Is there more to say about the postwar prosecution of Nazis? The last decade has seen an explosion in research on the subject. The answer, happily, is yes. Nazi Crimes and the Law is a valuable addition to the lively discourse on postwar Nazi trials and presents some fascinating new insights and debates about the possibility of justice after crimes of such unspeakable magnitude.

The volume includes an introduction and articles by Gerhard Weinberg on the immense value and untapped potential of the historical record created by Nazi trials, Elizabeth White on the U.S. Office of Special Investigations, and Christopher Browning on his role as an expert witness at trials involving Holocaust denial; but it is chiefly concerned with the prosecution of Nazi crimes in Germany. Henry Friedlander's piece, “Nazi Crimes and the German Law,” elucidates the ways that Nazi jurists legalized—or at least formalized—horrific persecutory measures, making them palatable to the public and in turn difficult to prosecute after 1945. Unbelievable legal solutions were applied to difficult problems. For example, to legalize the theft of Jewish property, a law was passed allowing the confiscation of Jewish property if Jews had “taken up residence outside the borders of the German Reich”—which often meant expulsion. What is illuminating here is both how important public opinion was for the smooth functioning of the state, and how crucial the passing of these laws became for postwar claims by defendants (and many judges and lawyers) that the Nazi state had been a Rechtstaat all along.

Two articles in particular question why there was such leniency in the prosecution of Nazi bureaucrats, jurists, Einsatzgruppen members, and anyone who did not show excessively cruel behavior. Michael Bryant's piece examines early U.S. army trials, and Joachim Perels looks at those conducted by the West Germans; both are consumed with this fundamental question, and both come to vastly different conclusions. Bryant's contribution raises the question, why did the Americans pursue the charge of sadism? Was it not the intent of the Americans to show the criminality of the entire Nazi project? One reason was that it was simply easier to convict proven sadists. Bryant is equally interested in the influence these trials exerted on the West German mentality toward Nazi crime; and although he argues that the influence was great (evidence would be helpful here), he ultimately believes that “the reason Adenauer and many others tended to exonerate the professional, bureaucratized killer may have more to do with deep structures of historical change than with idiosyncratic values,” such that “in the historical transition to modernity, the ‘organization man’ emerged as the ideal of bourgeois instrumental rationality” (p. 83).

West German responses are also the subject of Joachim Perels's brilliant piece on the role of the judiciary in shaping public perceptions of Nazi crime. The vast majority of postwar judges had been members of the Nazi party and lawmakers under the regime. This continuity also existed in their mentality toward Nazi crimes: in the 1950s, the Bundesgerichtshof (BGH) sought to demonstrate that most legal decisions made during the Nazi period were valid. In a 1956 acquittal of a judge, for example, the BGH's verdict read that “it is important to keep in mind how his task appears in the light of … the mercilessness of the laws at that time” and so, according to Perels, “The BGH regarded National Socialist norms as absolutely valid … (and) ‘normalized’ the Nazi regime by regarding it as a state like others” (p. 93).

Dick De Mildt's chapter on the Max Täubner case provides more insight into the lingering notion among postwar German jurists that Nazi persecutory policies were unimpeachable. In May 1943, the Supreme SS and Police Court I in Munich prosecuted Max Täubner, SS Untersturmführer, for the killing of hundreds of Jews. Why on earth would this be? He had carried out these murders without authorization from above, in a sadistic manner. He was, in fact, not on trial for the killing of Jews per say, as the judgment concluded that they “must be exterminated” anyway. But his brutality was; the judges called it “unworthy of a German man and SS officer” (p. 104). The SS judge never actually declared the killing of innocent Jews legal (as murder remained illegal according to the German penal code), but worked around this by calling it “necessary.” Täubner could not be tried again in the FRG because the judgment of the SS courts in 1943 was still considered binding, resulting in double jeopardy. De Mildt's chapter nicely complements Perels's piece, demonstrating the continuity that Perels described: Munich SS Court president Günther Reinecke wrote the verdict in the 1943 Täubner case. He was denazified, cleared, and then became a lawyer in Bavaria. His license was revoked in the 1970s when his ruling on the Täubner case became public because of his proclamation that the extermination of the Jews was necessary. Reinecke defended himself by saying he had to use that language to justify the very harsh sentence he gave Täubner, i.e., “it would have been worse if I hadn't done this.” Reinecke's defense was accepted and his license renewed.

The rest of the volume sheds light on other important Nazi trials and the generally dismal record of almost all of them: Nathan Stolzfus addresses the problem of the lingering myth of the clean Wehrmacht and shows that, to this day, there is reluctance to prosecute Wehrmacht crimes in Germany, even though Nazi judges are long gone from the system. Winfried Garscha, an expert on Austrian Vergangenheitsbewältigung, presents Austria's despicable post-1955 trial record, stating that “half a century of investigations of Nazi crimes by the Austrian Judiciary led to 35 trials against 48 defendants,” 23 of whom were acquitted (p. 142). He highlights a little-known progressive moment in postwar Austrian history, though, in his description of the Austrian people's courts which existed between 1945 and 1955: the tiny Austrian provisional government promulgated the Nazi prohibition act and the Kriegsverbrechergesetz and held trials against 28,000 defendants (13,600 of whom were convicted and sentenced) before the courts were abolished in 1955.

In her chapter on the German-German rivalry in prosecuting Nazi crimes from 1958 to 1965, Annette Weinke argues that there was a “constitutive relationship between the division of Germany into two states and the West German project of criminal prosecution as a means of addressing the Nazi past” (p. 155). She sees the creation of the Central Office for the Investigation of Nazi Crimes in 1958 as a direct result of East German smear tactics, including the publication of the notorious Braunbuch, which listed former Nazis living and working in West Germany. But regardless of the motives of the GDR, was this not ultimately a good outcome?

This volume is a success because it asks new questions and probes deeply into complex questions of “justice” for Nazi crimes. Ultimately all efforts at punishment for systematized state crime fell short, largely because of the failure to purge those responsible for these crimes from the post-Nazi state. Such a lesson is worth learning.