St. Mary's Journal on Legal Malpractice &
Ethics
7-2020
Complicity in the Perversion of Justice: The Role of Lawyers in
Eroding the Rule of Law in the Third Reich
https://commons.stmarytx.edu/cgi/viewcontent.cgi?article=1051&context=lmej
Cynthia Fountaine
University of North T exas, cynthia.fountaine@untdallas.edu
Abstract. A fundamental tenet of the legal profession is that lawyers and
judges are uniquely responsible—individually and collectively—for protecting
the Rule of Law. This Article considers the failings of the legal profession in
living up to that responsibility during Germany’s Third Reich. The incremental
steps used by the Nazis to gain control of the German legal system—beginning
as early as 1920 when the Nazi Party adopted a party platform that included a
plan for a new legal system—turned the legal system on its head and destroyed
the Rule of Law. By failing to uphold the integrity and independence of the
profession, lawyers and judges permitted and ultimately collaborated in the
subversion of the basic lawyer–client relationship, the abrogation of the lawyer’s
role as advocate, and the elimination of judicial independence. As a result, while
there was an elaborate facade of laws, the fundamental features of the Rule of
Law no longer existed and in their place had grown an arbitrary and chaotic
system leaving people without any protection from a violent, totalitarian
government.
Author. Professor of Law, Southern Illinois University School of Law. The
author thanks Dr. Manfred Dauster, Presiding Judge, Bavarian Supreme State
Court, for his insightful comments on this Article. The author also thanks
Alicia Hill Ruiz and the editors at the St. Mary’s Journal on Legal Malpractice &
Ethics for their excellent editorial work.
2020] Complicity in the Perversion of Justice 201
I. INTRODUCTION
The “Rule of [L]aw is a principle under which all persons, institutions,
and entities are accountable to laws that are: [p]ublicly promulgated[,]
[e]qually enforced[,] [i]ndependently adjudicated[,] [a]nd consistent with
international human rights principles.”4 Furthermore, the Rule of Law
requires “measures to ensure adherence to the principles of supremacy of
the law, equality before the law, accountability to the law, fairness in the
application of the law, separation of powers, participation in
decision-making, legal certainty, avoidance of arbitrariness, and . . . legal
transparency.”5
A fundamental tenant of the legal profession is that lawyers and judges
are uniquely responsible—individually and collectively—for ensuring the
protection of the Rule of Law. As this Article will demonstrate, the legal
profession catastrophically failed to fulfill this responsibility during
Germany’s Third Reich.
This Article will consider the incremental steps used by the Nazis to gain
control of the German legal system and abrogate the Rule of Law in
Germany during the Third Reich. In so doing, this Article will explore the
legal and ethical failings that ultimately resulted in the legal system being
turned on its head. By failing to uphold the integrity and independence of
the profession, lawyers and judges permitted and ultimately collaborated in
the subversion of the basic lawyer–client relationship, the abrogation of the
lawyer’s role as an advocate, and the elimination of judicial independence.
As a result, while there was an elaborate facade of laws, the fundamental
features of the Rule of Law no longer existed, and in their place had grown
an arbitrary and chaotic system designed to carry out Hitler’s evil will and
racist agenda.
On Remembrance Day 2018, a New York Times headline said, “Holocaust
Is Fading From Memory, Survey Finds.”6 The article noted, “[41] percent of
Americans, and 66 percent of millennials, cannot say what Auschwitz was.
And 52 percent of Americans wrongly think Hitler came to power through
force.”7 Moreover, most Americans—including many lawyers and
judges—know very little about the legal system in Nazi Germany and how
it contributed to and facilitated the Third Reich’s rise to power. There is a
general perception that it was a lawless system, that the Rule of Law had
been completely abandoned from the beginning. However, the reality is
that Hitler used the legal system to legitimize his terroristic dictatorship and,
while eventually there was a complete breakdown in the Rule of Law, it did
not happen all at once; it happened over time and with the complicity of the
legal profession. This Article will consider how Hitler effectively perverted
the legal system, at first working within it and later taking complete control
of it.
This Article does not attempt to provide an exhaustive history of the
period or its legal system.8 This Article also does not seek to hold the
United States up as an example of the only way, or even necessarily the right
way, to run a legal system—either now or in the past9—or to criticize
Germany’s legal response over the last seventy-five years. Indeed, Germany
now has many additional protections in place, including making protection
of human dignity a basic human right and ensuring the independence of its
judiciary, which provides as much or more protection of human rights than
any other country today.10
What this Article does seek to do is consider the role of German lawyers
and judges in tolerating, facilitating, encouraging, and legitimizing the Nazi
agenda. This agenda resulted in the state-sponsored torture and murder of
over 11 million human beings11—over 6 million of whom were Jews—and
sparked a World War that resulted in the deaths of another 60 million
people, including 20 million soldiers and 40 million civilians, around the
world12 between 1933 and 1945. This consideration of where the German
legal profession went wrong in the 1930s and 1940s will provide lessons for
how we can strengthen modern legal systems and emphasize the legal
profession’s responsibility—including the individual responsibility of each
member of the legal profession—to maintain a just legal system.
A common misconception about the role of German judges and lawyers
in the Third Reich is that the lawyers and judges were all Nazis who followed
Hitler blindly. Although there were definitely some Nazi judges and
lawyers—and some of them were directly responsible for the failings of the
German legal system during the Third Reich—the vast majority of lawyers
and judges were not Nazis, but were ordinary lawyers and judges, part of the
educated cultural elite of Germany. They had personal and professional
motivations for what they did and did not do, and those motivations may
not have had anything to do with loyalty to Hitler and the Nazis.
Nevertheless, these lawyers and judges also failed Germany entirely; they
fueled Hitler’s agenda of genocide and hatred by giving it legitimacy and
authority.
As a starting point, it is important to understand that Hitler despised
lawyers and promised “[t]o make every German realize that it is a disgrace
to be a lawyer.”13 He once said, “[e]very lawyer must be regarded as a man
deficient by nature or else deformed by usage.”14 He also said:
The lawyer’s profession is essentially unclean, for the lawyer is entitled to lie
to the court . . . The lawyer looks after the underworld with as much love as
owners of shoots taking care of their game during the closed season. There
will always be some lawyer who will jiggle with the facts until the moment
comes when he will find extenuating circumstances . . . .15
His goal was not only to purge the legal profession of those he thought
undesirable and coordinate the legal system to promote his agenda, but to
control the legal system to a complete degree so that there was no real
distinction between himself and the law. The process by which Hitler
hijacked the legal system to achieve this goal was an incremental one. It
happened as a result of many steps that led to the breakdown of the ability
of the legal system to fulfill its fundamental mission to protect the people
from governmental tyranny.
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