In the nineteenth century, Carl von Clausewitz argued that war was the continuation of politics by other means. In the twentieth century, military occupation became the extension of war by other means. This was true in Germany after World War II. The Allies used military occupation to rebuild German political institutions according to Western liberal standards. American authorities considered the restoration of the legal system crucial to that reconstruction. Andrew Szanajda has provided us with a thoroughly researched and well-written account of this effort in his book The Restoration of Justice in Postwar Hesse, 1945–1949.

The Americans established four overarching goals with regard to the legal system: abolition of all National Socialist laws, destruction of all National Socialist courts, reestablishment of the German legal system as it stood before 1933, and the removal of all National Socialist legal personnel from the administration of justice. Accordingly, Szanajda divides his book, originally a Ph.D. dissertation written at McGill University, into four parts: justice during the Third Reich, American war-time preparations for justice during the occupation, the postwar restoration of the legal system, and the reinstatement of German legal personnel.

The Hitler regime coordinated the legal system under the control of the government. Hitler abolished Germany's federal structure, placing the legal system under the control of the national Minister of Justice, who answered directly to Hitler. With their independence abolished, the regime put increasing pressure on jurists to join the Nazi Party or one of its professional organizations, and to conform their legal decisions to “the sound sentiments of the people.” Legal professionals were to put away their own interpretation of the law and decide cases according to the new political situation. Szanajda shows that the regime reacted swiftly when legal professionals tried to exert their independence. For example, during the Reichstag Fire Trial of 1933 the Supreme Court found only the young Dutch communist, Marius van der Lubbe, guilty of setting the fire, even though the regime demanded the court declare a nation-wide conspiracy. In response, Hitler established the system of “Special Courts,” including the notorious “Peoples' Courts” (Volksgerichte) comprised of politically reliable judges aided by loyal party members, removing all cases of a political nature from the regular court system (p. 24). When the regular courts still would not toe the party line, Hitler declared himself “supreme judge” with the right to overturn any legal decision.

Szanajda points out that the Special Courts became the first target of American legal reform in Germany. Allied Control Council regulations abolished all National Socialist courts, abrogated all National Socialist laws, reestablished the idea of equality before the law, and reestablished the German legal system as it existed before 1933. Even though these measures had been taken in the first few months of the occupation, it was not until late 1946 that the entire legal system in Hesse was fully functioning. The reason for the delay was the personnel problem. American policy, spelled out in the Joint Chiefs of Staff Directive 1067, dismissed all legal professionals who held membership in any National Socialist organization. This excluded most German jurists. American authorities quickly amended this policy, banning professionals who had joined the party before May 1, 1937. Szanajda observes that this modification still did not free up the personnel needed to staff the courts. To get at least the local courts functioning to adjudicate an ever increasing backload of cases, the Military Government again modified its policy. In March 1946 the Military Government approved the “Law for the Liberation from National Socialism and Militarism.” The “Liberation Law” required all Germans to fill out a questionnaire, the infamous “Fragebogen,” and then defend the document before a denazification tribunal staffed by politically untainted Germans. Szanajda notes that problems arose when Germans on the tribunals classified most of the respondents as “followers” and allowed them to return to their pre-war positions in the legal system. By 1948 the Military Government lamented the “renazification” of the legal system.

Szanajda suggests that this was not the case, at least in spirit (p. 170), but the statistics have been confirmed by scholars on both sides of the Atlantic. In Bavaria, some estimate that as many as eighty percent of jurists had been National Socialist Party members. This was also true in the British zone. Szanajda admits that Hesse was no different (p. 135), but argues that the personnel problem never became a major threat to the new system. Even though the effort to remove all National Socialists failed, Szanajda shows that the Military Government removed most “incorrigible” National Socialists from the legal system (p. 151). Still, some heavily tainted professionals found their way back into judicial office and even thrived under the new system. When these holdovers were discovered, they were usually forced to resign, and removed and prosecuted where necessary by German authorities.

The strength of The Restoration of Justice in Postwar Hesse, 1945–1949 is that it contributes to the debate regarding why Bonn did not become Weimar. Germany's postwar republic did not collapse under the weight of an overly conservative, illiberal bureaucracy. Among other safeguards, Szanajda credits the establishment of constitutional courts at the state and federal levels that marked a real break with the Weimar past. The constitutional courts imposed a consistent reading of the constitution on all judges and branches of government (p. 104). Most importantly, the constitutional court became the court of last resort for individuals defending their civil liberties from the power of the state.

Szanajda's book emphasizes how the Military Government and German authorities established a judicial system that could withstand antidemocratic threats from right or left. German legal professionals, transformed by their experiences in the Third Reich and occupation, were determined to create and maintain a Rechtstaat, a state based on the rule of law, even after the occupation ended. This is why Bonn did not repeat the Weimar experience, a lesson Szanajda illuminates for us once again.