The Nazi regime is often viewed as being chaotic, confused and incoherent. There were rivalries between various individuals: the dislike between Goering and Goebbels is well known, and during the war Speer faced opposition from Bormann. There was much “empire-building” within the Nazi regime. Himmler sought to establish his “SS empire” while individual Gauleiters busied themselves building up their personal fiefdoms, to the point of even hoarding essential supplies during the war years.
However, we should be careful not to make too much of such things. Most democratic governments also face personality clashes, factional intrigues and they frequently rely on individuals and bodies outside of the ruling political party. Indeed, many business firms, educational establishments and other institutions thrive on a kind of “managerial Darwinism” to get the best out of their organisations.
In his book, “The Third Reich: A New History” (Pan, London, 2003), Michael Burleigh argues the following:
…In other words what has been increasingly elevated into the explanatory master-key of Nazi rule, namely the mutually radicalising effects of competing agencies, may be both insufficient, and less remarkable, as an explanation for the single-mindedness with which the Nazis went about realising their ideological goals. If what is said to be uniquely characteristic of Nazism also typifies many other modern governments and organisations, then this alone can hardly explain a regime of rare destructiveness. The massive documentary evidence of endless squabbles within the regime proves little, since consensus, like happiness in love, requires no written expression… (pp 156-157)
Burleigh argues instead that the key element in the make-up of the Nazi regime, the factor that ensured totalitarian rule and which made possible the regime’s single-minded pursuit of its racist, ideological agenda, was the “supercession of the rule of law by arbitrary police terror.” Burleigh’s key point is that:
…It was not a side-issue, which once unaccountably preoccupied an older generation of historians and is now best left to legal historians, but the most important departure from civilised values engineered by the Nazi government… (p 157)
Within the Nazi regime, there was an utter disdain for the rule of law. Murderers of Weimar political figures were amnestied while the killer of Walter Rathenau, Germany’s (Jewish) Foreign Minister, murdered in 1922, was commemorated to the level of a state occasion. The “Law Concerning Measures for the Defence of the State” (3 July, 1934) legalised the murders that took place during the 30 June 1934, “The Night of the Long Knives”. Hitler justified the killings and the law by arguing:
…in that hour, I was responsible for the fate of the German nation and was thus the Supreme Judge of the German Volk…
Law was a means to an end, not a value in itself. Courts functioned openly to advertise the regime’s values but they were increasingly marginalised by the Gestapo and the SS. Judges were encouraged to be flexible when making judgments. Judges were expected to “abandon impartial objectivity”, to “grasp the essence of a case”, to approach each case with a “healthy prejudice” in line with “the main principles of the Fuhrer’s government”.
Lawyers and state prosecutors were expected to practise “unanimity of aim”. Defence lawyers rarely challenged the facts of a case. They were expected to only uphold their client’s interests, provided those of the national community were not harmed. This became the essence of law in Nazi Germany. Its purpose was to “protect and serve the collective interests of the national community rather than to defend the rights of the individual”. The National Community was defined by race. Crime was seen as an act of betrayal of the National Community and thus all crime was potentially political. 
Nazi legal creativity knew few limits. In November 1933, the “Law against Dangerous Habitual Criminals and Measures for their Detention and Improvement” combined the right of the state to hand down punishments for a particular crime with the right of the national community to be protected from potential offenders. Judges could now objectively decide that a sex offender should be sterilised, or that an offender who had served his or her time should be subjected to additional detention. Racial issues were always at the root of any Nazi policy making. Burleigh sees this is the practice of Nazi justice. He concludes on this point:
…Law and policing became branches of epidemiology, a means of excluding racial aliens or redefining crime as illness, which was frequently regarded as untreatable… (pp 166-7)
A whole range of new courts were introduced by the Nazis. There were Hereditary Courts, Health Courts, Extraordinary Courts, the People’s Court. By 1938, there were over seventy Special Courts. There was a court for Jehovah’s Witnesses and special courts for clergy. As the clergy bowed out of making political comments, they were now routinely accused of crimes ranging from currency violations to sexual offences. There were show trials of clergy held in Koblenz and Munich.
One of key foundations of a democracy is an independent judiciary, above politics and free from political control and influence. Equally, one of the main elements of a totalitarian regime is the total subjection of the judiciary and legal process to the will of the leader and the ideological demands of the party.
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