How the Nazis Used the Rule of Law Against Jewish Lawyers
A new book on the persecution of Jewish lawyers under the Third Reich ably documents a dark history—but fails to acknowledge the complicity of the law.
“Abraham, Rudolf … 07/01/1901 Berlin - March 1943 Auschwitz”
“Haberland, Kurt Dr. … 10/17/1896 Berlin - 06/05/1942 Mauthausen”
“Landsberger, Egon Dr. … 02/18/1896 Berlin - 01/30/1941 Dachau”
And so on goes Lawyers Without Rights by Simone Ladwig-Winters. For 301 pages, it gives the names, birth dates, deaths, and what little else is known of 1,807 Jewish attorneys who belonged to the Berlin Bar Association in 1933. Not all of these lawyers were born in the German capital, nor were they all murdered in concentration camps, but they were all persecuted by the Nazis during the Third Reich. Taken together, Ladwig-Winters’ profiles have an overwhelming effect—not unlike the Memorial to the Murdered Jews of Europe in Berlin today, where visitors are subsumed by the sheer quantity of thousands of coffin-like concrete slabs.
Released in English for the first time by the American Bar Association (ABA), Lawyers Without Rights is a powerful work of history, commemorating Berlin’s Jewish attorneys while also describing how they were barred from their profession and, in most cases, driven from their city. Unfortunately, the tragedy of Lawyers Without Rights is not confined to history but permeates the ongoing idealization of “the rule of law.”
The book grew from the request of an Israeli attorney visiting Berlin half a century after the fall of the Third Reich. “The ‘rolling stone’ was a question from a lawyer from Tel Aviv, Joel Levi, who asked the regional bar of Berlin in 1995 for a list of Jewish lawyers who were excluded from the profession,” says Stephan Gocken, executive director of the German Federal Bar, which worked with the ABA to publish Lawyers Without Rights in English. With the aid of Ladwig-Winters, the Berlin Bar Association produced the first edition of the book, in German, in 1998.
Going far beyond the original request for a list of names, Ladwig-Winters has created a tribute to Berlin’s Jewish lawyers. The files of the Berlin Bar Association were destroyed during the Third Reich (“burnt,” according to the bar today), so its membership had to be recreated from judicial sources, trial dockets, bulletins, and other primary and secondary material. In this fashion, Ladwig-Winters was able to unearth the names of 1,807 of the estimated 1,835 Jewish members of the bar. She was additionally able determine the fates of 1,404 of these attorneys, half of whom emigrated and a fifth of whom were murdered.
Less heart-wrenching but perhaps more revealing than these individual tragedies is Ladwig-Winters’ chronicle of how these events came to pass. Following Hitler’s appointment as Chancellor in 1933 and the Nazis leading the elections that March, the government expelled all Jewish judges and barred all “non-Aryan” attorneys, save those admitted to the bar before 1914 and some veterans, or relatives of veterans, from World War I. These exceptions—which constituted two-thirds of Berlin’s Jewish lawyers, as many had served in World War I—were eradicated in 1935 when a new law restricted the “provision of legal advice” to Nazi party members and, ultimately, in 1938 when an ordinance banning Jews from practicing the law was passed.
Although the escalating persecution of Jewish attorneys was accompanied by anti-Semitic violence in the streets—most infamously, Kristallnacht in 1938—Ladwig-Winters makes it clear that the primary vehicle of their disbarment was not violent but legal. And because they were lawyers committed to the law, Jewish attorneys were put into an impossible position. As Ladwig-Winters writes of those who sought reinstatement in 1933 on grounds that they were WWI veterans: “All Jewish attorneys were to make an application for admission to the bar together with a statement of allegiance to the government. This trick put Jewish attorneys on the spot: if they insisted that this requirement was illegitimate and illegal and did not apply, they would no longer be able to practice law. If they made their declaration of allegiance, then they were indicating their acceptance of the legal situation.”
In other words, because the Nazis’ anti-Semitism had taken on a legal framework, there was little way to combat it on legal grounds.
The failure to fully acknowledge that reality is the second tragedy of Lawyers Without Rights. Ladwig-Winters’ history and her profiles of Berlin’s Jewish attorneys are preceded by a number of prefaces, including joint introductions by the ABA and the German Federal Bar, as well as forwards by U.S. Supreme Court Associate Justice Stephen G. Breyer and Nuremberg trial chief prosecutor Benjamin B. Ferencz. But while these writings excoriate the Nazis for perverting the rule of law, they fail to acknowledge how such idealization of the law actually facilitated the demise of Berlin's Jewish attorneys. The writers alternatively praise Lawyers Without Rights as a means “to better understand and appreciate the meaning of ‘the rule of law’” and then wonder why “the Berlin Bar apparently passively acquiesced to the systematic exclusion of their Jewish colleagues.” These lawyers fail to recognize that, if we confine ourselves to the rule of law, it is nothing more than a straitjacket.
Nowhere do these introductory chapters acknowledge the tension between legality and justice, yet that tension appears even within these writings. Associate Justice Breyer approvingly writes of the trial of Adolf Eichmann in Jerusalem in 1961, but fails to acknowledge that Eichmann was brought to court after being—according to international law—illegally kidnapped by Israeli intelligence agents in Argentina. In another instance, Nuremberg prosecutor Ferencz writes that “the scales of justice could never be balanced by hanging,” yet omits that half of his defendants were indeed sentenced to death. None of this is meant to muster sympathy for Nazis, but to underscore that the rule of law and our own definitions of justice can be at odds; deferring absolutely to the rule of law only means that legal injustices, such as the persecution of Berlin’s Jewish lawyers, occur without resistance.
The failure of the ABA to grasp this issue appears to extend from history up to our present moment. When asked by The Daily Beast about how the rule of law can facilitate injustice, ABA President Bob Carlson criticizes the silence of gentile lawyers during the Third Reich. He then favorably quotes former Attorney General Jeff Sessions—the man who defended the violent separation of undocumented parents and children, who created a task force to further homophobia, who cheered the imprisonment of political opponents —about how “a justice system should be free of improper influences based on political considerations.”
Ultimately, Lawyers Without Rights is an eye-opening history, chronicling how persecution becomes entrenched in so-called civil society. Unfortunately, even its publisher has not yet learned the lessons that it has to teach.