III

Weimar’s radically modernist culture was obsessed, to what many middle-class people must have felt was an unhealthy degree, by deviance, murder, atrocity and crime. The graphic drawings of an artist like George Grosz were full of violent scenes of rape and serial sex killers, a theme found in the work of other artists of the day as well. Murderers were central figures in films such as Fritz Lang’s M, plays like Bertolt Brecht’s The Threepenny Opera and novels such as Alfred Döblin’s modernist masterpiece, Berlin Alexanderplatz. The trials of real serial killers like Fritz Haarmann or Peter Kurten, ‘the Düsseldorf vampire’, were nationwide media sensations, with graphic reporting in the press catering to a mass readership that followed every twist and turn of events. Corruption became a central theme even of novels about Berlin written by foreign visitors, as in Christopher Isherwood’s Mr Norris Changes Trains. The criminal became an object of fascination as well as fear, fuelling respectable anxieties about social order and adding to middle-class distaste at the inversion of values that seemed to be at the centre of modernist culture. The huge publicity given to serial killers convinced many, not only that the death penalty had to be rigorously enforced against such ‘bestial’ individuals, but also that censorship needed to be reintroduced to stop their celebration in popular culture and the daily boulevard press.¹⁵⁰ Meanwhile the inflation and disorder of the postwar years had seen the emergence of organized crime on a scale almost rivalling that of contemporary Chicago, particularly in Berlin, where the ’ring associations’ of the burgeoning criminal underworld were celebrated in films like M.¹⁵¹

The feeling that crime was out of control was widely shared among those whose job it was to maintain the law and order that so many people thought was now under threat. The entire judicial system of the Wilhelmine period was transported unchanged to the Weimar era; the Civil and Criminal Law Codes were almost entirely unamended, and attempts to liberalize them, for example by abolishing the death penalty, ran into the sands.¹⁵² As before, the judiciary was a body of men trained for the judge’s role from the beginning, not (as in England for example) appointed to the judiciary after a relatively long career at the bar. Many judges in office during the 1920s had thus been members of the judiciary for decades, and had imbibed their fundamental values and attitudes in the age of Kaiser Wilhelm II. Their position was strengthened under the Republic, since it was a basic political principle of the new democracy, like others, that the judiciary should be independent of political control, a principle quickly and uncontroversially anchored in Articles 102 and 104 of the constitution. Rather like the army, therefore, the judiciary was able to operate for long stretches of time without any real political interference.¹⁵³

The judges were all the more independent because the vast majority of them regarded laws promulgated by legislative assemblies rather than by a divinely ordained monarch as no longer neutral but, as the chairman of the German Judges’ Confederation (which represented eight out of the roughly ten thousand German judges) put it, ‘party, class and bastard law... a law of lies’. ‘Where several parties exercise rule,’ he complained, ‘the result is compromise laws. These constitute mishmash laws, they express the cross-purposes of the ruling parties, they make bastard law. All majesty is fallen. The majesty of the law, too.’¹⁵⁴ There was some justification, perhaps, in the complaint that the political parties were exploiting the judicial system for their own purposes and creating new laws with a specific political bias. The extreme right- and left-wing parties maintained specific departments devoted to the cynical business of making political capital out of trials, and kept a staff of political lawyers who developed a battery of highly sophisticated and utterly unscrupulous techniques for turning court proceedings into political sensations.¹⁵⁵ No doubt this further contributed to discrediting Weimar justice in the eyes of many. Yet the judges themselves, in the altered context of the advent of a parliamentary democracy, could be regarded as exploiting trials for their own political purposes, too. After years, indeed decades, of treating Social Democratic and left-liberal critics of the Kaiser’s government as criminals, judges were unwilling to readjust their attitudes when the political situation changed. Their loyalty was given, not to the new Republic, but to the same abstract ideal of the Reich which their counterparts in the officer corps continued to serve; an ideal built largely on memories of the authoritarian system of the Bismarckian Reich.¹⁵⁶ Inevitably, perhaps, in the numerous political trials which arose from the deep political conflicts of the Weimar years, they sided overwhelmingly with those right-wing offenders who claimed also to be acting in the name of this ideal, and cheered on the prosecution of those on the left who did not.

In the mid-1920s the left-wing statistician Emil Julius Gumbel published figures showing that the 22 political murders committed by left-wing offenders from late 1919 to mid-1922 led to 38 convictions, including 10 executions and prison sentences averaging 15 years apiece. By contrast, the 354 political murders which Gumbel reckoned to have been committed by right-wing offenders in the same period led to 24 convictions, no executions at all, and prison sentences averaging a mere 4 months apiece; 23 right-wing murderers who confessed to their crimes were actually acquitted by the courts.¹⁵⁷ Of course, these statistics may not have been entirely accurate. And there were frequent amnesties of ‘political prisoners’ agreed on by the extreme parties in the Reichstag with enough support from other political groupings to get them through, so that many political offenders were released only after serving a relatively short time in gaol. But what mattered about the behaviour of the judges was the message it sent to the public, a message bolstered by numerous prosecutions of pacifists, Communists and other people on the left for treason throughout the Weimar years. According to Gumbel, while only 3 2 people had been condemned for treason in the last three peacetime decades of the Bismarckian Reich, over 10,000 warrants were issued for treason in the four - also relatively peaceful - years from the beginning of 1924 to the end of 1927, resulting in 1,071 convictions.¹⁵⁸

A substantial number of court cases dealt with people brave enough to expose the secret armaments and manoeuvres of the army in the press. Perhaps the most famous instance was that of the pacifist and left-wing editor Carl von Ossietzky, who was condemned in 1931 to eighteen months’ imprisonment for publishing in his magazine The World Stage (Die Weltbuhne) an article revealing that the German army was training with combat aircraft in Soviet Russia, an act that was illegal according to the terms of the Treaty of Versailles.¹⁵⁹ Another, equally celebrated case involved the left-wing journalist Felix Fechenbach. His offence, committed in 1919, was to have published Bavarian files from 1914 relating to the outbreak of the First World War, because this had - in the opinion of the court - damaged the interests of Germany in the peace negotiations by suggesting an element of German responsibility. Fechenbach was sentenced to eleven years’ imprisonment in Munich by a so-called People’s Court, an emergency body set up to dispense summary justice on looters and murderers during the Bavarian Revolution of 1918.¹⁶⁰ These had been adapted to deal with ‘treason’ cases during the counter-revolution of the following year. They were not wound up until 1924 despite their outlawing by the Weimar constitution five years previously. The creation of these courts, with their bypassing of the normal legal system, including the absence of any right of appeal against their verdicts, and their implicit ascription of justice to ‘the people’ rather than to the law, set an ominous precedent for the future, and was to be taken up again by the Nazis in 1933.¹⁶¹

In order to try and counter these influences, the Social Democrats managed to push through a Law for the Protection of the Republic in 1922; the resulting State Court was intended to remove the trial of right-wing political offenders from an all-too-sympathetic judiciary and place it in the hands of appointees of the Reich President. The judiciary soon managed to neutralize it, and it had little effect on the overall pattern of verdicts.¹⁶² Friedrich Ebert and the Social Democrats, although supposedly committed to opposing the death penalty as a matter of political principle, inserted it into the Law for the Protection of the Republic and gave retrospective approval to summary executions carried out in the civil disorders of the immediate postwar period. In doing so, they made it easier for a future government to introduce similarly draconian laws for the protection of the state, and to confound a central principle of justice - that no punishments should be applied retrospectively to offences which did not carry them at the time they were committed. ¹⁶³ This, too, was a dangerous precedent for the future.

The regular courts had little time for the principles enunciated in the Law for the Protection of the Republic. Judges almost invariably showed leniency towards an accused man if he claimed to have been acting out of patriotic motives, whatever his crime.¹⁶⁴ The Kapp putsch of 1920, for instance, led to the condemnation of only one of the participants in this armed attempt to overthrow the legitimately elected government, and even he was sentenced to no more than a brief period of confinement in a fortress because the judges counted his ‘selfless patriotism’ as a mitigating factor.¹⁶⁵ In 1923 four men won their appeal to the Reich Court, the old-established supreme judicial authority in the land, against a sentence of three months’ imprisonment each for shouting at a meeting of the Young German Order, a right-wing youth group, in Gotha, the words: ‘We don’t need a Jew-republic, boo to the Jew-republic!’ In its judgment the Reich Court declared somewhat unconvincingly that the meaning of these words was unclear:

They could mean the new legal and social order in Germany, in whose establishment the participation of German and foreign Jews was outstanding. They could also mean the excessive power and the excessive influence that a number of Jews that is small in relation to the total population exercises in reality in the view of large sections of the people ... It has not even been explicitly established that the accused shouted abuse at the constitutionally anchored form of state of the Reich, only that they shouted abuse at the present form of state of the Reich. The possibility of a legal error is thereby not excluded.¹⁶⁶

The distinction the Reich Court made between the two kinds of state, and the hint that the Weimar Republic was merely some kind of temporary aberration which was not ‘constitutionally anchored’, demonstrated only too clearly where the judges’ real allegiance lay. Such verdicts could not fail to have an effect. Political and indeed other trials were major events in the Weimar Republic, attended by large numbers of people in the public galleries, reported at length and in parts verbatim in the press, and debated passionately in legislative assemblies, clubs and societies. Verdicts such as these could only give comfort to the far-right opponents of the Republic and help to undermine its legitimacy.

The right-wing and anti-Republican bias of the judiciary was shared by state prosecutors as well. In considering what charges to bring against right-wing offenders, in dealing with pleas, in examining witnesses, even in framing their opening and closing speeches, prosecutors routinely treated nationalist beliefs and intentions as mitigating factors. In these various ways, judges and prosecutors, police, prison governors and warders, legal administrators and law enforcement agents of all kinds undermined the legitimacy of the Republic through their bias in favour of its enemies. Even if they did not deliberately set out to sabotage the new democracy, even if they accepted it for the time being as an unavoidable necessity, the effect of their conduct was to spread the assumption that in some way it did not represent the true essence of the German Reich. Few of them seem to have been convinced democrats or committed to trying to make the Republic work. Where the law and its administrators were against it, what chance did it have?