour Councils. But it is assumed
that all such actions proceed from an asocial attitude of mind. The extent and
effects of these penal regulations will be best shown by means of a few
practical examples.
The
Courts of Honour have passed sentences on account of malicious exploitation of
labour for the following actions: the inadequate payment of work in violation
of wage agreements, retention of wages, nonpayment for overtime, excessive
work, bad conditions of board and lodging, refusal of holidays, and breaches of
important regulations for the avoidance of accidents. There is also the case of
an employer who did not allow the workers to do their jobs in peace and quiet,
but was continually bothering them and urging them on with abusive language. An
employer was condemned for an offence against honour because he refused to have
the sick children of a worker taken to hospital in a neighbouring town in
accordance with the doctor's instructions; he said he wished to spare his
horses. His action in this case was not an insult to honour within the meaning
of the Criminal Code, but an offence against the honour due to every member of
the working community. In connection with the disturbance of industrial peace
the following offences have been dealt with: the provoking of labour disputes;
demonstrations against the employer by misrepresentation; undermining of
confidence in cooperation among the workers so as to disturb the proper working
of the firm. In 1934, 64 actions were brought, in 1935 204, of which 164 were
concluded by the end of the year.
The penalties
which the Social Courts of Honour may impose are fines, reprimands and
warnings. But they may also order removal of a worker from his place of work,
or deprive an employer of his title of leader of the firm. In assessing the
severity of the punishment, not merely the isolated action but the asocial
attitude of the offender is to be considered. Of the 164 cases dealt with, 8
ended in acquittal, in 25 cases fines of under 100 Marks were imposed, in 45
cases fines of between 100 and 499 Marks, in four cases fines of between 500
and 999 Marks, and in four cases a fine of over 1000 Marks. Further, 21
reprimands and 19 warnings were issued. There has been one sentence of removal
from the place of work, and in 9 cases the employer was deprived of his functions
as leader of the firm.
If an
offence is not only against social honour but against the community directly,
the Labour Trustee can appeal to the ordinary courts, which may impose a fine
or imprisonment.
In
intimate union with the organisation of national work formed by the National
Labour Act we find the planned distribution of labour throughout the whole
country.
THE PEASANT AND THE LAND
In no
sphere of law have such fundamental changes been made as in that regarding
agriculture. Formerly part of the civil code had been devoted to this special
department of national life. The changes which have taken place here are even
more comprehensive and far‑reaching than those brought about by the Labour
Organization Act. They aim at the reorganization and preservation of the
farming class as one of the chief sources of national strength, and to do this
a new organization, the Reich Agricultural Estate, has been founded. With the
same end in view, agricultural indebtedness has been generally reduced, and the
farms are protected against distraint; further, a marketing system has been set
up which assures agriculture a market for its products at a reasonable price
and at the same time is a guarantee that the German people will be able to live
from the products of their own soil. The organizational and economic
regulations are very extensive. They have in many cases taken over the
functions exercised formerly by private institutions for the fixing of prices.
But this material aspect too is subordinate to the national aim of maintaining
and developing a prosperous peasantry. This aim is of decisive importance for
the future of the nation. The farmer linked up with the soil cultivated by him
is the never‑failing source of national strength.
The Heredity Farms
Act is the keystone for the whole law regarding the farming class. It is the
foundation of all legal measures in this portion of the German Statutes. It
proceeds from the idea that the farmer's family is linked up with the soil
through their work. The law takes the farm as a living cell in the folk
organism. The Heredity Farms Law does not legislate for the soil alone but for
all that lives from it and grows on it too. It takes fields, farm homesteads
and cattle as a natural unit in the centre of which stands the farmer himself.
This union is regarded as a permanent one. Therefore the farm shall remain to
the descendants or relatives as an inheritance in the hands of free German
peasants. For this reason the Act makes it impossible to change the normal
inheritance in a will. In general the eldest son inherits the farm. Female
issue inherit only when there is no male issue possessing the necessary qualification
for taking over the farm. The economic position of the farm is secured by a
prohibition against mortgages and sales. A farm can only be regarded as an
hereditary farm when it is capable of supporting a family and cannot be larger
than 300 acres. In this way the measure furnishes a guarantee for the future,
that as large a number as possible of medium and small farms shall be spread
over the whole country. Independent Courts, called Heredity Farm Courts, ensure
that these measures are carried out.
German
agriculture has been further reorganized by a system of land settlement.
Planned settlement on the land serves above all to increase the density of
population in the more thinly populated parts of Germany. It helps to
strengthen the attachment of the people to the soil tilled by them, and it
ensures that this soil shall yield sufficient food by reclaiming land from
unfertile areas or by dividing up indebted estates not intensively cultivated
and building new farms and villages on them. Each farm must have enough land
attached to it to provide a livelihood for a‑family with several children.
Variety in the size of farms is to be aimed at, and uniformity is to be
strictly avoided. The most stable unit is the farm which can be run by the
farmer and his family, and this farm is therefore specially favoured. But
provision is also made for farm labourers since they are needed by the larger
farms. And in accordance with local conditions artisans and institutions for
common use (cooperative creameries for example) must also be provided.
But in
order to put agricultural estates on a sound economic basis it was necessary to
regulate indebtedness. The Act of June 1, 1933, makes it possible to reduce
debts to a level in accordance with safety and to ensure their repayment from
the yield without endangering the farmer's livelihood. There are two ways of
doing this. On the one hand there is a procedure for reducing debts by which
the creditor voluntarily grants a remission, making it possible to draw up a
plan for paying off what is owed. On the other hand if a reduction of debts is
necessary and the creditors are not willing to grant remissions, there is a
procedure for compulsory adjustment. The debt regulation aims at freeing the
owners of farms, woods and market gardens, who need relief from their debts to
such an extent that, after paying for the upkeep of their families, they may
pay off their debts according to the adjustment plan from the yield of their
land. The plan for the abolition of debt is supplemented by protection from
distraint for agriculture, so as to prevent property being confiscated and
things beings auctioned which are necessary for the running of the farm.
The
organization of the Reich Agricultural Estate is based upon the idea of self‑government
by corporation. The basic Act was promulgated on September 13, 1933, and a
large number of supplementary decrees have ensured its proper application. Its
aim is to bring together all the citizens of Germany who can be considered as
belonging to one unit on account of their professional activity as farmers, as
members of agricultural associations, as wholesale or retail dealers in
agricultural products, as owners of land which can be used for agriculture, or
as engaged in exploiting agricultural products. The Reich Agricultural Estate
has been given the task of training its members to a full sense of their
responsibility towards the people and to become the solid foundation on which
the nation can grow and maintain itself. It watches over professional honour
which here too is the basic element of the community. It also has to care for
its members from a social and cultural point of view. Since the Decree of
December 8, 1933, the Reich Agricultural Estate is directed by the Reich Farm
Leader who has at his disposal an administrative staff. In all important
questions he is advised by the Reich Farm Council. The Reich Agricultural
Estate is divided into Regional Associations, District Associations and Local
Associations, so that in spite of the central organization, attention is paid
to local conditions. Self‑administration is carried out through these bodies,
every member of which serves in an honorary capacity.
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