In Nazi Germany, integration into the community of the Volk, or exclusion and persecution, were determined by the regime's categories. As legal historian Michael Stolleis has noted, this new National Socialist terminology “quick[ly] penetrat[ed] … into the old conceptual world” of German jurisprudence and the country's court system.Footnote ¹ In line with the prescriptions of the political leadership of the Hitler state, bureaucrats of the Justice and Interior Ministries in Berlin drafted novel legislation that, once issued as new laws, judges, state attorneys, and lawyers readily interpreted and put into practice. With the promulgation of the Nuremberg Laws in September 1935, the main racial designations evolved around a tripartite terminology of “full Jews [Volljuden],” “Jewish mixed breeds [Mischlinge],” and “persons of German and kindred blood.”Footnote ² In accordance with paragraph 5 of the first supplementary decree to the Reich Citizenship Law of November 1935, state authorities classified any descendant “from at least three grandparents who [we]re racially full Jews” as Jewish. Paragraph 3 defined Mischlinge of the first degree, introduced as a novel legal category, as Jewish Mischlinge with two grandparents “who [we]re racially full Jews.” The supplementary decrees did not explicitly delineate the term “person of German blood”, but the main commentary of the Nuremberg Laws loosely tied this term to the “German Volk” as a community comprised of six basic races, including the Nordic and East Baltic ones.Footnote ³

The population's racial categorization that German authorities put into place on the basis of these terms had an immediate and potentially devastating impact. Reich citizenship, school and university attendance, marriage, careers in the civil service, and, eventually, most other professions, Party membership, military service, and even participation in most private clubs was tied to proof of one's status as a person of German blood. In the early years of the regime, there were exemptions for newly Nazi-defined Mischlinge and even for some Jews, but these exemptions often involved lengthy administrative processes and remained always in danger of sudden reversals.Footnote ⁴ Consequently, the categorization processes and their legal and extralegal components were of crucial significance to Hitler Germany's population, whose members became increasingly obsessed with this terminology and imagery of Germanness and Jewishness. A growing number of Germans whom the regime classified or threatened to reclassify as Jewish or partially Jewish stepped up their often desperate attempts to obtain classifications as persons of German blood. These attempts included ways to enlist the country's court system by exploring the option of paternity suits to question the actual or Nazi-imagined descent of these men and women from members of the Jewish religious community.

How, then, did Nazi state administrators, scientists, and judges determine Germans' imagined racial descent and ascribe official categories that identified tens of thousands as enemies of the Volk, ultimately prefiguring and accompanying their deportation and murder during the war? What was the role of paternity suits and the country's superior courts (Landgerichte) in these processes and in the strategies of Germans of Jewish ancestry to at least temporarily escape ostracism and persecution? And, finally, what can new discourse analytical readings of Nazi legal practices add to our understanding of the intersections of law, race, and dictatorial power in the Third Reich?

This article offers close readings of paternity suits in the Munich Superior Courts after the promulgation of the April 1938 “Reich Law for the Alteration and Amendment of Regulations Pertaining to Family Law.” Although these cases had traditionally centered on issues of child support and intersected with poverty law, in the racial state of Nazi Germany, they became increasingly embroiled in challenges to children's legitimacy and racial categorization. The April 1938 law provided prosecuting attorneys at superior courts with new mechanisms to challenge the parentage and determine the racial descent of a legitimate child of suspected Jewish descent, even if the child's legal father of “German blood” was unwilling or unable to file charges. At the same time, this new law also offered Germans of Jewish or partial Jewish ancestry novel approaches to question the identity of their documented Jewish father, paternal grandparents, and, therefore, these litigants' racial classification.Footnote ⁵ As Gustav Klein-Doppler, a lawyer for two plaintiffs with legally-Jewish parents put it in the summer of 1941, his clients' paternity case was a “question of survival.” At this time, Adolf Eichmann and his staff laid further foundations for a system of deportation trains that would transport Germans of Jewish ancestry to the ghettos and killing centers in occupied Eastern Europe during the coming months and years.Footnote ⁶

Some scholars have questioned the very notion of “law” under the increasingly brutal Nazi dictatorship. Is it feasible to speak of law under tyrannical reign? There can be no doubt that the Nazi regime affected, albeit in often different forms, all branches of the court system and fields of law, including family law.Footnote ⁷ The ministerial bureaucracy and court system gradually embraced National Socialist völkisch doctrines and concepts of völkisch inequality. The elevation of the “Führer's will” to law also undermined the established legal norms.Footnote ⁸ Yet, despite the ongoing dismantling of the rule of law as conceived and practiced in Imperial and Weimar Germany, the regime and its representatives never acted with complete consistency. Remnants of law and previous legal practices remained in effect, particularly at local and regional levels that provided even those Germans whom the regime defined as “Jewish” or “partially Jewish” with opportunities to act and, at least temporarily, gain a much-needed reprieve from persecution.

This greater complexity and inconsistency was apparent at the level of the Munich Superior Courts and their handling of paternity suits. In contrast to their Anglo-American counterparts, whom John Wertheimer's article discusses in this issue, these courts mainly “applied” the rules and regulations of law codes such as the Civil Code (Bürgerliches Gesetzbuch) that traditionally dominated the German legal system. Despite the absence of juries in civil trials in German superior courts, the process was considerably less judge-made or driven by common law.Footnote ⁹ This judicial focus on the application of law codes and statutory law in connection with the dominant doctrine of legal positivism misled early postwar scholars to portray German judges as “defenseless” against the Nazi regime's introduction of new racial law and its increasing control of the judiciary. Judges simply saw themselves bound to the law and legal code, scholars like Hermann Weinkauff argued, and did not question it.Footnote ¹⁰

This application of codes and laws on paternity and racial belonging, however, was anything but a linear and uncontested process. Indeed the legal provisions never matched the complex “realities” of descent and parentage. The site of the Munich Superior Courts offers an important prism into these complexities. It sheds light on the ways in which judges, state attorneys, and lawyers grappled with the legal provisions and the regime's ideological prescriptions. In this process, they repeatedly modified legal discourses and the meanings of racialized categories. Consequently, this article supports and further illustrates more recent interpretations by legal historians that have shown judges as much more active and willing to remake existing law in clear violation of legal positivism.Footnote ¹¹ This remaking also involved court-appointed scientists such as racial anthropologists and local Party activists. Together these officials wrestled with how to put the regime's abstract and contradictory doctrines into practice and continually struggled over racialized categories with the German defendants or litigants of real or imagined Jewish descent. These struggles, I argue, played a crucial role in shaping the categories' legal meanings, applications, and ultimately violent repercussions.

Research on the Nazi period has long neglected paternity suits. In recent years, works by scholars such as Beate Meyer and Jürgen Matthäus have analyzed the striking rise in paternity suits after 1938 in the cities of Hamburg and Berlin respectively.Footnote ¹² These historians have documented the significant success rate of cases at a time when other approaches to reclassification such as the exemption process on the basis of paragraph 7 of the first supplementary decree to the 1935 Reich Citizenship Law had been practically closed.Footnote ¹³ Regardless, this scholarship has yet to fully capture the significance of language, its productive role in creating perceived “realities” of race, and the complexities and paradoxes inherent in the negotiations of selfhood and racial categorizations. In response to the linguistic turns in the social sciences and humanities, cultural historians have long pondered the functions of language and drawn on various types of discourse analysis. In the field of European legal history, early modernists have produced a growing body of works informed by these approaches, whereas specialists in Weimar and Nazi German legal studies have rarely explored the potentials of discourse analysis.Footnote ¹⁴

This article introduces discourse analytical readings to the study of Nazi-era paternity suits. Unlike traditional legal scholarship, these readings do not apply legal norms to facts that are seen to have an existence independent of legal discourses. Instead, these approaches aim at disguising how legal discourses constructed concepts, subjectivities, and their social worlds. In this sense, discourses have productive, not only repressive, qualities. Legal texts of the Third Reich helped, for example, to produce the subject of the Jewish Mischling who did not have a previous, independent, or factual existence.Footnote ¹⁵

This process of constructing concepts and “truth” was inherently interactive. Legal discourses pertaining to paternity suits, for example, continually interacted with scientific discourses that emanated from anthropological institutes and constructions of race perpetuated by Nazi state and Party agencies. Moreover, the production of knowledge was the ongoing outcome of social processes that evolved around the verbal communication among judges, state attorneys, lawyers, plaintiffs, and defendants. As Michael Stolleis has stated, the existing positive law in the Third Reich was developed further through thousands of court decisions. Judges interpreted the language of the rival parties and applied the case to existing codes, but not without integrating some of the Parties' parlance and often remaking legal constructs and statements. Other actors in the court tried to influence this process. My article draws on Philipp Sarasin's insightful concepts of discursive “interventions” and “ruptures” to detail how defendants and their lawyers cited, sought to disturb the flow of legal discourses, and created spaces for reinscriptions.Footnote ¹⁶ Nazi-era legal discourses were not “thing-like” with an unchangeable core. They rather represented “systems of constraints,” delineating the limits of what could be said and written and structuring the narratives of litigants and court officials alike. As these discourses were embedded in the time-and-place-specific power relations of the Nazi racial state, mixed-race plaintiffs were only rarely able to break with their—by the standards of the regime—illegitimate location of speaking. Even if judges and prosecuting attorneys claimed locations of legitimacy, they, too, were confined by the limits of official racial discourses that they, in turn, strengthened and reaffirmed by integrating these into their legal work. These legal discourses and rules underpinned the perceived “truth” about race and the production and imposition of racial subjectivities that had far-reaching and often deadly consequences.Footnote ¹⁷

In the following discussion, this article, first, introduces the Munich Superior Courts and the Upper Bavarian city's legal landscape during the time of the Hitler state. Second, it presents the important legal changes brought about by the 1938 alteration of the country's family law and regulations for superior courts to determine paternity and descent. Third, the article scrutinizes specific cases from the Munich Superior Courts. Finally, I will reflect on the meaning and repercussions of these cases and the use of discourse analysis in studying Nazi legal practices.

Munich and its Court and Legal Landscape during the Third Reich

As Rüdiger Fleiter has convincingly argued, the cities and towns of Nazi Germany played a crucial role in putting into practice Nazi policies at the local level, integrating the population into the Third Reich, and implementing the persecution of the regime's opponents. In addition to the communal rule of coordinated town halls, the local and regional courts also aided the process of dictatorship building and applying Nazi ideology. Among Hitler Germany's municipalities, Munich, the capital of the south German state of Bavaria, stood out. In 1919, it had been the site of the foundation of the Nazi Party. Four years later, Adolf Hitler had led a small Nazi movement in a dilettantish putsch attempt in the city.Footnote ¹⁸ Because of Munich's prominent role in the Party's history, Hitler had given the honorary title of “capital of the [Nazi] movement” to the city in August 1935. Moreover, the city functioned as the Party's district capital (Gauhauptstadt) for Upper Bavaria and remained the seat of the national Nazi Party. The Party headquarters, the “Brown House” (Braunes Haus), was located close to Munich's Palace of Justice.Footnote ¹⁹

Within weeks after Hitler's appointment as German chancellor in January 1933, Nazi Party officials had “coordinated” (gleichgeschaltet) Munich's city government and installed Karl Fiehler, one of the 1923 putschists, as mayor. Local Nazi leaders also swiftly directed their attention to Munich's legal apparatus.Footnote ²⁰ Since the 1877/79 reform of the court constitutions in the recently-founded German Empire, there were four superior courts in the administrative district (Regierungsbezirk) of Upper Bavaria. In 1939, the district was home to close to 2,000,000 citizens, more than ninety percent of whom were Catholics. Two of these courts, Landgericht Munich I and Landgericht Munich II, had their seat in the city. The former heard cases from Munich, a city of more than 800,000 inhabitants, and appeals from its two district courts (Amtsgerichte); the latter had jurisdiction over large parts of Upper Bavaria and dealt with appeals cases from these areas' district courts.Footnote ²¹ The Landgerichte, therefore, tried more significant cases in the first and second instance. These cases extended to most matters pertaining to civil legal disputes and criminal cases. From the two Landgerichte, appeals went to the also Munich-based circuit or appeals court (Oberlandesgericht) and, finally, to the Bavarian Supreme Court (Oberstes Landesgericht) and the Imperial Court (Reichsgericht) in Leipzig.Footnote ²²

By April 1935, the new rulers had dissolved both the Bavarian Oberste Landesgericht and the state's Justice Ministry in Munich. The Law for the Reconstruction of the Reich of January 30, 1934 had transferred the sovereign rights of the German states to the Reich and turned the administration of justice into a Reich matter. Despite this increasing centralization, local initiatives continued to shape the functioning of Munich's courts. In early 1933, local Nazis had removed judges and lawyers who were of Jewish ancestry or leftist political affiliation. In cooperation with Justice Ministry officials, the Munich Nazi Party directly controlled new nominations to the city's courts and appointed several local “Old Fighters,” that is, Party activists, whose membership began prior to 1933, to the bench.Footnote ²³

Still, there was no full-scale replacement of Munich's court personnel. In fact, the new authorities took over the staff and existing laws “en bloc.” In 1933, the fifty-six-year old Walter von Poeppinghausen, who later presided over many paternity cases, simply continued in his position. He had joined the superior court Munich II as a judge in May 1930. Like many opportunists, the experienced judge and war veteran became a Party member in May 1933. In subsequent years, local Party and court officials repeatedly attacked Poeppinghausen, for example, for his use of Bible quotes and alleged criticism of the Secret State Police (Gestapo), one of the regime's key instruments of terror whose members operated beyond any judicial checks.Footnote ²⁴ Even if some Munich judges did not readily embrace the regime's ideological prescriptions, other jurists, especially younger officials, exceeded the expectations of Party leaders. The twenty-seven-year old Ludwig Leiss joined the superior court Munich I in late 1936. Within two years, he rose to the rank of prosecuting attorney. He joined the Nazi Party in May 1935 long before Party membership became a requirement for the promotions of court officials. Leiss was soon active in the regional Nazi Party courts. In 1942, he also rose to the position of section head in the Office for Racial Policy (Rassenpolitisches Amt) of the Munich district leadership. In the same year, he petitioned his Munich court superiors to allow him to pursue a full-time Party career, preferably in the General Government, the main site of the regime's genocide.Footnote ²⁵ These dynamics and the heterogeneous composition of the judicial personnel also affected Landgericht Munich I and II's dealing with paternity cases. As of 1938, the court took on these cases in growing numbers, as the Reichsgericht had identified the determination of paternity in non-proprietary matters as part of German superior courts' jurisdiction.Footnote ²⁶

Nazi Law and the late 1930s Modification of Paternity Suits

Whereas the Nazi regime had taken over the existing civil and criminal law at its outset, its representatives soon began to amend many of these laws and introduce new legislation, including special laws steeped in Nazi ideology. Legal initiatives of the Nazi leadership, Party jurists, and officials in the Reich Justice Ministry particularly affected marriage and family law for its perceived significance for the Volksgemeinschaft, its racial “purity” and survival.Footnote ²⁷ After the promulgation of key legislation such as the Law for the Protection of German Blood and Honor, one of the 1935 Nuremberg Laws that prohibited marriages and sexual relations between Germans and Jews, Nazi officials turned to additional modifications of family law that were much smaller in scope, but no less important in their impact on the lives of tens of thousands of Germans with or without Jewish ancestors. Questions pertaining to children's legitimacy and processes of challenging this status were prominent in the modification debates during the second half of the 1930s that culminated in the April 1938 “Reich Law for the Alteration and Amendment of Regulations Pertaining to Family Law.”Footnote ²⁸

Prior to 1933, family law and the German Civil Code had defined categories of descent on the basis of notions of paternity and matrimonial relations. If a child's mother was married, the law automatically construed her husband as the child's legal father. According to the legal provisions, it was irrelevant whether or not the couple had had sexual relations during the legal “period of conception” (Empfängniszeit). The same was the case for children born to divorced or widowed mothers, if the divorce and death respectively took place within 300 days prior to the birth. Continuing previous patriarchal prerogatives and the de facto legal inequality of women, only a husband had the right to question the descent of a child his wife had given birth to. He had to file a suit within a year upon first learning about the child's birth. A third party, including the child, could only bring a claim if the husband had already questioned the child's legitimacy, but had died before the court was able to conclude the case.Footnote ²⁹

The determination of the father of a child born out of wedlock was subject to yet another set of legal provisions. In terms of pre-1933 family law, this child was illegitimate and legally bound to the mother. The begetter could recognize his child in an official statement to a local authority such as a registrar. The parents had the option, furthermore, of legitimating their child by subsequent marriage. According to paragraph 1717 of the Civil Code, the father of an illegitimate child was the man who had had sexual relations with the mother during the period of conception, that is, 180 to 302 days before the birth. Yet, many biological fathers were not eager to legitimate a child born out of wedlock. Family law allowed for ways to sue an alleged begetter. The permissibility of a lawsuit by the child against the supposed father in order to obtain a “declaration of parentage” (Vaterschaftsfeststellung) from the courts remained highly debated in legal circles. In its October 1937 ruling, the Reichsgericht, the highest appellate court in the country, allowed superior courts to hear cases that determined the parentage of an illegitimate child. These cases did not involve prosecuting attorneys and left the production of evidence with the plaintiff and defendants according to paragraph 256 of the Code of Civil Procedure (Zivilprozessordnung, ZPO). The child's mother was usually the main witness. Regardless, superior courts did not have the right to force the mother to disclose the father's identity. More importantly, the alleged father, evoking the aforementioned paragraph, could bring the lawsuit to an end by providing evidence that the child's mother had had sex with other men during the period of conception.Footnote ³⁰

During the German Empire and Weimar Republic, paternity suits were predominantly rooted in struggles over child support and, to a lesser extent, inheritance. Paragraph 1708 of the German Civil Code stipulated that the father of an illegitimate child was obligated to pay for the necessaries of life and the education of his child. In light of the swift introduction of racial legislation by the new Hitler-led government after January 1933, an increasing number of bureaucrats in the Reich Justice Ministry, court officials, and Party activists had different concerns. They regarded these legal provisions to determine parentage as too narrow and outright damaging to the well-being of the Volksgemeinschaft. Franz Maßfeller of the Reich Justice Ministry's Civil Law Department reasoned that a mother was always eager to make her child's future as easy as possible. In some cases, he continued, mothers were even willing to claim a man who was not “hereditarily healthy” or not of “German blood” as the father as long as he was wealthy. The ministry's April 1938 “Reich Law for the Alteration and Amendment of Regulations Pertaining to Family Law” addressed these perceived weaknesses of the existing law.Footnote ³¹

This new legislation's core provision added paragraph 1595 a to the Civil Code that allowed state attorneys to initiate a lawsuit over the offspring's descent at a superior court, if the mother's husband had not done so within a year, resided at an unknown location, or was deceased. The attorney could do so, the law stated, if this step was “in the interest of the Volk or in the interest of the child.”Footnote ³² Drawing on arguments steeped in racial politics and law, Ernst Ludwig Rexroth, the co-author of the law at the Reich Justice Ministry's Department IV, stressed in his 1938 commentary that this interest “always” existed, “if a child was born by an Aryan mother into a marriage of mixed race and the begetter was of Aryan descent.” The same was the case, he continued, if a “child was born to … a married Aryan couple,” but the actual biological father was “a Jew.” Although the modified Civil Code still provided means to clarify family status; its altered main purpose was to “reveal the blood-based descent of the child.”Footnote ³³

The April 1938 law also elevated the specific procedure of “genealogical and racial examinations” to the status of “legal evidence.”Footnote ³⁴ In the course of upcoming paternity suits, superior courts could now force plaintiffs, defendants, and their relatives to undergo these examinations. The courts requested the examinations from anthropological institutes and individual “experts” in the field of racial biology. By 1939, the Reich Interior and Justice Ministries had designated eleven institutes for this task, including the Anthropological Institute of Munich University, which began to accept cases from the city's superior courts.Footnote ³⁵

Genealogical and racial examinations typically consisted of blood-typing plaintiffs and their legal and supposed parents and “similarity analyses” (Ähnlichkeitsanalysen) between these persons. These analyses included comparative anthropometric measurements and photographic documentation of more than 100 body parts, including noses and hair color. If relatives were unavailable, examiners often accepted the person's private photographs, even if the shots were of poor quality.Footnote ³⁶ For the purpose of the court proceedings, the institute's expert, finally, had to appear at the superior court in question, present his findings, and answer questions.Footnote ³⁷

Superior courts could also enlist the help of the Reich Agency for Kinship Research (Reichsstelle für Sippenforschung, RfS) in Berlin. A Reich Justice Ministry decree of February 1939 indeed urged RfS involvement in distinct cases that evolved around the “supposed racial difference” (vermutliche Rassenverschiedenheit) between the examinee's potential fathers, especially between “a person of German blood and a Jew (Mischling).”Footnote ³⁸ Subordinated under the Reich Interior Ministry, the agency determined applicants' racial descent in cases of doubt largely by drawing on genealogical certificates. By the end of the war, the RfS had issued more than 160,000 decisions on descent, a sizeable number of them in conjunction with paternity cases.Footnote ³⁹

On the basis of the April 1938 law, finally, the Reichsgericht arrived at its widely cited June 1939 ruling on the establishment of descent of illegitimate children. For the first time, the court introduced “the possibility to [legally] establish the blood-based descent of illegitimate” offspring in a far-reaching manner. As in the case of post-April 1938 paternity cases involving legitimate children, these lawsuits permitted the inclusion of a prosecuting attorney, reaffirmed the relevance of the trial and its outcome for the Volksgemeinschaft, and rendered its outcome applicable to all aspects of civic life.Footnote ⁴⁰

The April 1938 alteration of the family law provided the prosecuting attorneys at the superior courts in Munich with new means to expand their role in the determining of Germans' descent, and increased the significance of racial thought in their everyday work. At the same time, the competing mechanisms of these processes provided greater access to the courts. Ambiguous discourses on race also encouraged a growing number of Germans of Jewish ancestry to seek paternity suits to further their interest and secure a racial reclassification.

Post-1938 Paternity Suits and the Munich Superior Courts

After the April 1938 alteration of the country's family law, the number of paternity suits rose noticeably, as state attorneys and ordinary Germans with and without real or suspected Jewish ancestors took advantage of these changes. Indeed, the Munich courts experienced increases that differed only slightly from those in other parts of the Reich. This article restricts its analysis to paternity cases initiated, or subsequently joined, by the courts' prosecuting attorneys. All in all, 127 of these case files are available in the Bavarian State Archive. Although the prosecuting attorneys had initiated only five of these paternity suits in 1938, they took on twenty-one cases in the following year. In 1940, the number rose to thirty-one. Compared with 1938, this figure amounted to more than a six-fold increase. Beate Meyer has documented a slower rise from three cases in 1938 to twelve in 1940 in the port city of Hamburg. For 1942, the total number of cases in the two regions was almost identical: Twenty-six case files for Hamburg and twenty-seven for Munich.Footnote ⁴¹ Even if the Munich collection is not complete, the existing files offer insights into broader patterns and practices.Footnote ⁴² Because these cases directly involved the litigants' children and other relatives, the courts' verdicts had an enormous impact on the lives of many men and women in the plaintiffs' extended families.

Although the general legal framework for the post-1938 paternity cases had been developed in Berlin and applied to the Reich as a whole, the application, meaning, and contestation of the altered family law and its racialized categories revealed unique characteristics in practices of the country's courtrooms such as the civil divisions of the Munich Superior Courts. A close reading of individual cases demonstrates these dynamics.

The Munich resident Erna Pfleger had attempted to start a court case that challenged her descent from her legal father as early as 1936.Footnote ⁴³ As the illegitimate daughter of the maidservant Bertha Pfleger whom Nazi racial law classified as “of German blood,” the twenty-four-year-old Pfleger managed to locate and contact Werner Israel Tulpe in Mexico. Tulpe, a professional actor and member of the Jewish community, had left Germany to escape persecution at the hands of the new regime. With the help of her Munich lawyer Micelli, Pfleger articulated her claim that Friedrich Mohs, a former art student in the city, was her “true father.” After an affair of several months, Pfleger's narrative read, Mohs had left her mother and the city in the summer of 1912 upon learning about the pregnancy. Bertha Pfleger then met Tulpe who, the litigant pointed out, had only “formally” recognized his paternity because of “compassion” for the “desperate mother of the child.” When Micelli filed a lawsuit for Pfleger at the Munich superior court in August 1938, he carefully made a case for the court's jurisdiction. As in the case of other documents for the court, Micelli used Pfleger's verbal and written statements—often her precise wording—and incorporated them into the broader parlance of his legal training. He pointed out that his client did not ask for child support, which would have referred the case to a lower district court. He also requested a trial in accordance with paragraph 256 of the ZPO that did not involve the state attorney and evoked the “legal interest” to determine parentage, as the documented father was “non-Aryan.” The additional reference to the Nuremberg Laws prompted the superior court to swiftly take on the case. The Munich judges did so even before the Reichsgericht's ruling of October 1937 explicitly allowed superior courts to do so.Footnote ⁴⁴

Judicial Councilor (Justizrat) Rudolf Arnold, the court-appointed counsel for the absent Tulpe, rejected Pfleger's claim on November 19, 1937. Arnold formally represented the defendant, but functioned in the interest of a Nazified court system and the Hitler state's concern for the population's racial health. By trying to insert an image of a “compassionate” Jew in the legal discourse at a time when the Nazi regime launched renewed campaigns against the “eternal” Jewish “enemy,” Pfleger's lawyer clearly undercut his client's case. Yet, the litigant and Micelli pressed on. They enlisted Pfleger's mother who testified at the Munich court in January 1938. Bertha Pfleger reiterated her daughter's claims, while presenting her younger self as a vulnerable and inexperienced woman from rural Bavaria who had come to the city in search of work. She took on an extra job as a model in Mohs' studio to supplement her meager income. Bertha also frankly emphasized that her daughter was engaged to be married to a well-off employee at the Chamber of Commerce, but was prevented from doing so in the post-Nuremberg Law world because of her current racial status as a Mischling.Footnote ⁴⁵

Neither the plaintiff nor her mother did anything to question the Nazi state's official racial definitions. These stipulations classified the plaintiff as a Mischling of the first degree because of the two “full-Jewish grandparents” of her legal father Tulpe. Instead, the two women intensified gendered narratives of female frailty and sexual male aggressiveness that hegemonic bourgeois discourses associated with socially marginal, bohemian lifestyles. Already alarmed by Mohs' initial refusal to collaborate with the court, Justizrat Arnold's subsequent letter to the court displayed a series of prejudices that coincided with the two women's narratives. Everyone knew, he stated in April 1938, how to characterize Mohs and his “people” (Völkchen). They “did not only paint at their studios.” Without contesting the plaintiff's case, he urged the court to proceed with the investigation.Footnote ⁴⁶

Further driven by the family law changes of April 1938 and the reiteration that paternity cases involving Jews were indeed in the “interest of the Volk,” the Munich Superior Court pushed the case ahead. This decision is particularly striking in light of the ongoing refusal by Friedrich Mohs, the alleged begetter of “German blood” whom Pfleger's mother and her lawyer were able to locate in Cologne, to recognize Erna as his daughter. In a statement to the District Court Cologne-Mühlheim, Mohs instead declared that Erna had to be the child of Tulpe, her documented father, and emphasized that he had left her mother upon learning about Bertha's sexual relations with Tulpe.Footnote ⁴⁷ Judge Weber enlisted the help of the RfS in Berlin. In so doing, he validated Pfleger's claims and the statements of her mother, cited and remade segments of the existing legal discourses on paternity cases, and provided an opening for future cases that resembled the Pfleger–Micelli approach and language. Weber's verdict also turned against Nazi Party radicals in Munich and Berlin who sought to stringently separate Germans and Jews and undermine what they perceived as attempts by men and women of Jewish ancestry to disguise their descent.Footnote ⁴⁸

Upon producing inconclusive findings in their work with the available genealogical certificates, the Berlin kinship researchers requested a racial examination of Pfleger, her mother, and the alleged begetter Mohs at Munich University's Anthropological Institute.Footnote ⁴⁹ The plaintiff herself, meanwhile, did not rest. In a letter of July 1940 that preceded the racial examination, Pfleger informed institute director Mollison of a meeting with her alleged begetter during which Mohs had accepted her as his daughter. There is no evidence that the examinee coordinated this step with a lawyer. After more than four years of fighting her case, Pfleger was certainly fluent enough in the language of paternity suits to take the initiative. She specifically evoked physical appearance and included descriptions of body parts that the Munich anthropologists would themselves analyze in the upcoming exam. Mohs gave her, Pfleger claimed, a picture from his student days that revealed strong similarities between his and Pfleger's chin. In so doing, Pfleger cited scientific discourses operative in the work of the institute and RfS and sought to include herself in the larger community of persons of German blood to which Mohs belonged. As Mohs was not a scientist, Pfleger pointed to his recognition of “forms and lines” all of which were skills he had developed “as artist” in the hope of increasing the authority of her claim.Footnote ⁵⁰

In October 1940, the Reich Agency for Kinship Office followed the Munich anthropologists' rather vague claims that there was an “overlap” in “several decisive inherited traits” between Pfleger and Mohs, whereas the examinee did not show any “Jewish racial features.” In a step that was in line with the kinship researchers' temporary relaxation of their standards, they accepted the report and declared Pfleger a “person of German blood.”Footnote ⁵¹ On January 29, 1941, Judge Maegerl of Landgericht Munich I, finally, pronounced the verdict that annulled Tulpe's legal paternity and supported the RfS's racial categorization.Footnote ⁵²

Although the long duration of Pfleger's struggle was not atypical for prewar cases of plaintiffs the Nazi state defined as partially Jewish, the superior court only took a few months or even weeks in many wartime cases, including those that led to outcomes desired by the plaintiffs. Although Nazi Germany did not switch to a total war economy that significantly reduced the functioning of the courts until early 1943, the country's leadership and Justice Ministry already oversaw an increasing simplification and streamlining of the court system by the outbreak of the war in 1939.Footnote ⁵³ In November 1940, the Munich court's civil division 3-a rendered the decision that the fourteen-year-old Rachel Cohn was not the daughter of the Jewish construction engineer Hans Cohn. In line with the April 1938 legislation, the prosecuting attorney Ludwig Leiss had initiated the suit in September 1940. During the proceedings, Leiss highlighted the concept of “period of conception” (Empfängniszeit). Rachel's mother Laura, a thirty-four-year-old cleaning lady, stated that she had only met her later husband Hans Cohn in July 1926, that is, two months after the end of her period of conception. Laura's testimony, therefore, directly reiterated the prosecuting attorney's concepts. The plaintiff's mother added that she had had sexual relations with a non-Jewish man during the period in question; a subsequent blood-typing of the alleged begetter, however, ruled out his paternity.Footnote ⁵⁴ Regardless, the sixty-seven-year-old Hans Cohn whom Laura had divorced a year earlier decided to testify and support his former wife's statements. The court readily accepted Cohn's testimony as “reliable” (glaubwürdig) and altered the identity of Rachel's father without resorting to a racial examination. This step by Judge Endres of Civilian Division 3-a was not a minor development. Despite repeated guidelines from the ministerial bureaucracy not to trust statements by Jews, Endres' verdict reiterated the acceptability of Jewish testimony, setting precedent and helping to expand the boundaries of applying legal decrees and codes.Footnote ⁵⁵

Cases from the height of the war reflect the striking repercussions of these shifting boundaries for plaintiffs of real or imagined Jewish ancestry. In his August 1943 verdict, Judge Pfeifer declared that Salomon Bayer, a late member of the Jewish community, was not the legal father of the forty-four-year old Elisabeth Ruhe.Footnote ⁵⁶ The court had reached its verdict in only a month. Much more remarkable was the circumstance that the prosecuting attorney had initiated the trial in the first place, as Ruhe's likewise deceased mother Elfriede Bayer, Salomon's wife, had also been a “full Jew.” In the eyes of the Nazi state, the baptized Ruhe was, therefore, Jewish. By that time, ministerial decrees had already instructed state agencies not to process requests by full Jews. Ruhe's husband, however, was of “German blood” and, with the help of a lawyer, formally joined the trial in support of his wife. The couple's child also turned their “mixed marriage” into a “privileged” one, which granted the family several important exemptions such as the right to live outside the ghetto-like housing for the remaining Jews of Munich.Footnote ⁵⁷

Judge Pfeifer mostly based his verdict on the May 1943 racial examination by Dr. Hella Pöch. The Salzburg-based anthropologist conducted this examination on behalf of the Reich Ministry of the Interior's kinship researchers in Berlin to which Ruhe had also turned, documenting that her struggle for reclassification had been a much longer process. The judge accepted the “convincing” report's finding that Ruhe's mother was the “only source” of her daughter's “Jewish traits.” The verdict even went as far as embracing the report's statement that Franz Geissler, a deceased man of “German blood,” was “very likely” Ruhe's biological begetter. As in the case of the litigant's documented parents, Pöch's examination only employed photographs of Geissler. The “expert” had obtained these family pictures with the help of the plaintiff. Pöch still conducted measurements of Ruhe, her husband, and their son. Detecting few “Jewish features” and summarizing Ruhe's overall “appearance” as “not Jewish,” Pöch's report singled out several individual body parts. Characterizing the examinee's short nose as “Alpine” (ostisch), she underscored that Ruhe's legal parents had “long, prominent noses with a fleshy… tip” that were typical for “Jews.” The noses of Ruhe and the mother of her alleged biological father Geissler, by contrast, were similar.Footnote ⁵⁸

The court deemed Pöch's report sufficient to overturn the legal supposition of Salomon Bayer's paternity, even if he had been married to Ruhe's mother during the period of conception and there was no evidence that the two did not or could not have intercourse at that time. In the eyes of the court, the Kinship Office-endorsed scientist and an additional statement by Kurt Mayer, the director of the Reich Kinship Office (Reichssippenamt, RSA), the Reich Agency's new name as of late 1940, validated Ruhe's claims. The fact that the court accepted Ruhe's case and ruled in her favor amounted to yet another intervention in the legal discourses and left a small, but discernible opening for others to follow.Footnote ⁵⁹

Even a verdict that favored plaintiffs like Cohn and Ruhe was not necessarily the last stage in the often lengthy struggles for racial reclassification. Minna von Felsenberg, the daughter of a deceased Jewish couple, and her lawyer, for example, convinced the prosecuting attorney in early 1943 to take on a case on her parentage. The two pointed out that von Felsenberg's husband, a German army officer, had urged her to approach the court, but could no longer support her case, as he had recently died in battle. At a time when an entire country was reeling from the devastating defeat at Stalingrad, this emphasis probably aided Minna von Felsenberg's efforts. Subsequently, the Munich court even followed the litigant's claim that a man of “German blood” was her true begetter and ruled in her favor. Yet, the Supreme Court in Leipzig reviewed von Felsenberg's case and, as late as January 1945, annulled the Munich verdict. The Leipzig judges explicitly stated that the two amateur pictures of the documented biological father and the Munich court's research on the circumstances surrounding the plaintiff's conception in 1891 were insufficient. As the regime launched the final stage of its genocide of European Jewry, von Felsenberg's reprieve from persecution had ended.Footnote ⁶⁰

From the onset of the changed family law in 1938, officials at Munich's superior courts also time and again intervened in legal discourses in ways demanded by the local Nazi leadership eager to “de-Judaize” the city. Judges at these courts repeatedly ruled against litigants like Charlotte Mueller whom Nazi state officials categorized as “full” or partially Jewish at the beginning of their trial. Aided by her lawyer Hans Stöhr, Mueller won Landgericht Munich I's support for a paternity case in the summer of 1939. The former maidservant claimed that the “non-Aryan” businessman Rainer Tasse could no longer be regarded as the father of her illegitimate five-year-old son whom Tasse had recognized as his offspring. Instead, the non-Jewish salesman Horst Fuchs was the child's biological begetter. Mueller stated that she had only recently learned about Tasse's Jewish descent, which prompted the recategorization of her son as a “racial mixed breed” (Rassemischling). Drawing on Mueller's statements, Stöhr argued that his client had had intercourse with both men, but stressed that on the basis of mere “appearance” (Augenschein) there was a great similarity between the boy and Fuchs. The alleged begetter, however, was already married and denied his paternity, Stöhr and Mueller emphasized, because he did not want any “unpleasantries.” In his statement for the court, Stöhr referred to the Reichsgericht's June 1939 ruling and legal discourses about paternity cases and race. He reiterated that in light of the recent racial reclassification of his client's son as “Jewish Mischling,” there was indeed a “legal interest in determining his descent.”Footnote ⁶¹

Evoking imagined depictions of Jewish sexual perversion in broader Nazi discourses, Mueller herself testified in a December 1939 court session that Tasse had slept with her in a “non-natural way.” One could not verbalize this “kind of intercourse,” she added, but it was impossible to get pregnant in this manner. Simultaneously, this argument served to undermine Fuchs' ready defense that Mueller had had sexual relations with more than one man during the period of conception which in traditional legal discourses could quickly bring the lawsuit to an end. Following Stöhr's request, the superior court ordered both blood-typing and a racial examination.Footnote ⁶² In April 1941, the Anthropological Institute in Munich examined Mueller, her children, and the defendant. As Tasse had long escaped Germany, Professor Mollison, the institute's director, once more used a family photograph for his report. The findings stressed “glaring similarities” between Tasse and Mueller's son and described Fuchs' paternity as “unlikely.”Footnote ⁶³

In response to this report's unfavorable findings, Mueller did not only intensify her anti-Jewish lingo, she also directly questioned the anthropologists' findings and procedures, going beyond her lawyer's previously more refined legal parlance. Mueller prepared a written statement for Stöhr who forwarded it to the court. If my child, she stated, descended from “the Jew” (Jud), it had to reveal “typical Jewish racial features” the existence of which Mueller ardently denied. Mollison, the plaintiff further stated, relied on an “unsuitable” picture of Tasse. The Munich-based anthropologist had also emphasized the son's darker skin color which, Mueller retorted, was the mere result of spending summers outside. They lived after all on a working farm. By citing Mollison's constructs and the meaning they conveyed, Mueller intervened in the legal and scientific discourses that guided the examination, beginning to disrupt them and causing a rupture and space for reinscription.Footnote ⁶⁴ Mueller's practice sought to insert a different interpretation in this rupture and replace the scientist's truth claim. Even if the superior court did not grant Mueller's request for a decision by the RSA in Berlin, court officials eventually ordered the superior court's own medicolegal expert to offer a second examination. When this examination failed to invalidate Mollison's findings in October 1941, Judge Walter von Poeppinghausen threw out Mueller's suit.Footnote ⁶⁵

Von Poeppinhausen's verdict reflected distinct shifts in the Munich courts' handling of paternity cases that took place with the intensification of the war effort and the systematic implementation of the regime's genocidal policies in 1941––42. Superior court judges' rulings and discursive interventions reduced the significance of racial examinations, raising the hurdles for the successful racial reclassifications of litigants of alleged Jewish ancestry and strengthening the role of the court. Von Poeppinghausen's explicit denial of Charlotte Mueller's requests for an RSA chief expertise (Obergutachten) illustrates this shift. Pointing to the limitations of racial examinations, the Munich judge reiterated that these examinations could only state degrees of “probability.” They were only decisive if combined with evidence of “other essential circumstances.” Even a once-conservative judge like von Poeppinghausen who had served on the bench prior to 1933, and enraged his prewar superiors by making critical remarks about the Gestapo, reflected this hardened stance that often proved detrimental to litigants of partial Jewish ancestry. By 1944, more verdicts of the Munich courts were based on the “judge's legal inspection” (richterlicher Augenschein) than on examinations by anthropological institutes.Footnote ⁶⁶

Furthermore, a more ideologically-oriented and radicalized ministerial bureaucracy in Berlin introduced stricter control mechanisms that had a direct impact on the practices of legal courts across the Reich. Whereas the Munich courts reduced the influence of the anthropological institutes, their judges and prosecuting attorneys acted even more in line with Nazi ideology and the radical anti-Jewish parlance of officials in the SS and Gestapo apparatus. These officials shared defendant Horst Fuchs's position that women like Charlotte Mueller were engaged in “elaborate tactic and fabrication” to disguise their “true” racial descent that posed a threat to the Hitler state. Indeed, more Munich verdicts in trials of Germans of Jewish ancestry directly drew on the language provided by Justice Ministry officials such as Franz Maßfeller who had urged jurists not to rely on evidence provided by Jews. In October 1944, for example, Judge Pfeifer ruled against Elfriede Freundlich and her challenge to the identity of her legal Jewish father, specifically stating that evidence, especially from the plaintiff's mother, had to “be regarded with particular suspicion.” As a “full Jew and mother she was obviously guided by the goal to save her child from the disadvantages of her Jewish descent.”Footnote ⁶⁷