On September 16, 1935, the sixty-one-year-old Berthold Haase gave up his practice of law in Berlin and applied to the court to strike his name from the roster of attorneys. With that, as he wrote at the time, he voluntarily ended his career, “in which I devoted myself earnestly and joyfully to advancing justice and invested all my strength to upholding and strengthening German culture.”Footnote 1 But on that day the Nazi regime published the Nuremberg Laws—the Law for the Protection of German Blood and Honor, the Reich Citizenship Law, and the Reich Flag Law—and Haase prepared to emigrate.
In his immediate and decisive response to the Nuremberg Laws, Haase served as neither a model for his peers nor a typical example for historians. The Nuremberg Laws were more of a turning point for the history of Germany's Jews than of its Jewish lawyers. Those lawyers had suffered a much harder body blow more than two years earlier, at the outset of the Nazi regime, with the enactment on April 7, 1933, of the Law on the Admission to the Bar. Within months, the number of Jewish lawyers had dropped by approximately one-third, and those remaining faced economic devastation.Footnote 2 True enough, the Nuremberg Laws drove the profession into further decline. But it was one episode among many. When he later wrote about his life, Max Friedlaender, a prominent Jewish legal ethics expert in Munich, referred to the laws’ passage only as the moment when he sought offices with lower rent.Footnote 3 Like Friedlaender's, the memoirs of many German Jewish lawyers mention the Nuremberg Laws only in passing—or not at all.Footnote 4
While the Nuremberg Laws played some role in Nazi Germany's elimination of Jewish lawyers, the focus of this article is different. Were there any Jewish lawyers who analyzed the Nuremberg Laws? If so, what was their analysis? After all, the practice of law regularly involves construing laws, and laws inevitably generate varying interpretations and commentary. What commentary did Jewish lawyers offer on the Nuremberg Laws?
The answer is that almost no Jewish lawyers wrote an in-depth critique of the Nuremberg Laws. Most Jewish lawyers understood that these laws were politically significant, some grappled with their practical consequences, and a few tried to limit their legal reach in individual cases. But spending time and energy on an exegesis seemed pointless to almost everyone—except a certain Max Hellmann. A run-of-the-mill lawyer in Leipzig, Hellmann was an outsider. First a convert to Christianity, then a widower, and ultimately an impoverished pariah, Hellmann faced criminal prosecution for employing a non-Jewish woman younger than forty-five. His defense was unexpected, unorthodox, and, perhaps, baffling. But ultimately it constituted one of the most devastating contemporaneous criticisms of the Nazi legal system.
Contemporaneous Jewish Commentaries on the Nuremberg Laws
A good starting point for a general inquiry into the approach of Jewish lawyers to the Nuremberg Laws is Ernst Fraenkel. A rising star among labor lawyers and Social Democrats in the late Weimar Republic, Fraenkel remained in Germany after the Nazis had come to power and did not leave until September 1938. While still there, he drafted his classic work The Dual State—the first full-length analysis of the Nazi legal system.Footnote 5 In that book, Fraenkel did not tackle the Nuremberg Laws directly, but he did describe a Reich Supreme Court decision of June 27, 1936, that tracked their underlying reasoning. The case involved a contract concluded in February 1933 between a film company and Jewish director. Soon the film company withdrew from the contract, and the director sued. Since the contract allowed for cancellation only in the event of the director's sickness or death, the legal issue was whether the director's Jewish origin was the equivalent of sickness or death. The court held that it was. The Nazi worldview, according to the court, distinguished those of German descent, who merited full legal recognition, from those with lesser rights. Since the loss of all rights destroyed the legal person and was analogous to physical death, the court concluded that treating the Jewish director as legally dead was “unbedenklich [unobjectionable].” That word—unobjectionable—stuck in Fraenkel's craw. “One must have a feel for the nuances of the German language,” Fraenkel wrote, “to appreciate the grossness of this decision.” If Germany's highest court could so facilely damn more than six hundred thousand persons to “civil death,” then “there is no point to commentary.”Footnote 6 His response to the Nuremberg Laws was, at least implicitly, to throw up his hands and ask: What more is there to say?
Jewish lawyers shied away from saying anything much about the Nuremberg Laws since they knew that their kernel was antisemitic discrimination. The German legal professionals with an interest in providing legal commentary were Nazi jurists. Among law professors, many imagined themselves as explorers probing the newly opened frontiers for legal inequality, as pioneers venturing into a brave new world of German honor and antisemitic contempt, as heroes daring to construct an unprecedented discriminatory Nazi legal system.Footnote 7 Professors met their match only in judges, many of whom rushed to expand the reach of the Nuremberg Laws. The most conspicuous example of such judicial complicity was the Supreme Court's decision of December 9, 1935. While the Law on German Blood and Honor criminalized coitus (Beischlaf) between so-called Aryans and Jews, Germany's chief prosecutor pressed the court to expand the provision's reach beyond its language. The court obliged, holding that sexual intercourse included any kind of sexual contact: “The concept of sexual intercourse as used in the Law on German Blood and Honor encompasses all natural and unnatural sexual intercourse, besides coitus also all sexual activity with a member of the opposite sex that is carried out in order to substitute for coitus in satisfying the sexual urges of at least one of the partners.”Footnote 8
If professors, judges, and prosecutors provided commentary on the Nuremberg Laws, did defense lawyers respond with commentaries of their own? For example, did Jewish defense lawyers who represented clients charged with racial defilement (Rassenschande) analyze the nature of this newly minted crime?Footnote 9 The answer is probably not. This lack of analysis makes sense in light of the distinction between political justice and nonpolitical justice. In overtly political cases, defense counsel may defend clients with the goal of making political arguments.Footnote 10 But Nazi authorities, who surely put prosecutions to political use, hardly accommodated political defenses, certainly not in racial defilement cases. Whatever the nature of defenses against Nuremberg Law prosecutions, lawyers were not reshaping client representation into legal commentary.Footnote 11
A good defense did not need commentary. In a racial defilement case, for example, the prosecutor had to prove miscegenation. The first step in the proof was to determine the races of the participants. Thus, an ideal defense strategy would be to contest, if possible, that the defendant was Jewish.Footnote 12 An alternative would be to disprove that the sexual partner was Aryan.Footnote 13 Such strategies reflected the law; they did not question it. Lawyers tried to show that this particular defendant had not engaged in the conduct that the law criminalized. While some defense lawyers may have cleverly developed the evidence and intelligently argued the law, they took the Nuremberg Laws themselves as a given. That is precisely what any good defense lawyer would have done in a nonpolitical case: construe the law to defeat the prosecution, not sacrifice a client's interests to make a general legal argument or score a political point.
In the quest for commentary by Jewish lawyers on the Nuremberg Laws, we turn from lawyers defending individual defendants to those representing the larger Jewish community, or communities. Jewish leaders, many of whom were lawyers, did respond. But, according to the historian Daniel Fraenkel, lawyers for the Central Union of German Citizens of the Jewish Faith (Central-Verein deutscher Staatsbürger jüdischen Glaubens), the main German Jewish defense organization, never called into “question the legality of the infamous Nuremberg Laws.”Footnote 14 In discussing how the Jewish community should react, Jewish leaders, as well as newspapers, did not critique them so much as provide information about their content and address practical problems that they had either created or aggravated.Footnote 15 Jewish organizations redoubled already existing efforts to provide legal assistance, such as offering legal advice on transferring property and emigrating.Footnote 16
Here, at last, a virtual legal commentary on the Nuremberg Laws appears. Within the Jewish community, a discussion, even a debate, emerged in the months after their promulgation that touched on an important legal principle. The actual direct debate concerned whether the Nuremberg Laws benefited Jews insofar as those laws provided new clarity about the status of Jews, a legal framework for regulating the relationship between other Germans and Jews, and a badly needed basis for stability and security.Footnote 17 The implicit legal question concerned the consequences of the Nazi repudiation of the Rechtsstaat doctrine, the German variant of the rule of law. Under the Rechtsstaat doctrine, people enjoy legal security when they can predict the consequences of their behavior based on reasonable laws that are clear, neutral, and equal—equally applicable to everyone.Footnote 18 But the Nuremberg Laws eliminated this final ingredient, namely, equality. Instead, they announced inequality as a high principle—in particular, the unequal treatment of Jews. If the Jewish community had framed its debate in legal language, the specific question would have been whether the Nuremberg Laws would, or could, assure Jews security by providing clarity about their legal status, even if, at the same time, those laws eliminated the equality of Jews. The more general legal question would have been whether laws that treat members of a minority as inferior rather than equal can still secure their well-being. The closest formulation in legal terms of the consequences of the Nuremberg Laws for the security of Jews in Nazi Germany came from the Organization of State Zionists (Staatszionistische Organisation), an isolated, right-wing revisionist group that wanted to work with Nazi authorities to promote Jewish emigration to Palestine. According to one of its statements, “the sense of uncertainty … which [had] prevailed in many Jewish circles … vanished” in light of the Nuremberg Laws. “The Jews have lost the legal status of equality,” the statement continued, “but at least henceforth they stand on a firm legal basis.”Footnote 19
The historical verdict on this shadow legal debate is obvious. Discrimination does not secure stability. When treated as unequal under the law, members of a demoted group cannot rely on the law or predict the consequences of their acts, and thus lose security.Footnote 20 In Nazi Germany, legal discrimination transformed any legal claim by Jews into a claim for equal treatment, which someone like, for example, Joseph Goebbels, Nazi Germany's minister of propaganda, thought was an affront.Footnote 21 Legal discrimination also ushered in the new crime of racial defilement, which turned Jews into outcasts to be shunned, polluters to be feared, and targets to be attacked. Robert Kempner, the tenacious German Jewish lawyer and postwar Nuremberg trial prosecutor, described the results: mixed couples and even friends, he later said, recoiled from going out in public “not because they feared being accosted [e.g., by a mob], but in order not to be brought to court for racial defilement, in order not to be taken away.”Footnote 22 The Nuremberg Laws made law more dangerous than the mob.
The Nuremberg Laws turned the world upside down. For Jews, the feeling must have been dizzying, the legal landscape disorienting, the legal options bizarre. With such a perspective in mind, we leave behind the other commentaries on the Nuremberg Laws and look at the case of Max Hellmann of Leipzig.
Max Hellmann and His First Letter to Hitler
Max Hellmann was an obscure man, probably unexceptional.Footnote 23 The only source for his life and case—which took place between the autumns of 1937 and 1938—is his personnel file kept by the Reich Ministry of Justice. The rest of the historical story is inference and commentary.Footnote 24
Hellmann was born Jewish on May 27, 1884, in Leipzig. Admitted to the bar on March 19, 1913, he served during World War I in an administrative capacity but not on the front (because of a heart problem), and then practiced mostly criminal law. He worked as a solo practitioner, earned a modest income (100 reichsmarks [RM] per month in the mid-1930s), and lived in a home that he owned.Footnote 25 In 1924, he converted to Lutheranism—making him one of Germany's approximately fifty thousand “full” Jews who had converted—and a month later he married a non-Jewish woman, Elsa Haferkorn. The couple had no children.Footnote 26
Unhappy with his plight under the Nuremberg Laws, Hellmann wrote to Adolf Hitler on February 24, 1936. Letters to Hitler were not unusual. Indeed, supplementary regulations to the Reich Citizenship Law explicitly authorized Hitler to grant exemptions from its provisions.Footnote 27 Police found Hellmann's letter when searching his home almost two years later. The records leave unclear whether he drafted but never sent it, or sent it and kept a copy.Footnote 28 In either case, the letter indicates Hellmann's thinking a year and a half before his court case.
Hellmann wrote to Hitler less in despair than in frustration. Like many other non-Aryan converts, Hellmann felt caught between being a loyal German and a “racial” Jew.Footnote 29 Reflecting a widespread antipathy of German Jews against Eastern European Jews, Hellmann hastened to assure Hitler that his father—whom Hellmann portrayed as an almost prophetic figure—“was a fanatic” against Eastern European Jews. He had warned that they threatened “‘gradually to Jewify our Germany and de-Germanize German Jews.’”Footnote 30 Hellmann, a German Jew who despised Eastern European Jews, seemed to wish to be a German who could hate all Jews.
Hellmann suggested that he might be a non-Jewish German after all. What, he asked, was the source of the utterly German temperament of his father, whose first name “Otto” captured his Bismarckian character? Hellmann developed a theory: in the sixteenth century, many Aryans had become Jewish because of interest in the Hebrew language and then had forgotten their origins. That theory explained “how my father's Aryan heart and German temperament had entered his Jewish body.” But, as if hardly taking the theory seriously himself, Hellmann mentioned it fleetingly, skipped any evidentiary support, and moved on.Footnote 31
This weak theorizing aside, Hellmann saw his only hope in “an administrative act of our Führer” to expel him from Jewry. He did not feel Jewish and, as a Jew under the law, he could not satisfy “the German feelings of [his] heart.” While he had never directly served either Germany or the Nazi Party, he gave whatever small change he could spare from his wretched legal practice to the annual Nazi charitable drive, “Winter Aid.”Footnote 32
Hellmann seemed to lose all hope for Hitler's pardon as quickly as he had left behind the theory of his Aryan origins. If Hitler rejected his request, then Hellmann fantasized about a rather odd medical solution—not of blood transfusion but of organ transplant, not of absorbing into his bloodstream more German blood but of donating his German heart. Hellmann could only wish “that medical science may soon succeed in exchanging the hearts of living people, so that my heart that feels German may be implanted in some man who bellows in the street an adamant ‘Heil Hitler!’ but feels so little German that he needs schooling in being an Aryan German.” As if worried that he had struck a wrong note, Hellmann begged indulgence since “only his heart wrote while his mouth fell mute.”Footnote 33
Hellmann closed his letter tormented by the dilemma of how he might extol Hitler as an admiring German and still avoid disobeying the law as a legal Jew. According to newspaper reports, non-Aryans were forbidden from using the German greeting. But the Reichgesetzblatt (Reich Law Gazette) had not yet published anything on the matter. Drawing an analogy to the Nuremberg Flag Law, Hellmann opined that he might properly close his letter with “Heil Germany and its Führer!”Footnote 34
Reading Hellmann's letter to Hitler is like overhearing him talking to himself as he tried, desperately, to figure out how he might fit into the new topsy-turvy world of Nazi Germany. His frustration lit his imagination, which then seemed to sputter out. But his life was about to take new turns that would drive him into deeper despair, ignite his legal imagination, and set it ablaze.
Max Hellmann's Mockery of Hitler during his Prosecution under the Nuremberg Laws
Hellmann's wife died unexpectedly in the late spring of 1936.Footnote 35 Less than a year and a half later, in the fall of 1937, prosecutors in Leipzig charged Hellmann, then fifty-three years old, with violating section 3 of the Law on German Blood and Honor. His case stands out, but not for the hypersexuality and officially sanctioned voyeurism that characterized prosecutions for racial defilement.Footnote 36 Prosecutors charged him under a less serious provision, section 3, that had more to do with social relations than with sexual contacts: it barred Jews from employing in their households Aryan women younger than forty-five.Footnote 37 Such prosecutions were relatively rare and, when they did occur, the sentences were relatively mild.Footnote 38 But pointing out the lesser gravity of the offense should not prevent us from trying to imagine the passions of the moment—a defendant's immediate feelings of dismay, anxiety, and injustice.
The allegations—contained in a complaint filed on October 30, 1937, triggering main proceedings scheduled for January 15, 1938—were so simple that the prosecutors anticipated calling only two witnesses: the fifty-three-year-old cleaning woman Frida Goldammer and the thirty-four-year-old cook Gertrud Dittrich.Footnote 39 After Hellmann's wife died, according to the complaint, Dittrich prepared his meals. Usually she cooked them in her own home and then brought them (or sent them) to his. But a modest shift in routine from January to late May 1937 took on criminal significance. Twice a week, with Hellmann's acquiescence, Dittrich prepared Hellmann's meals not in her home, but in his. Furthermore, on those days the two of them, along with Goldammer, ate together in the kitchen. The prosecutors alleged that Hellmann had committed a crime with this arrangement because he had employed (or “occupied”) Dittrich, an Aryan woman younger than forty-five, in his household.Footnote 40 As both prosecutors and judges later noted, Hellmann must have acted with intent since, as a lawyer, he must have known the law.Footnote 41
Whatever his intent, Hellmann, as a lawyer, knew how to proceed with a defense. The old saw that a lawyer who represents himself has a fool for a client casts little light on Hellmann's circumstances. While the possibility of hiring counsel existed in theory, he probably could not have afforded an attorney, probably would have had trouble finding one, and must have realized the obstacles facing lawyers representing Jews charged under the Nuremberg Laws.Footnote 42 He may have also realized that taking on his own defense gave him greater tactical flexibility. Unlike his musings in his earlier letter to Hitler, he now made official submissions.
In a legal submission in mid-December in his defense, Hellmann gave his own version of events. For one thing, he insisted the evidence would show that Dittrich had come to his apartment only once a month and only until the end of April 1937. In making these corrections, Hellmann seemed to be insisting on factual accuracy, but in framing these corrections as objections, he verged on nitpicking, for he was highlighting factual differences that had no legal consequence. What Hellmann thought had legal consequence was something else: Dittrich came to his apartment simply to cook potatoes for herself.Footnote 43
In making this last factual modification, Hellmann was also recasting the legal dispute. Section 3 of the Law on German Blood and Honor was concise: “Jews may not employ in their household female citizens of German or related blood who are younger than forty-five years old.” The critical word was the German verb beschäftigen, which can be translated into English as to “employ,” “occupy,” or “busy oneself.” The prosecutor, Hellmann argued, must be contending that he had employed the thirty-four-year-old woman in his home by letting her cook for herself in his home. Hellmann's position was this: “If she busies herself [sich beschäftigt] with her own affairs, then I do not busy her [beschäftige ich sie] with mine.”Footnote 44
The recast legal dispute, Hellmann thought, exposed the flaw in the prosecutors’ position: the statute simply did not cover his acts. To have criminalized his alleged misconduct, section 3 of the Law on German Blood and Honor would have needed additional language. But the law lacked the words that would have been necessary for rendering him guilty. There was a statutory gap. In particular, for his conviction, the statute would have needed the following additional sentence: “A Jew is also liable if, with his consent, the woman occupies herself for herself, for her own household, or for a third person, as, for example, cooking for herself, for her own household; mending her own clothes for herself; doing needlework for herself, etc.”Footnote 45 By failing to acknowledge this gap in the statutory language, the prosecutors misinterpreted the provision's operative word, beschäftigen.Footnote 46
For Hellmann, the next logical step seemed “unobjectionable” (unbedenklich). By misinterpreting the statutory language, the prosecutors had misconstrued the legislative intent. In the Nazi legal system, legislative intent meant Hitler's intent, and the prosecutors had gotten Hitler's intent wrong: “I have the impression that ‘popular sentiment’ (a construct created by the Führer) in regard to the word ‘beschäftigt’ of section 3 directly contravenes the Führer's will.”Footnote 47 Hellmann's objections, in the words of a later prosecutor, “culminate in the contention that the prosecutor's interpretation of the Law on German Blood and Honor cannot be reconciled with the words of the Führer as legislator.”Footnote 48
The procedural step had been obvious to Hellmann from the beginning: he had to issue a subpoena—a formal legal document that orders someone to appear in court at a specific time to give testimony—to Adolf Hitler. That is what Hellmann had done. On November 13, 1937, in his answer to the complaint, he moved to subpoena Hitler as a witness at the trial scheduled for January 15, 1938. The local court (which could not have welcomed this hot potato) declined to issue the subpoena. Procedural wrangling ensued. On December 17, 1937, Hellmann instructed the bailiff (Gerichtsvollzieher) to deliver the subpoena to Hitler. Hellmann punctiliously invoked the Law on Criminal Procedure, section 220, paragraph 1, which allowed defendants to subpoena witnesses directly.Footnote 49 A week later, on December 24, the chief judge of the local court blocked the move, ordering the bailiff not to deliver the subpoena. Equally punctiliously, the chief judge also cited the Law on Criminal Procedure, explaining that section 220 was superseded by section 49, which prevented subpoenaing the Reich Chancellor for appearing at trial (providing, instead, for his testifying only in his home).Footnote 50 Hellmann was undeterred. Five days later, on December 29, he directly sent Hitler a letter that he claimed constituted a subpoena. In that letter, Hellmann argued that a private submission was his only option since the legal route of a subpoena by the bailiff had been blocked. He noted further that the purpose of a subpoena was to inform the witness of the session. He added that section 49 did not apply anyway to the person of the Führer and Reich Chancellor. As to the proper form of address to Hitler, Hellmann shed the inhibitions he had exhibited in his letter of February 1936: in the salutation and twice in the text of his letter of December 29, 1937, Hellmann referred to Hitler as “Mein Führer.”Footnote 51
Subpoenaing Hitler—a bold move—needed justification. In his various submissions, Hellmann provided it. Since Hitler was the supreme legislator, legal interpreter, and judge, only he could interpret section 3 of the Law on German Blood and Honor and apply it to Hellmann's case. In contrast to Hellman's previous attempt to learn legal requirements from newspaper reports (as he described in his letter to Hitler of February 1936), he now invoked the airwaves. Hellmann wanted Hitler to testify about the content of his speeches broadcast on the radio.Footnote 52 In his answer to the complaint of November 13, 1937, Hellmann wrote that the Führer would be a “trial witness on the subject of the content of his speeches who will testify that his one and only will is enshrined in the laws and decrees. The wording is so simple and clear that the simplest person can understand and there is nothing to quibble about. Quibbling is only the wishful thinking of individuals who want to create martyrs rather than follow his will.”Footnote 53 Hellmann elaborated:
The Führer, as he will testify further as a witness in the main proceedings, is an enemy of all quibbling—which we jurists call interpretation—that only creates arbitrary opinions. ‘If someone,’ as the Führer will then testify further, ‘asks me why I do not take remedial action, my response is that I cannot be present everywhere and cannot know everything.’ As a non-Aryan under the law, I was overwhelmed [in listening to] my radio at home by a burst of applause of fellow countrymen [Volksgenossen] who heard such words. My whole heart jumped for joy.Footnote 54
Having subpoenaed Hitler and provided justifications, Hellmann wanted to thwart a possible bureaucratic runaround. He thus insisted that Hitler forgo sending a surrogate but instead appear in person. Since Hellmann intended to question Hitler about particular points of law, sending “an expert representative,” such as a jurist, would be worthless: “For the defendant, it is a matter of the Führer in his very own person as the direct witness.”Footnote 55 In his personal letter to Hitler, Hellmann explained that the leader's own words from his own mouth were essential testimony.Footnote 56
Ever careful to ensure the full testimony of this vital defense witness, and in anticipation of the inquiry that he expected from the judge, Hellmann made another demand: until it had announced its decision, the court must hold Hitler in custody. Hellmann explained that he “must … unfortunately deny that the witness can be released again after his testimony. … Experience shows that questions for a witness can be possible until immediately before the issuance of a criminal judgment. … Consequently, the release of the witness can take place only after the close of the main proceedings.”Footnote 57
Having subpoenaed Hitler, insisted on his personal presence, and demanded his incarceration, Hellmann pointed Hitler to a means of escaping his new legal entanglements. As supreme legislator, Hitler had the power to legislate. He could invalidate the subpoena if he filled in the gap in the Law on German Blood and Honor by publishing the missing sentence in the Reich Law Gazette. Hellmann closed the subpoena by stating that the publication of this one missing sentence would do the trick “regardless of whether or not imposed retroactively.”Footnote 58
Nothing suggests that Hellmann had second thoughts, even if he tried, at times, to maneuver with tact. For example, in his personal letter to Hitler of December 29, 1937, Hellmann conceded that the Führer did not have to obey his subpoena “since the concept of leadership, in my opinion, rules out an obligation of the bearer [of leadership] to appear as a witness.”Footnote 59 Thus, in case Hitler chose not to comply with the subpoena, Hellmann asked that Hitler instead submit a certificate indicating his views on Hellmann's legal question.Footnote 60 In that same letter, Hellmann modified some phrasing in his original subpoena, replacing the word quibbling with the blander word interpretation and omitting altogether the remark about the creation of martyrs. But he stuck to his basic points.Footnote 61
At the main proceedings on January 15, 1938, Hellmann improvised. The court apparently found that Dittrich had cooked for four people—herself, her husband, Goldammer, and Hellmann. In response, Hellmann argued that Dittrich, in giving him some of what she had earlier cooked for herself and others, had acted just as permissibly as an Aryan tavern proprietor serving him food.Footnote 62 The legal argument made sense, similar to ongoing legal debates about whether non-Jewish women could serve Jewish men at guesthouses, hotels, and resorts.Footnote 63 But it skirted the central legal dispute between Hellmann and authorities as to whether he had employed a non-Jewish woman younger than forty-five years old in his household. In that dispute, Hellmann maintained his original position.
In one vivid glimpse from his personnel file, Hellmann appeared to behave histrionically in court. Toward the end of the main proceedings, he requested an adjournment “for several minutes so he could find out whether the Reich Chancellery of the Führer had sent the clerk's office at the local court pages from the Reich Law Gazette on the modification of the law [of German Blood and Honor].”Footnote 64 One can imagine Hellmann acting with a sense of controlled agitation, striking a serious pose for a strange request.
Not surprisingly, Hitler did not comply with Hellmann's subpoena or send a surrogate. One reason, though doubtless a minor one, was that Hitler did not learn about the case until late March 1938. When he did see a newspaper report, he summoned Justice Minister Franz Gürtner to Linz. Once briefed on events, Hitler allowed the case to continue to wind its way through officialdom.Footnote 65 Various officials had already seemed intent on outdoing each other anyway. Hellmann had been arrested and taken into custody on January 6, 1938.Footnote 66 At the main proceedings on January 15, Hellmann claimed that he had expected the Führer to appear, did not renew his subpoena when he did not, and explained that he had intended not to offend but to show deference. The court, unimpressed, convicted him.Footnote 67 Its reasoning was straightforward. He had done precisely what the Law on German Blood and Honor prohibited: he had employed an Aryan woman younger than forty-five years old in a Jewish household, and that prohibition included her carrying out “any type of daily housework connected with the household, however minor.”Footnote 68
At first glance, the outcome for Hellmann was not bad. The court sentenced him to only two months’ imprisonment, with credit for time served.Footnote 69 But Hellmann could not have been measuring matters by custody time. He appealed.Footnote 70 Even if he had not, his defense style had rubbed judges and prosecutors the wrong way. It occasioned two more proceedings. First, the trial judge made a referral to the special court (Sondergericht) of Freiberg in Saxony to prosecute Hellmann under section 2 of the Law against Treacherous Attacks on the State and Party, alleging that he had attacked the Führer by having directed the bailiff to serve Hitler with a subpoena.Footnote 71 The prosecutor ordered a mental health examination.Footnote 72 The psychiatrist, a senior medical officer named Dr. Dietz, concluded that Hellmann was sick enough to be a nonconformist but healthy enough to be criminally culpable. While not a fanatic psychopath, he had a “pathologically enhanced belief in his own person,” possessed “an unshakeable belief in the rightness of his own illusions,” disregarded “prevailing ethical norms of respect [and] of justice,” was incorrigible, and engaged in conduct “understandable in light of this deviant psychic structure.”Footnote 73 On September 16, 1938, the special court convicted Hellmann of treachery and sentenced him to one year in prison, with a partial credit of six months for some of his time in custody.Footnote 74
The second set of follow-up proceedings came at the urging of Hitler's Reich Chancellery and then of the Ministry of Justice. The prosecutor in Dresden brought charges against Hellmann before the disciplinary panel of Dresden's bar association in order to ban the still-imprisoned man from court appearances immediately, and ultimately, once the prosecution for treachery was over, to disbar him.Footnote 75 The disciplinary complaint accused Hellmann of violating “his obligation as an attorney to carry out his profession conscientiously according to his oath and also to prove himself worthy outside his professional activities of the trust and respect that his profession requires of a servant of the law [Diener am Recht].”Footnote 76 On May 28, 1938, the disciplinary panel granted the prosecutor's application to ban Hellmann from appearing in court.Footnote 77 On November 30, the Nazis disbarred him. But the basis for his disbarment was his status as a Jew, not his attempts to subpoena Hitler. The Reich Citizenship Law, Fifth Supplementary Decree of September 27, 1938, had banned all Jews from practicing law. With the disbarment issue now moot, the disciplinary panel of the bar association terminated proceedings on December 12, 1938, but, leaving no stone unturned, also imposed all costs on Hellmann.Footnote 78
Hellmann withdrew his earlier appeal of the original judgment of January 15, 1938, in December.Footnote 79 After he had served his sentence, he was taken to the Dachau concentration camp; on September 27, 1939, he was transferred with two thousand other inmates to the Buchenwald concentration camp; and in less than three weeks, on October 13, he died. According to the official account, the cause of death was the deterioration of his heart muscles and pulmonary edema.Footnote 80
With respect to a general history of Nazi Germany, the unknown scribes who recorded Hellmann's internment at Buchenwald and his death there provided evidence that a lawyer might describe as cumulative—i.e., superfluous details that reconfirmed an already established point. In Nazi Germany, the Gestapo did not hesitate to bypass the legal process and seize people who faced no criminal charges, or had been acquitted in court, or had served their prison terms.Footnote 81 Throwing Hellmann into a concentration camp was one among many examples of Nazi authorities ignoring the legal system in their exercise of arbitrary, repressive, and lawless power. As a lawyer, Hellmann may have had a foreboding that Nazi authorities ultimately would yank him out of the legal system. But what was his intent and goal while still acting within that system and presenting his defense?
Max Hellmann's Method of Commenting on Nazi Law
For determining Hellmann's intent and goal, a preliminary question is what motivated him. His personnel file at the Ministry of Justice does not contain enough information to yield a clear answer. He may have been grieving his wife's death. But the file contains no direct information about his grief or its possible relationship to his later acts. He may have lost his mental equilibrium. But the file lacks the type of personal information that would expose his real state of mind. Even the psychiatric report, according to the available summaries, simply reflected Nazi morality, not medical diagnosis, and at best suggested what is clear enough, namely, that Hellmann's behavior was grandiose. He may have expected publicity in proceedings that probably would be open to the public.Footnote 82 But, while prosecutors and the special court in Freiberg reproached him for having known that his actions would draw attention, nothing shows that he actively sought publicity.Footnote 83 In fact, the Nazis controlled the press, and Hellmann restricted himself to court submissions.
Any evidence about the possible roles of grief, mental illness, and publicity would probably not help much anyway. Even assuming that his wife's death had left him grief stricken, not to mention more isolated than ever and more exposed to the Nuremberg Laws without the protection of marriage to an Aryan, Hellmann's court submissions did not address his grief. Even assuming that Hellmann had acted somewhat crazed, any possible psychiatric condition was not so severe that he spouted only nonsense. And even assuming that Hellmann wanted publicity outside the courtroom, he still adhered to the procedures necessary for addressing his immediate audience of prosecutors and judges. None of these three assumptions makes sense of what Hellmann did.
Grief, mental illness, and publicity aside, Hellmann's acts, based on the evidence that does exist, show something else: his method. In litigating his case, Hellmann was presenting a satire. Taken as a whole, his defense resembled a work of art that “uses humour, irony, exaggeration, or ridicule to expose and criticize prevailing immorality or foolishness, esp[ecially] as a form of social or political commentary.”Footnote 84 Hellmann had already sketched out an inchoate satire in February 1936 in his letter to Hitler, which blended feelings of frustration with a sense for the absurd. But the tone of that letter suggests that Hellmann was confused about his goals, still maintained a glimmer of hope, and was not yet ready to let go of a desperate wish to belong. By the autumn of 1937, Hellmann seems to have abandoned all hope. At that moment he could, and did, engage the Nazi legal system in all its absurdity. In a world turned upside down, he turned the tables and lampooned Nazi law. Utterly helpless, he pretended that he was terribly powerful through his use of satirical flair.
Some Nazi players seem to have verged on grasping Hellmann's satire, but the pressures toward conformity kept pushing them into Nazi platitudes. They caught the sting of Hellmann's style but reduced it to Jewish impudence.Footnote 85 They thought that he mocked Hitler but could not bring themselves to acknowledge the humor. One prosecutor wrote that Hellmann's contention that “popular sentiment was only a construct created by the Führer” arose from his “joy in denigrating what others think serious and meaningful.”Footnote 86 In its decision, the special court in Freiberg wrote that Hellmann had known that the very thought of Hitler appearing as a witness in court for a Jew charged with violating the Law on German Blood and Honor “was pure lunacy,” but that “it tickled his fancy as a Jew to use the cover of law for … putting … the Führer, of all people, … into a degrading and ludicrous situation.”Footnote 87 Hellmann intended his hateful writings to make the Führer a “laughingstock.”Footnote 88
What the Nazis missed was that Hellmann's impudent mockery targeted not only Hitler as a person but also the Führer as a legal concept—the very essence of Nazi legal doctrine. In his satire, Hellmann mocked, and thereby critiqued, the leadership principle (Führerprinzip)—the idea of law as the Führer's will.Footnote 89 Hellmann captured the essence of the Nazi legal dilemma when he imagined Hitler's testimony: “‘If someone,’ as the Führer will then testify further, ‘asks me why I do not take remedial action, my response is that I cannot be present everywhere and cannot know everything.’”Footnote 90 But being everywhere and knowing everything were the necessary characteristics of the Führer as supreme judge, at least if his supreme authority in theory equated with his ultimate authority in practice, i.e., an authority that became manifest only through direct expression in every concrete case. Hellmann's implicit question was this: how could the Führer's supreme and ultimate authority work as a practical matter, in the real world, in a criminal justice system involving actual cases?
Hellmann struck a raw nerve in Nazi legal doctrine because Nazi legal theorists had left this nerve exposed. They could not explain the relationship between the Führer's authority—supreme and ultimate, omnipresent and omniscient, unrestricted and boundless—and its implementation. All they offered was rhetoric, rhetoric with an empty core, which would have been readily apparent to anyone who cared to test its premises.Footnote 91 In creating a grand legal fiction, they made it a target for satire—if anyone dared. Hellmann did dare, and he fought fiction with fiction.
Max Hellmann's Commentary on Nazi Law
In one technique for holding together his satire, Hellmann contrasted the leadership principle with procedural regularity, often quickly shifting back and forth from one to the other. Nazi legal theorists admitted, and boasted, that a fundamental irrationality lay at the heart of the leadership principle.Footnote 92 Hellmann showed that it was also incoherent. He did so by trying to entangle it in legal procedures. These procedures may have been technical, but they were necessary because procedures are inherent to any legal proceeding. The most important example was Hellmann's repeated efforts to subpoena Hitler. In his dogged persistence, Hellmann took full advantage of the German Code of Criminal Procedure. He answered every defeat with a new procedural move backed up with new legal arguments. He could take advantage of the fact that the Nazi state continued to use legal terminology.Footnote 93 One prosecutor caught on to his approach and condemned it with disdain: “The deliberate and intentional use of formal law in the details of this subpoena reveals the further intent to harm the Führer, by which the joy of the vulgar motivated the act.”Footnote 94
Hellmann's submissions in support of subpoenaing Hitler included two other attempts to entangle the leadership principle in legal procedure. In one, he noted that he was duty bound “to offer the witness [Hitler] … the legally prescribed compensation for travel costs,” although he “personally … assumed that the witness would not make use of this monetary entitlement.”Footnote 95 In the other, he noted that when Hitler arrived in court, he should ask the court officer at the building entrance “for the room number for the proceedings.”Footnote 96 The very triviality of these procedural points left no doubt as to their absurdity. Hellmann mocked the great leader by subjecting him to petty rules.
In subjecting Hitler to formal procedural moves, both large and small, Hellmann showed their futility. He insisted on applying procedures in a context that made everything appear harebrained to show that the Nazi leadership principle was absurd, too. Furthermore, he contrasted these technical courtroom procedures with grander political structures, such as the separation of powers, the role of judges, the legislative process, and the nature of law itself, showing that the leadership principle mangled each one.
Nazi legal doctrine proudly eliminated the separation of powers, and Hellmann seized upon this development to mock the leadership principle.Footnote 97 The Führer alone held ultimate power, not only executive power but also legislative and judicial power. Hellmann implied that this arrangement created predicaments. If the Führer was the supreme legislator who alone could create laws, how could laws be unclear? If the Führer was the one and only source of law, what was the point of consulting anyone else? Hellmann expressed doubts about Hitler's supreme legislative power when he invited Hitler to correct a flawed law, fill in a statutory gap, and pronounce a new provision. Similarly, if the Führer was the supreme judge who alone could interpret laws, how could laws need outside interpretation? If laws required interpretation, how could anyone but the Führer know what he intended? Hellmann expressed doubts about Hitler's supreme judicial power when he asked Hitler to say at least what this particular law meant, writing, for example: “The Führer is, as he will further testify as a witness in the main proceedings, an enemy of all quibbling—which we jurists call interpretation—that only creates arbitrary opinions.”Footnote 98 For anyone trying to understand Nazi legal doctrine, Hellmann challenged the notion that Hitler's personal will held together a legal system that lacked any separation of powers. Nazi legal theorists retreated to mystical incantations and expressions of fervent devotion rather than face the types of questions that Hellmann raised.Footnote 99
In Hellmann's rendition, the leadership principle was farcical not only in overriding the separation of powers but also in belittling the role of judges. The issue was ripe for satire in light of the stark contrast between Hitler's claim to be the supreme judge and his contempt for real judges.Footnote 100 Hellmann raised the question of how judges could function if they lost their former bearings in explicit statutory law. What now counted was Hitler's unfathomable, irrational will. Only Hitler himself could access and express his own irrationality. The judges perforce lost their role as legal interpreters.
Hellmann hinted that the diminished role of judges was part of a wider attack on the German bureaucracy. German jurists prided themselves on a bureaucracy that was a creature of law. Bureaucrats carried out coherent laws, while those very laws confined the activities of those very bureaucrats.Footnote 101 The Nazi transformation of law into Hitler's arbitrary will rendered the maintenance of such a law-bound bureaucracy precarious in practice and impossible in theory. In the words of one Nazi jurist, “only the Führer and nobody else insures that the state remains, and will remain, true to its tasks, especially in a time of transition, in which a bureaucracy trained in National Socialism is still lacking.”Footnote 102 These circumstances illuminate Hellmann's view: the notion of sending a jurist—a bureaucrat, a civil servant—to his trial in Hitler's stead was nonsense. Hellmann was presenting clashing visions of a fastidious proceduralism, on the one hand, and law without a bureaucracy, on the other.Footnote 103
Legislation also provided a vantage point from which Hellmann could mock the leadership principle.Footnote 104 He tackled that issue by looking at not only the creation of laws but also their amendment. Hellmann implied that the problem of amending laws arose under the new Nazi regime as much as under the earlier parliamentary one. A context for his point was a long-standing conundrum about legislating and judging that had come to the fore at the turn of the century. Some jurists had asked how judges, who are strictly bound by the law, could decide cases that fell into statutory “gaps”? In other words, how could judges decide cases that the relevant statutes did not cover—i.e., when statutes failed to anticipate unique circumstances posed in a later case? Jurists debated solutions. The school of so-called interest jurisprudence maintained that judges must construe laws according to the social and economic purposes that lawmakers originally intended to achieve. The “free law” movement, which questioned whether laws could exist without gaps, contended that judges must arrive at decisions by reaching beyond laws and resorting to their own discretion based on extralegal factors, such as ethics or sociology.Footnote 105 In a stirring challenge in 1906, the young, iconoclastic, left-liberal Hermann Kantorowicz argued that the resolution of some legal cases was utterly subjective, involved the justification of results rather than logical reasoning, and derived from the exercise of will rather than a reliance on understanding.Footnote 106 In emphasizing irrational will, this approach—when trivialized, bastardized, and politicized—bears some resemblance to the Nazi leadership principle.
Hellmann recognized what the Nazi solution to the problem of legal gaps had to be: Hitler, supreme legislator and judge alike, must personally fill in the statutory gap. In his own case, Hellmann wanted Hitler to insert another sentence into the Law on German Blood and Honor. The inanity was that Hellman's proposed addition reached a level of specificity that nobody could have anticipated in the past and nobody could incorporate into designs for the future. Rolling out such amendments would be never-ending. Hellmann, whether intentionally or inadvertently, nailed down his point with a proposal that was not only more than twice as long as the original provision but also concluded with the word “etc.” As already noted, Hellmann had proposed the following language: “A Jew is also liable if, with his consent, the woman occupies herself for herself, for her own household, or for a third person, as, for example, cooking for herself, for her own household; mending her own clothes for herself; doing needlework for herself, etc.”Footnote 107 The sentence moved from an implausible specificity to the vaguest generality, expressed in the word etc. Hellmann's impudence, and his insult, lay in suggesting that Hitler, as supreme legislator, would ultimately have to resort to modifying legislation, tinkering with laws, and undertaking acts of legal reform, just as parliamentary regimes had to do—and with no better results.
Hellmann mocked the leadership principle not only from the vantage points of the separation of powers, the role of judges, and the legislative process but also from the perspective of the nature of law itself. The leadership principle obscured the very nature of what a law is, sacrificing all legal forms on the altar of Hitler's words—as uttered in any setting. What, Hellmann wondered, distinguished Hitler in his particular role as the supreme lawgiver from Hitler as a speaker in general? Hellman's claim, after all, originated in what he remembered hearing Hitler say on the radio. Why should Hitler's radio speeches not count as law when Hitler's position as lawgiver was so supreme that legal forms did not constrain him? Yet, in another interplay between vagueness and specificity, Hellmann anchored this point in a request for the publication of his proposed amendment in the Reich Law Gazette—a vestige of the liberal demand for public laws.Footnote 108
In short, Hellmann showed through mockery what Nazi jurists described as new legal theory. The boundaries separating statutes, regulations, decrees, orders, and legal commentaries blurred as legal formalities lost significance.Footnote 109 In fact, legal formalities seemed to disappear in the light of the Nazi leadership principle. One of the essential features of the leadership principle, in the words of the postwar legal scholar Diemut Majer, was “its vague and limitless character,” which rendered “any legal restriction upon the authority of the Führer” impossible and any of his expressions, even incidental statements, binding law regardless of statutory forms.Footnote 110
Hellmann did not limit his satire to illuminating the absurdity of the leadership principle by contrasting it with technical courtroom procedures and larger political structures, such as the separation of powers, the role of judges, the legislative process, and the nature of law itself. He also looked directly at the notion of the Führer. With a touch of grandiosity, Hellmann probed the claims of the Führer's omnipotence. The leadership principle, in Hellmann's view, could set no constraints on Hitler's power—which burst the bounds of geographical space and chronological time.Footnote 111
By raising the notion that geographical space did not limit Hitler, Hellmann made clear that he grasped the nature of Nazi legal ideology. He arrived at this geographical notion in the course of making a technical legal point. He argued that Hitler had to respond to Hellmann's subpoena by appearing in court since Hitler could not benefit from the exception, in section 49 of the Code of Criminal Procedure, allowing him to give testimony from his home. Hellmann reasoned that section 49—a statutory product from the detested days of the Weimar Republic—applied to the Reich president but not to the Führer. He explained that the Reich president presided over “the geographical area of the German Reich,” but that the Führer led a people (Volk) regardless of where they lived. By his very nature, the Führer created unity not over an area but in spiritual solidarity with his people.Footnote 112 Hellmann was right insofar as, upon the death in August 1934 of President Paul von Hindenburg, a Nazi law abolished the title of Reich president.Footnote 113 Hellmann also understood that Nazi legal thought viewed Hitler less as the head of a territorial state than as the leader of a dispersed “racial” group.Footnote 114 Thus, for example, section 1.1 of the Law on German Blood and Honor forbade Aryans and Jews from marrying even outside the territory of the German state.Footnote 115 Nazi claims of legal authority beyond Germany's territorial state were large and slippery, but Hellmann took hold of them to advance a clever interpretation of concrete statutory provisions. In his special role without geographical confines, the Führer fell outside the exception for the Reich president in section 49 and was thus subject to the general subpoena provision in section 220.
The past limited Hitler as little as geography. Hellmann ended his subpoena by declaring that he would accept Hitler's amendment of the Law on German Blood and Honor even if Hitler applied it retroactively. For many lawyers, this concession would have been jarring. For one thing, the Law on German Blood and Honor itself was not retroactive.Footnote 116 For another thing, retroactivity offends the notion of fair laws. With retroactive laws, rulers can criminalize innocent conduct after the fact and target whomever they wish, and people can never know whether they are obeying the law or committing a crime.Footnote 117 Long before Hellmann's case, the Nazi regime had dramatically abandoned the fundamental ban against retroactivity, first by imposing the death penalty for arson after the Reichstag fire of February 27, 1933, and then by legitimating the regime's murder of political opponents during the Röhm purge on June 30 and July 1, 1934.Footnote 118 With his acceptance of a retroactive amendment, Hellmann was conceding that Hitler could change the legal consequences of past behavior. Hellmann seemed to be saying: just give me a law, any law, even a law that will convict me despite its failure to have served as a guide for my past conduct. A new law might, at least, provide grounds for my future punishment. A new law would, at least, be an improvement over divining the meaning of what Hitler had said over the radio.
Hitler may have defied, at least as a matter of legal doctrine, the limits set by geography and the past, but Hellmann had already shown that bombastic doctrine stumbled on real world limits. Restating his points in terms of time, he showed that the Führer could not control the future. Hitler, as supreme legislator, could not draw up laws detailed enough to cover the full range of future events and, as supreme judge, could not rush around fast enough to get to all cases needing his decision. But Hellmann also issued a warning, at once more direct and ominous: Hitler should worry about his own future. The warning was implicit in Hellmann's motion to take Hitler into custody. This motion was preposterous, of course, even more preposterous than the attempt to subpoena him. Subpoenaing Hitler treated him as though he were an ordinary witness; moving to detain him subjected him to a newfangled legal argument, namely, that the judge might still dream up more questions. Both attempts were absurd—but there was method in the madness. Detaining Hitler was as irrational as protective custody: one of the regime's justifications for its lawless arrests and use of concentration camps.Footnote 119 Hellmann transformed the arbitrary arrests of the regime's political opponents into the trivial arrest of its political leader. His message, even if oblique, was that protective custody was so irrational that it might even ensnare the Führer himself—not an impossibility in the rough-and-tumble world of arbitrary dictators.
As a matter of immediate risk assessment, of course, the man who faced imminent danger was not Hitler, but Hellmann. Another Jewish lawyer, explaining his emigration in early October 1935, described the precarious situation that non-Aryans faced in the wake of the Nuremberg Laws: “One is handed over to the discretion of an almighty lawmaker, who is possessed by a blind hatred for Jews and who finds the mere presence of a Jew on German land a provocation.”Footnote 120
Max Hellmann's Commentary on the Nuremberg Laws
Hellmann aimed his satire not only at Nazi legal doctrine in general but also at the Nuremberg Laws in particular. In his letter to Hitler in February 1936, he could not reconcile himself to his classification under the Reich Citizenship Law as a Jew. But in late 1937 and in 1938 he accepted his status with little further ado. He had written matter-of-factly in his subpoena that “it is not in dispute that [I am] a Jew under the law.”Footnote 121 And in his personal letter to Hitler, he had written: “I am a non-Aryan Christian, under the law a full Jew.”Footnote 122 By Nazi racial categorizations, Hellmann's conversion to Christianity made no difference.Footnote 123
With demeaned social standing under Nazi rule and compromised legal rights under Nazi legislation, including the Nuremberg Laws, Jews faced a dilemma: what stance should they take toward the nation, the state, and Nazi leadership? For Christian non-Aryans—or, as Hellmann preferred to put it, for a non-Aryan Christian—the problem was even more acute, for they lacked support from the Jewish community. Whereas in early 1936 Hellmann had used legal reasoning to invent a new salutation—“Heil Germany and its Führer!”—in late 1937 he became more assertive. He would, like everyone else, address Hitler as “Mein Führer.” Why not? If the governing concept was the Führer's will, then the proper form of address must be personal. If the Führer was the supreme political leader, then he deserved deference regardless of race. The underlying logic was that Jews were like Aryans insofar as all were subordinate to Hitler. Even a Jew, like Hellmann, could consider Hitler the Führer.
Hellmann addressing Hitler as “Mein Führer”—an acknowledgment of subordination, almost a declaration of loyalty—hid another jest: a relationship of subordination and leadership constitutes a dependency, but a mutual dependency. Had his motion been granted, Hellmann would have maneuvered Hitler himself into a position of dependency, too. Similarly, in anticipating the excitement that would accompany Hitler showing up in court, Hellmann delighted in thinking that everyone would recognize that he was the one who had procured Hitler's appearance.Footnote 124 More important, Hellmann was staging not only a contest of wills but also a merger of wills. In its decision, the special court in Freiberg noted, with disgust, that Hellmann insisted in his subpoena that Hitler remain in custody in order to make the point “that he, as a Jew, can and will force his will against the Führer of the German people based on procedural rules.”Footnote 125 But Hellmann had made a more subtle point that eluded the special court's grasp. In urging Hitler to revise the Law on German Blood and Honor, Hellmann had proposed specific language. He would make a contribution to the creation of new law. In doing so, Hellmann, a Jew, would be helping to form Hitler's will.
Hellmann was engaging in satire by creating the fantastic image of himself, a Jew, inside the Nazi circle of the leader and his followers. But here Hellmann's satire was at its weakest. Nazi legal thought envisioned Jews not as subordinates but as outsiders, not as devotees but as enemies, not as people under Hitler's spell but as the “Other” subject to his control.Footnote 126 The Reich Citizenship Law illustrated these contrasts by privileging Aryans, who could take part in a new Nazified politics, and demonizing Jews, who could not. That law redrew the relationships between people and their governing entities. It distinguished two governing entities from each other: the functional state from the glorified Reich. And it distinguished between two types of relationships of people to these entities: subjects of the state and citizens of the Reich. These redrawn relationships implicitly distinguished between political Aryans and nonpolitical Jews. Loyal Aryans could become citizens of the glorified Reich and enjoy full political rights, whereas Jews remained subjects of the state and lost all political rights.Footnote 127 The nature of politicized Aryans and nonpolitical Jews turned on their relationship to the Reich's Führer, who embodied both law and politics. Aryans enjoyed their political rights in expressing loyalty to the Reich's Führer and accepting his will, whereas Jews could not. The bête noire of the politicized Führer was the depoliticized Jew. Hellmann was distraught in recognizing that, as a Jew, he had lost his legal status, his political essence, and his humanity.
Conclusion
The only way to make sense of Hellmann's legal defense is to view it as satire, for it was too lucid to be insane but too outlandish to be serious. Hellmann's factual argument that Dittrich had come to his kitchen to cook potatoes for herself was far-fetched. His legal arguments for subpoenaing Hitler, excluding any surrogates, and detaining him, were bizarre. Hellmann was using the ridiculous to sharpen his ridicule.
Hellmann's legal troubles are historically significant not because they made a difference at the time but because they yielded an insightful contemporary commentary on Nazi law. That commentary gives rise to two related questions: First, why did it take the form of a satire within a legal proceeding? Second, was the satire political? The answer to the first question is partly obvious. Prosecuted for a crime, Hellmann put on a defense. He used his skills as a lawyer in a forum that he knew: the courts. The reason he defended himself so eccentrically is unknowable, partly because the sources are too spotty. But his isolation and despair may have loosened his inhibitions, and he may have also sensed an opportunity. Satire was a fading art form in Germany in the mid-1930s. In repressing dissent in general, the Nazi regime forced out of the country the satirists of the Weimar Republic, from journalists like Kurt Tucholsky to playwrights like Bertolt Brecht, and closed down their venues, from hard-hitting journals to irreverent cabarets. The regime tried to replace Weimar satires with a new form of Nazi satire, but by 1937 the attempt was largely failing.Footnote 128 With the disappearance of the lively Weimar satirists, nobody expected the role to fall to a lawyer such as Hellmann. With the disappearance of the venues of Weimar satire, nobody expected its relocation to a courtroom. Hellmann could develop his satire there precisely because, in a place characterized by tradition and decorum, he took everyone off guard. The prosecutors and judges acted as his straight men, responding to his submissions in the only way they could: according to legal procedure, not as a literary form.
Importing satire into the courtroom, Hellmann used it like a contrarian. He embraced the very aspects of satire that made others shudder. According to Patrick Merziger, many Germans loyal to the regime nonetheless disliked Nazi-sponsored satire. They grasped that satire targets someone for ridicule and imaginative destruction. When Nazi satire targeted someone, the imaginative destruction felt all too real and signified exclusion from the German racial community (Volksgemeinschaft). It constituted a form of social death. Such social death was no laughing matter. Wanting to belong, loyal Germans found little humor in joking about exclusion.Footnote 129 But unlike such loyal Germans, Hellmann had no reason to sidestep satire since he was already an outcast experiencing social death.Footnote 130 His fear of exclusion became irrelevant once his exclusion had become irreversible. During his prosecution, then, Hellmann could employ the magical thinking of the satirist and fantasize about his own empowerment. He could demand not only Hitler's presence but also his imprisonment, which was the virtual equivalent of the leader's ouster—the ultimate exclusion.
With these thoughts about what enabled Hellmann to choose satire and use it in legal proceedings, we can turn to the second question of whether his satire was political. In light of scarce historical evidence and the resulting fluid boundary between interpretation and speculation, an answer to the question invites circular reasoning: providing an answer that assumes what the answer is. One way around this methodological dilemma is to address two related issues at the same time: whether or not Hellmann's satire was political and, if so, in what ways.
An entrée for considering the nature and extent of the political in Hellmann's satire is his biography, which renders it unlikely that he would have acted politically. Nazi authorities realized that he had neither a political past nor political connections nor prior membership in a political party.Footnote 131 In describing Hellmann's politics, the special court in Freiberg mentioned only that he had followed political developments, had read Hitler's book, and was informed about the role of the Führer in the German Reich.Footnote 132 “No circumstances were present,” that court wrote, “for concluding that the defendant tends toward other nasty political transgressions.”Footnote 133 His personnel file noted that, although he was of “unclear character,” he was “apparently politically reliable”; one prosecutor mentioned that he seemed temperamentally simply like a German nationalist.Footnote 134
The problem with relying on Hellmann's nonpolitical past is that it kicks the can down the road. The question shifts from whether he was political to whether he was ever politicized. A regime that made everything political pressured everyone to be politicized. Most Germans could take the easy path toward political conformity. But however desperately Hellmann wished to conform and however hard he tried—his letter to Hitler in February 1936 makes the wish and the efforts clear enough—Nazi laws, ideology, and social pressures blocked his way. Not allowed to conform, Hellmann responded iconoclastically. But to deem his iconoclasm political risks returning to the original assumption, namely, that iconoclasm must have reflected politics because any action in Nazi Germany must have been political.
One way to address whether Hellmann acted politically is to compare his personal transformation, which his legal defense in 1937 surely reflected, with the politicization of others under the Nazi regime. The history of the German anti-Nazi resistance contains other stories of conservatives who suddenly noticed the horrors around them, turned against the regime, and staked their lives on that decision.Footnote 135 Hellmann may have experienced a similar radicalization. He must have known that arguing to subpoena and imprison Hitler posed a risk to his own life. Yet Hellmann stuck to his defense through a series of submissions and, once convicted, dug in his heels by filing an appeal. Hellmann's acts nevertheless differed significantly from those of German anti-Nazi resisters. They had contact with others resisters; he did not. They worked within a semblance of an organization; he did not.
Hellmann's isolation limited the possibilities of his political action and even of his political consciousness. Unlike other resisters, he could not draw on the group spirit or ethos of a traditional institution, such as the army for Colonel Claus von Stauffenberg of the July 20, 1944, plot on Hitler's life; the Confessing Church for the theologian Dietrich Bonhoeffer; or the Social Democratic Party, the Communist Party, or Jewish community organizations for other anti-Nazis. In fact, Hellmann could not seek contacts, let alone solace, from almost any institution since converted Jews found little welcome in either Christian churches or the Jewish community.Footnote 136 Bar associations were no better since they had excluded Jews back in the spring of 1933.Footnote 137 In addition, Hellmann was choked off from basic human contacts—probably without many clients, who knew better than to hire a Jewish lawyer; without his wife, who had recently died; and without a cook and housekeeper, who testified against him. The ideals of institutions and the camaraderie of fellow dissenters (and of family, friends, neighbors, and associates) can stimulate political thinking. Not surprisingly, Hellmann, starved of both institutional support and human contacts, failed to develop a political vision or set political goals.
Hellmann lacked not only institutional support and human contacts but also political motivation. Never condemning the Nuremberg Laws as discriminatory or proclaiming an anti-Nazi principle, he may have been able to engage Nazi legal ideas precisely because he sympathized with Nazi sentiments and wanted to belong to the Nazified community. His ostracism drove him into a despair that reflected the dismay of the unwilling heretic and the claustrophobia of the captive. He taunted the Nazi legal system not because it trapped Jews but because he, as a Jew by law, felt trapped. He worried not about a shared fate but about his own.Footnote 138 He must have known that his legal motions would doom him. But once he had plunged into despair, he no longer needed to cower before the terror of the totalitarian state. He was ready for suicidal action, staging the collapse of his career, his professional life, and perhaps his physical life as well.Footnote 139
Even if Hellmann lacked a political vision and political goals and acted out of personal despair, there is one way in which his satire was surely political: he aimed at a political target—the Nazi legal system. Trained in a tradition of legal positivism, like all German lawyers of his day, he may have imagined that he had steered around Nazi politics and morality to strike the Nazified legal system—and nothing more. But under a regime that merged law into politics, a satire of the legal system necessarily attacked Nazi political thought. Furthermore, in a dictatorship based on a personality cult, in which Hitler brooked no published criticisms, Hellmann aimed directly at Hitler. Indeed, in demanding that Hitler forgo delegating duties to underlings, Hellmann wished to prevent Hitler from deflecting criticism, and he kept Hitler, and nobody else, squarely in his sights.Footnote 140 And in directing attention to Hitler's speeches over the new mass-communication media of the radio, Hellmann attacked the critical relationship between the leader (Führer) and the people (Volk).Footnote 141 Nazi authorities appreciated the political nature of Hellmann's acts. One official in the Justice Ministry wrote that Hellmann's subpoena of Hitler “constituted a saucy mockery of the Führer and, as a hateful malicious declaration against the person of the Führer, was aimed at burying the people's trust in the political leadership.”Footnote 142
Max Hellmann was a man who lived in such isolation that he could not form a political vision or imagine a political goal, who fell into a despair deep enough to loosen the basic discreetness needed for survival, who could act as he wished in the present because he had lost all hope for the future, and who let loose in the one realm he knew: legal practice. In satire, he stumbled upon a genre whose inherent limitations suited his plight. Satire deconstructs rather than constructs; it breaks down instead of builds up; it mocks incongruities without proposing alternatives. But it provides focus. Whatever Hellmann's conscious intent, his satire hit a political target. Unable to evade the Jewish question—confounded and desperate, helpless but persistent—he exposed the absurdity in Nazi legal thinking. What Nazi jurists took too seriously to critique, what Jewish leaders thought too obvious to mention, what defense lawyers thought too subversive to use, Max Hellmann expressed.
