What can the Nazi legal persecution of the Jews tell us about the morality of the law?
The diaries of Victor Klemperer, a professor of Jewish descent working at the Technical University of Dresden, are a chronicle of daily life under the Nazis. They chart the shift from a kind of normality – albeit lived under the lengthening shadow of a racist dictatorship – to terror and lawlessness.
Having served in the German army in the First World War and being married to an 'Aryan', Klemperer was initially partly protected from the Nazi legal program against the Jews. However, as these measures became increasingly oppressive, Klemperer became subject to the same unpredictable treatment experienced by all those not deemed to be of 'German blood'.
For Kristen Rundle, a lawyer with a specialism in legal philosophy, Klemperer's personal record provides important insights into how law affects those who are subject to it and what it means to have a legal system.
She explains: 'Studies of the legal persecution of the Jews mainly focus on the "top end" – what was enacted, how law was used as an instrument of persecution, how courts made decisions and so on.
'Being persecuted by the content of the law is one thing, but I am also interested in what it meant to be persecuted through law, and how that was experienced.'
According to Rundle such personal accounts help cast light on the legal philosophical debate concerning the morality of law and its connection to the quality of orderliness that we associate with the 'rule of law'. Is law inherently moral or does the Nazi legislative programme against the Jews provide tragic proof that law has no intrinsic moral worth?
Klemperer's diaries suggest that this is indeed a complex question. Law initially seems to have provided him with some degree of security. On April 10 1933 he expresses relief on the enactment of the Law for the Restoration of the Professional Civil Service, which compulsorily retired many Jews from their public sector positions:
'The awful feeling of "Thank God, I'm alive." The new Civil Service "law" leaves me, as a front-line veteran in my post – at least for the time being…But all around rabble-rousing, misery, fear and trembling.'
While Klemperer's use of inverted commas around the term 'law' is subversive, his diary nonetheless suggests that – despite the overtly discriminatory content of the laws – he anticipated that their application to various aspects of his life would bring a degree of stability.
This, Rundle says, is a trend that runs through many Jewish testimonies of the period. Those subject to the laws expected that so long as the Nazis used law as their primary means of persecution, their actions were limited to an extent by the defining features of legality – publicity, a degree of constancy, consistency between the law as announced and its administration, and so on.
This all changed after the Kristallnacht pogrom in 1938. With the SS assuming jurisdiction over many aspects of Jewish life, Jews increasingly did not expect to be treated in a predictable way. Law was 'running out'.
For Klemperer personally the greatest assault was the decree that required all Jews to wear the Star of David in public. In September 1941 he writes:
'The Jewish armband, come true as Star of David, comes into force on the nineteenth. At the same time a prohibition on leaving the environs of the city…I myself feel shattered, cannot compose myself…I only want to leave the house for a few minutes when it's dark.'
His palpable loss of agency is key for Rundle. She explains: 'Legal systems don't work unless they retain a notion of the legal subject as an agent – a person of capacity. So the question is, if we want to oppress or eliminate this capacity for agency, is law the wrong tool to use? '
Ironically while governing the Jews through legal forms the Nazis relied on and respected the same capacities that their racial-biological programme sought to dehumanise. This ceased as law gave way to SS terror and the totalitarian framework of the concentration camps.
Ultimately it was not law that saved Victor Klemperer but rather the Allied bombing of Dresden. Fearing he was about to be deported to the concentration camps he used the chaos of the bombings to escape into American controlled territory. His diary, detailing his experiences, I Shall Bear Witness was published in 1995.
Dr Rundle has recently started working with the Wiener Library in London to analyse more personal accounts of Jewish experiences of the law in Nazi Germany. She explains why it is important to define whether the Nazi terror happened under a system of law or not:
'The Nazi period has been constructed as something aberrant and extreme. This has helped protect us from some of its important lessons, including what law looks like when it seeks to oppress
'There are a lot of things in life that we understand best through pathology. We can't say what justice is or define what love is, but we can usually identify, even if only intuitively, when they are absent. I draw upon the Nazi debasement of legality and the Nazi legal attempt to persecute the Jews to gain a clearer sense of how we understand the presence and absence of law.'
For full details of Dr Kristen Rundle's research and publications see her profile on the Department of Law's website: Kristen Rundle