"Non-Germans" under the Third Reich: The Nazi Judicial and Administrative System in Germany and Occupied Eastern Europe, with Special Regard to Occupied Poland, 1939-1945 (review)

Diemut Majer's monumental German-language study of the legal treatment of those whom the Nazis labeled Fremdvölkische (literally "foreign people"—the "Non-Germans" of the book's title) has finally been translated into English. The study, first published in Germany in 1981, brought a new understanding of the Nazi persecution, through legal and pseudo-legal means, of Jews (whether German citizens or otherwise), Gypsies, Slavs, and all others whom the Nazis perceived as different or racially inferior. A second German edition came out in 1993, but it was another ten years before the book became available in English. The result is a long book, with a long title and a formidable price tag. All of these factors may dissuade scholars and acquisitions librarians from purchasing it. That would be a mistake. This volume provides a valuable new addition in the English language to our understanding of how a sophisticated and advanced legal system, considered by many to be at the pinnacle of legal science in the first half of the twentieth century, could be transformed into an instrument of barbarism.

This is not the first book about Nazi law, nor the first English-language translation of a work on this subject written by a German legal scholar. Until now, the best such study had been Ingo Müller's Hitler's Justice: The Courts of the Third Reich.¹ Majer, a professor of public law, constitutional legal history, and comparative law at the University of Bern and a lecturer in European law at the University of Karlsruhe, goes far beyond Müller. While Müller's work focuses almost exclusively on the German courts during the National Socialist era, Majer examines the entire legal machinery of Germany during the Third Reich, including the police and the SS, and how they all became mobilized for the Nazi mission of subjugation and even annihilation of those whom the Nazis classified as fremdvölkische.

A basic concept in the book is the principle of "special law," meaning a separate body of rules for the Fremdvölkische. These rules can be characterized by four "focal points":

1. 1. "Technical efficiency," (p. 531) meaning a rapid indoctrination of German judicial authorities into the Nazi way of thinking and, thereafter, a smooth application of Nazi terror mechanisms into the existing German judicial and administrative structure;

2. 2. "Limitless area of personal and substantive applicability," (p. 531) meaning that "in principle there were no legal restrictions, either substantively or in regard to persons, upon the idea of racial hatred. . . . [Eventually,] the principle of special law became progressively detached from its racist origins, becoming instead the general legal and administrative principle of National Socialism" (pp. 532–33);

3. 3. "Unlimited judicial authority and the escalation of special law from west to east" (p. 531); and

4. 4. "Distribution of jurisdiction and the struggle for authority between the regular service and the exceptional powers of the Third Reich," i.e. the SS (p. 531).

The book's most important contribution is the meticulous examination of the application of "special law" to Polish Jews and Christian Poles in occupied Poland. Here, the concept of law lost all meaning. As Majer explains, "the arbitrary measures of the SS and the police . . . had nothing to do with 'criminal prosecution in the sense meant by the police at the time.'" Rather, these were acts of "'unbridled terror,' characterized by innumerable, 'blind programs of action' (such as the mass seizures and deportations), but above all by the arbitrary justice of the SS and the police" (p. 450). All that the "courtlike" institutions of the police "had in common with the concept of...