Legal Sabotage: Ernst Fraenkel in Hitler's Germany

Legal Sabotage by Douglas Morris

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Some of us are made of sterner stuff than most of us. Being a Socialist Jewish lawyer, and opponent of the Nazis, in Nazi Germany, Ernst Fraenkel, was made of the sternest stuff one could imagine.

Fraenkel was Jewish but had the blue eyes and blonde hair of a proper Aryan. He had also served in the German army during World War I, which made him the beneficiary of some privileges not available to younger German Jews. When the Nazis threw Jews out of the legal profession, those who had military service (or who had joined the profession prior to prior to August 1, 1914:

“Jews could continue as judges and lawyers if they fell under one of three exceptions: (1) Jewish judges who had entered the civil service or Jewish lawyers who had been admitted to the bar before August 1, 1914; (2) Jewish judges or lawyers who had fought on the front in World War I; or (3) Jewish judges or lawyers who had a father or son who had fallen in the war.20 Fraenkel could continue practicing law in Nazi Germany because he benefited from the exception for veterans.”

Morris, Douglas. Legal Sabotage (Cambridge Studies in Constitutional Law) (p. 16). Cambridge University Press. Kindle Edition.

Although this state of affairs afforded some Jewish lawyers a period of time when they could continue their profession, the Nazis incrementally restricted the scope of permitted Jewish activity. By 1937, Fraenkel was barred from all court activity. He made a scant living as a consultant. However, this gave him time to write his masterwork, “The Dual State.”

Fraenkel specialized in labor law which put him in touch with the Social Democrat socialist element of German politics. Fraenkel's commitment to the situation of the working class was not a pose. After the Reichstag Fire, Fraenkel chose to stay in Germany to represent those who would be oppressed by the Nazis. Eventually, in 1938, he did choose to leave Germany. By that time, the Nazis had killed, tortured, imprisoned, or driven to commit suicide a good number of leftwing lawyers. Fraenkel managed to survive by carefully playing his role as a legal advocate. So long as he was serving as an attorney, he did not make Nazi hostility a personal matter, as had Hans Litten, who had cross-examined Hitler during one murder trial.

Nonetheless, Fraenkel's role as an attorney for socialists and the working class kept him on the edge of Nazi tolerance. In addition, Fraenkel engaged in more direct forms of resistance, such as writing a handful of essays in opposition to Nazi policies and practices. One of those essays involved the question of why anyone should engage in “illegal work.”

That is some good advice, even here and now, when we see an unhealthy Gleichschaltung between social media and the government.

Fraenkel allowed himself to participate in a plot to publish opposition pamphlets, which was unraveled by the Gestapo. Fraenkel was warned and managed to flee Germany.

The kernel of the present book is the relationship of Fraenkel's experience as a resisting German lawyer to his masterwork. The author provides the reader with the facts and “qualia” of the experience of being oppressed and persecuted as a lawyer. I found this aspect of the book sparked my empathy as a practicing lawyer myself. Morris starts his book with the sad death of Max Alsberg, the greatest criminal lawyer in Berlin, whose practice was destroyed when he was evicted from the legal profession as a Jew, whose partner dissolved their practice because he was a Jew, and who committed suicide out of despair on September 13, 1933, at the age of 56. (Alsberg was too old to have served in World War I and get the benefit of the exemption that Fraenkel received.)

Morris spends a lot of time on the background and experience of other leftwing German lawyers to contrast with Fraenkel. Any reasonable reader has to admire the courage and fortitude of these people. Very few were able to make a successful escape from Germany before the net closed as Fraenkel had. One such victim was Hans Litten.

Litten was arrested and imprisoned when he was 29. He was never free again.

This is the background for “The Dual State” (“TDS”). In TDS, Fraenkel described Nazi Germany as composed of two states: one state consisted of the Nazi party and its institutions who were given unfettered room of movement. This was the “Prerogative State”(“PS”). The other state was the older order of law and legalism composed of the judiciary and other traditional government institutions. This was the “Normative State” (“NS”). The NS was used to assure the average German that their contract and property rights would be respected so that the economy could function normally.

However, the NS was not immunized the PS. The PS could at any time step in and obviate the decisions of the NS. Further, the PS warped and twisted the NS into accepting and instantiating the perversions of the PS. For example, the NS ruled that Religious Youth Organizations could be eliminated under a law that gave the German state the legal right to eliminate the Communist Party. The NS reasoned that anything that distracted the Nazi state - such as Catholic youth organizations - necessarily benefitted the Communist Party and, voila!, applying the law to an area clearly outside its intended scope was legal.

In recent days, as an American, I have found Fraenkel's theory to be useful in thinking about the modern distortions of constitutional law. Thus, we see that the partisans of one party can violate the law - such as fabricating evidence for the FISA court - and suffer no consequences (the PS, in truth), whereas a law that was never intended to furnish a basis for criminal prosecution (the Presidential Archives Act) is distorted as the grounds for a search warrant of the property of the current president's most likely political opponent. It seems that we are seeing something akin to the division between the NS and the PS.

If you have read TDS, this book provides excellent insights.For example, Morris has an extensive discussion of the role of Natural Law in Fraenkel's thought. As a socialist influenced by Marxism, Fraenkel did not have much use for Natural Law before the TDS. However, positive law placed the authority to make the law in the State, which did not provide a great deal of room to oppose the Nazi state. Rational Natural Law promised to give anti-Nazis a rational basis for opposing the Nazis and a way to unify a broader anti-Nazi coalition.

This is an excellent book. It is well-researched. The writing is exemplary. The scope of interest may be limited, although it may have some appeal to those with an interest in the early Nazi period.