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STUDY OF NAZI COURTS FULL OF GRIM LESSONS FOR TODAY  
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Tom Sandborn
June 24, 2025
Rabble (Canada)
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_ While the most horrific acts of injustice in German courtrooms may
have occurred during the reign of Hitler, in many ways the courts had
been corrupted by right-wing extremism years before, and helped
facilitate his rise to power. _

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Review: Hitler’s Justice: The Courts of the Third Reich
By Ingo Müller
Harvard University Press, January 1, 1991, $21.99

As autocrats near and far wage war on independent judiciaries, a study
of courts and judges under the Third Reich provides us with some
important learnings for our current world crisis. _Hitler’s
Justice: The Courts of the Third Reich_, by German legal scholar Ingo
Müller, was originally published in Germany in 1987, and an English
version appeared in 1991. Despite the time that has elapsed since
Müller’s book first appeared, it is as timely today as it was then.

Although the book’s subtitle says its topic is the period of Nazi
power from 1933 to 1945, the author’s goals are more ambitious than
that. Müller not only wants to consider the despicable role played by
German courts and jurists during Nazi rule; his larger narrative
captures the history of German courts from Bismarck to the late 20th
century.

The compliant courts that did so much to endorse, rationalize and
implement Nazi policies did not spring forth from Hitler’s brow the
day he became Chancellor. Nor did their impacts on German and world
history end in 1945, and Müller does an impeccable job of telling the
backstory of the Nazi courts, as well as tracing the impact of the
complicit jurists who were allowed to retain their positions and
influence after the war. The parallels with current trends around the
world are chilling and instructive.

In a move that the current American president would envy, one of
Chancellor Otto von Bismark’s first acts when the German Empire was
founded in 1871 was to purge the German judiciary of liberals. Long
before Hitler took the office formerly held by Bismarck, the German
courts had a decidedly conservative and democracy-skeptical tone, as
evidenced by draconian sentences imposed on labour leaders, socialists
and social democrats.

The rightward tilt of German courts, even under the Weimar Republic,
was notable. It is interesting, on this point, to contrast the 
courts’ treatment of two significant upheavals during the tumultuous
period after the end of WWI. After a military “white terror”
murdered thousands of the supporters of the short-lived Bavarian
Socialist Republic in 1919, German courts followed up, not with
charges against the murderous troops, but with charges against leaders
and supporters of the left-wing insurgency. One leader was sentenced
to death and over 2,000 supporters were sentenced to jail. Over 4,400
years of jail time were served by the convicted militants.

In contrast, the leaders and supporters of the “Kapp putsch”, a
right wing insurgency that Müller calls “the most serious instance
of treason in the fourteen year existence of the Weimar Republic”
were mainly given amnesty, and the one leader who was imprisoned was
given the minimum penalty of “fortress arrest” (Festungshaft), a
form of “honorable arrest” reserved, it seems, for right-wing
terrorists and other friends of the court.

Hitler and his followers received the same judicial soft handling
after the failure of 1923’s “Beer Hall Putsch.” The future
dictator used his time under the white-collar comfort of  “fortress
arrest” to write his vile manifesto _Mein Kampf_, and the courts
failed to deport him to his native Austria, as required by German law.
The trial judge said that Hitler and his thugs had been “…guided
in their actions by a purely patriotic spirit and the noblest of
selfless intentions,” a line that would have been right at home in
the Trump pardons for January 6 insurgents.

In another moment from the past that seems to eerily prefigure Trump
and his attitude toward “rogue judges,” Hitler, allowed to deliver
a two hour rant at the trial of some of his military supporters,
issued an unequivocal threat, saying that when he came to power,
“…then a new Supreme Court will be assembled , and before this
court the penalty will be exacted for the crime of November 1918. Then
you may be sure heads will roll in the sand.”

We should always doubt the promises of an autocrat, but take his
threats very seriously indeed. No one should doubt the bad will behind
Hitler’s threats, but he did not need to behead the judges to get
compliance. Once eased into prominence in part by judicial collusion,
Hitler went on to commit some of the most monstrous crimes known to
history, and few judges stood up against him. Rather, the courts were
complicit in enforcing racist laws and colluded in the genocidal
project to a horrifying degree. The practice run at genocide committed
against mental patients was enabled by lawyers and judges, as were the
mass murders of Jews, Roma, queers and communists. Like the ordinary
men Daniel Goldhagen dubbed “Hitler’s Willing Executioners” in
his searing history of the same name
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the judges and lawyers left in place after Jews and social democrats
were purged from the bench went along with genocide rather that risk
resistance.

Müller cites only a few judges who resigned rather than collaborate.
Most went along to get along, and helped unleash a particular kind of
hell in what was seen as the most civilized part of the world. And
many went on without accountability to careers of power and influence
after the war, as Müller shows in his final chapters. All this raises
the question of the roots of fascism, a topic more and more timely
these days.

In a kind of inverse version of the great man theory of history, many
observers have wanted to see Hitler as a diabolically charismatic
first mover, the main driver of the rise of fascism in Germany and the
Holocaust. While this is a comforting theory, absolving all of us who
are not monsters like Hitler of any responsibility for the nightmares
of history, it is not entirely persuasive. Clearly the rise of fascist
regimes in Italy, Portugal and Eastern Europe suggests that larger
social forces were in play, currents of history and economics that
swept Europe toward the falls in the 20th century. In our time, when
wanna be fascists rule more of the world, this is a compelling puzzle.

Glow in the dark monsters like Hitler and Mussolini fanned the flames,
but the kind of compliant, anti-democratic judges described by Müller
laid the fire and provided the kindling, as did the big money
interests who supported the rise of Nazism because it promised to
break unions and smash workers’ parties. A few of these “fascism
enablers” recoiled from the consequences of their deal with the
devil, but many remained Nazis as long as it was opportune, then
smoothly transitioned to roles of power and influence in the new West
Germany mandated by the victorious Western powers, a process that
Müller shows in some detail.

This is an important book with  lessons for us all. Already the lurch
toward fascism embodied in the US by Trump has met more resistance
than Hitler and his thugs faced in the 20s and 30s, and
many American  lawyers  have spoken out on their commitment to the
rule of law
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not to Trump or any other monarch.

They are to be commended and emulated. We need to learn the lessons of
history, as Santayana warned us, lest we be condemned to repeat it.
The widespread No Kings demos held during the weekend I was writing
this review show how many Americans agree. Progressives and workers
around the world are joining them in the resistance. Let’s hope we
win. The stakes are high.

_TOM SANDBORN lives and writes on unceded Indigenous territory in
Vancouver. He is a widely published free lance writer who covered
health policy and labour beats for the Tyee on line for a dozen years,
and currently reviews BC books regularly for the Vancouver Sun. He has
worked as a transit worker and truck driver, child care worker,
laborer, hospital orderly, Gestalt therapist, fund raiser and
organizer. He has been a social justice and environmental sanity
activist all his adult life._

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* History
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* Germany
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* Courts
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* Adolf Hitler
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* right wing extremism
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* Book Review
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