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Douglas Morris, "Legal Sabotage: Ernst Fraenkel in Hitler's Germany" (Cambridge UP, 2020)
01:03:35
Morris describes the ways in which Frankel stood up to the Nazis and what understandings he drew from that experience...
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Hello, everyone, and welcome back to New Books and Biography, a podcast channel on the New Books Network. I'm Mark Clovis, your host for the channel. Today I'm speaking with Douglas Morris, author of the book Legal Ernst Frankl in Hitler's Germany. Douglas, welcome to the New Books Network.
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Hi. I'm thrilled to be here. Thank you.
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C
And we're thrilled to have you on our show. I. I was wondering if you could start us off by telling our listeners something about yourself.
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Well, I'm both a criminal defense lawyer for indigent defendants and a independent legal historian. I work at Federal Defenders of New York, which is a private, nonprofit corporation set up to provide lawyers for people who can't afford their own lawyers in federal court. And I represent clients who have been charged with a variety of federal crimes, not state crimes, but crimes such as drug smuggling, fraud, immigration offenses, gun offenses, and occasionally a bank robber. I also had originally gone to graduate school at the University of Rochester, had left graduate school with everything done but my dissertation, when I essentially thought there were no jobs and went on to law school and worked at a law firm in New York City, Paul, Weiss, Rifkin, Warren and Garrison, and then went on to Federal Defenders. And while I was there, I never lost my love and interest in history and wrote what I first thought was going to be an article about Max Hirschberg, who was the leading criminal defense lawyer in Munich during the Weimar Republic between the end of World War I and the beginning of the Nazi era. I became interested in him because he had written about innocent defendants who had been convicted of crimes. I first thought I was going to write a comparison between miscarriages of justice in the United States and Germany. But the more I studied him, I realized that I had to deal with his whole career because he was the leading political lawyer in Munich during the Weimar Republic and also came upon this issue of non political miscarriages of justice. So that led to my first book entitled justice the Anti Nazi Lawyer Max Hirshberg in Weimar Germany. And it raises issues of the relationship between political justice and non political justice.
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C
What was it that led you to turn to Ernst Frankl? Was it a natural extension? Were you searching around for similar examples of attorneys who were practicing during this interwar period, or was this something that was proposed to you?
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Well, it did follow from my book on Max Hirschberg, because I then began to look at Jewish lawyers in Nazi Germany. The last chapter of my book on Hirshberg deals with his career in 1933, when he had been arrested and then released and ultimately got out of Germany. And I began to look at Jewish lawyers in Nazi Germany. And I first thought that I would write a book on Jewish lawyers in Nazi Germany. There are several books on that in German which all kind of follow the same framework of having long introductions that lead up to individual biographies. I thought there was room to write a more synthetic history of Jewish lawyers in Nazi Germany. And when I did that, I began to focus in on a limited number of particularly interesting Jewish lawyers. I had known about Ernst Frankl from his classic work the Dual State, which I'm sure we're going to talk about later. And I became intrigued by him. And what intrigued me was that Frankl is a very prominent figure in 20th century German intellectual history. There are many people who have studied what he did during the Weimar Republic, when he was a young rising star in the Social Democratic Party and in labor law and in Weimar constitutional law. He was law partners in the late 20s and early 30s with Franz Neumann, who wrote the classic Uruk behemoth about the Nazi political and economic system. So there are many people who had studied Frankl during the Weimar Republic. Similarly, there are many people who studied Ernst Frankl in the post war world when he ultimately went back to West Germany, taught at the Free University of Berlin and really helped to establish the field of political science in West Germany and in which he developed a theory of pluralistic democracy. And there was almost a conflict between these two sets of people. The people who liked Frankl and in the Weimar Republic liked in part his Marxism. The people who liked Frankl in the post war world liked him in part because he was no longer a Marxist. What struck me was that his most important work was the Dual State. And the least study of Frankl was what he did during the Nazi era. And what he did during the Nazi era was really quite remarkable. He stayed in Nazi Germany through September 20th of 1938. During that time he practiced law. He represented defendants, and not only any defendants, he represented political defendants. Sometimes he got acquittals in those cases. In addition to representing political defendants in court, he worked in the underground in various ways. He had contacts throughout the underground in Nazi Germany. And he wrote illegal articles, five major illegal articles that were published and distributed in an illegal journal in Nazi Germany. And furthermore, the third thing that he did was he began to write this classic work, the Dual State, which was the first book length comprehensive study of the Nazi era's legal political system, written from within Nazi Germany. He had finished the first draft of that book before he left Germany on September 20, 1938. And I thought this combination was striking and fascinating. And I wondered to myself, how did he do it? How did he remain there and represent political defendants and work in the underground and write this treatise, this classic book, and not get arrested? And then I asked myself a second question, and that was, was my initial information about the extent of his representation of clients and about the extent of his work in the underground may be exaggerated. So I tried to track down everything I could about what he had done in Nazi Germany. That was not easy because there are limited sources on what Frankl did during Nazi Germany. That is one of the reasons, I believe, that nobody had studied it before. There are limited sources because he practiced, for example, often before what's called the Kammericht, which was the Supreme Court in Prussia, in Berlin. That's where he had many of the trials. The records of that court had been bombed out and incinerated. There are limited sources because being a practicing lawyer in Nazi Germany, it wasn't possible or certainly not wise to keep a lot of one's own written records. There are limited sources because Frankl was married and happily married, but he did not have any children, so he didn't have children who were going to carry on his legacy. There are limited sources because I believe that Frankl himself, having practiced under enormous pressure for these five and a half years, was traumatized by his life in Nazi Germany and was reluctant in the post war years to talk about it. So it really required a search through a variety of places to gather together information about what Frankl had done in Nazi Germany. And those sources were a variety of scattered memoirs. Those sources were an occasional writing that Frankl produced after the war in response to people's requests to him for their own restitution claims. And those sources include, if I didn't say it already, memoirs of various people. Then there are scattered Gestapo records and scattered court records. And from that I think we are able to piece together what Frankl did in Nazi Germany as a lawyer and as someone in the underground. And if I just might wrap up this segment by saying that what I discovered was, in terms of my second question, not only how did he do it, but did he really do as much as I originally thought? What I discovered was that he did actually much more than I had originally expected. He took on a whole series of risks while he doggedly opposed the Nazi regime and did what he could to help members of the resistance in the Nazi regime.
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You've given us a nice summary of Ernst Frankl's life and there are a lot of themes that you've mentioned that I, you know, do plan on asking you about in a little bit. But I want to return to this question of the Dual State Theory. I was wondering if you could perhaps explain what the Dual State theory was in a nutshell and its legacy for political science. Because you talk a lot of Ernst Frankl as a lawyer and yet you've also alluded to the fact that he is in some ways better known today as being one of the founding fathers of the discipline of political science within Germany. And, and a lot of that rests upon this theory and his advancement of it.
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Yes. So the Dual State Theory is a theory about how to understand the legal and political system of Nazi Germany, and it looks at Nazi Germany in terms of what is translated into English as the prerogative state on the one hand, and the normative state on the other. The prerogative state was the realm of arbitrary power and official violence against which citizens enjoyed no legal protection. It was epitomized in the activities of the Gestapo of the SS of the sa. The normative state was the legal order, and that legal order consisted of two parts in turn, and that was traditional law and the traditional legal system, which was carried over and already existed when the regime began, and of newly enacted Nazi law. Now, the dual state theory, which understands Nazi Germany in terms of the prerogative state and the normative state, the first one of the first things to say and to clarify is that Frankl, in using the term the normative state, did not mean the rule of law. The rule of law is a liberal, democratic idea about fair and neutral laws in which people are treated equally under the law and in which the laws are enforced by a neutral judicial system. That is not what Frankl meant when he was talking about the normative state. He was talking about the legal system as it existed in Nazi Germany, which consisted of traditional institutions and laws, and of course, newly enacted Nazi law. Now, to leave it at that might make it appear as if his theory of the dual state was a question of static definitions, but that is also not the case. In fact, what Frankl showed in his book the Dual State, and which I believe carries over and can be used to understand the legal and political system in Nazi Germany, is that there was a dynamic interplay between the prerogative state and the dual state. In that dynamic interplay, the prerogative state had the upper hand and the prerogative state brought the normative state along with it. And it caused the normative state to follow the example of the prerogative state and to institute more and more Nazi values and more and more of the arbitrariness of the prerogative state and certainly of the discrimination of. The Nazi regime. So when one reads the dual state and understands the interplay between the prerogative state and the normative state as a dynamic process, the treatise shows how the Nazi legal system became more and more arbitrary and unfair as time went on. So that is an overview, I believe, I hope, of what Frankl meant by the dual state. One of the biggest misinterpretations and a misinterpretation that was carried over into the post war world by at least certain people was to, for example, former Nazi jurists or former Nazi prosecutors to claim that they had been part of the normative state, they were trying to uphold their rule of law. That is usually wrong as an independent historical analysis of those various figures. But it is certainly also a misuse of what Frankl meant by the normative state and of its relationship to the prerogative state.
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One of the things that I think is really fascinating about this theory is that it's a theory that is a product, at least in part, of Frankl's own firsthand experiences, witness and observations of what happened in Nazi Germany in the 1930s. And you've mentioned how this in some ways starts with the experience of Jewish lawyers during the 1930s. And you alluded to how this was how the project started. I thought the chapter in which you talk about it was one of the most fascinating, the book, what Happened to Jewish Lawyers, because it does raise this interesting question of how Frankl was able to practice for as long as he did. I mean, it's easy to kind of read back the wartime experience and assume that, you know, by the end of January 1933, Jewish lawyers were out on their ear. But the reality, as you explained, was a lot more nuanced and a lot more complicated.
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Yes. So the Nazi regime immediately attacked Jewish lawyers in Nazi Germany. Jewish lawyers in Nazi Germany Germany were an extraordinarily constituted an extraordinarily large proportion of the legal profession. Probably approximately one third of the lawyers in pre Nazi Germany were Jewish, at least during the Weimar Republic. They were also very influential in the profession, in bar associations. And some of the most prominent lawyers during the Weimar Republic were Jewish in a whole variety of fields, from Max Alsberg, the leading criminal defense lawyer in Berlin, to Max Hirschberg, who I mentioned, the leading criminal defense lawyer in Munich, to Max Hachenberg, the leading commercial lawyer in Berlin, to Max Friedlander, who was one of the leading ethics lawyers in Weimar Germany. So they were very influential. And when the Nazis took power, they wanted to get rid of Jewish lawyers. And their first blow against Jewish lawyers were violent attacks on them during March of 1933, in which SA throughout Germany, different times during March would enter into courthouses and throw out Jewish lawyers and also Jewish judges who were less significant in terms of the judiciary, but we're still there. And then after having used this initial burst of violence, they instituted on April 7th of 1933, not only the law on the restoration of the professional civil service, which applied to bureaucrats in Germany and to judges, but the law on the admission to the bar, which presumptively disbarred everybody with three Exceptions disbarred every Jewish lawyer, with three exceptions. The two major exceptions being senior lawyers who had been admitted to the bar before the beginning of World War I and veterans who had fought during World War I. So that ultimately what happened was that in the course of 1933, approximately 2/3 of Jewish lawyers remained as lawyers and Frankl remained as a lawyer because he was a veteran. He had fought In World War I, he had fought on the front line in World War I, he had been injured in a hand grenade attack during World War I. So there was that attack on Jewish lawyers. After the initial violence and after the law, on the admission to the bar of April 7th of 1933, there were between then and 1938, a variety of occasional small measures. But the next major legislation or decrees was the one issued by Hitler on September 27th of 1938, which disbarred all lawyers as of November 30th of 1938. In the time in between, Jewish lawyers were under economic pressure. There was a deliberate attempt to squeeze Jewish lawyers out of the legal profession. And they were under incredible social pressure as they were socially isolated. They were socially isolated from German colleagues, and they were socially isolated from each other. So that in that five year period, the number of lawyers of Jewish lawyers diminished. So that by 1938, the percentage of lawyers in Germany who were Jewish was probably around 13% or so. So that was the way that Jewish lawyers were squeezed out of the profession. And it is an illustration, as I think you pointed out in your. Or hinted to, hinted at in your question. It was an illustration of. Of the prerogative state and the normative state and how they exercised and worked in tandem. It was an illustration of the prerogative state with the initial violence of March of 1933, brought in, I should add, by the mass arrest after the Reichstag fire on February 28th of 1933 and a result of the Reichstag fire emergency decree, where there was an immediate roundup of opponents to the regime, including Jewish lawyers who are opponents to the regime. There was the continued violence which I mentioned during March into April of 1933 against Jewish lawyers. That was the prerogative state. That was a form of intimidation. And a form of intimidation which stuck because the memory lasted. And then there was the normative state, which was illustrated through the use of law, the law on the admission to the bar, through the way in which law can accomplish the Nazi regime's purposes more systematically and thoroughly than violence alone. So that is the way that the prerogative State and the normative state worked in tandem to push Jewish lawyers out of the profession during these five years. And those were the circumstances in which Frankl practiced law while he was in Nazi Germany. Although I should add that as far as I can tell, in many ways Frankl's practice of law was really utterly unique and different from almost anybody else, and certainly almost. It was fundamentally different from almost any other Jewish lawyer that I've come across at Capella University.
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Edu I thought you made that point well when you had a few comparative examples of what lawyers did, you know, going abroad. Some of them committed suicide because they were so despondent. And it made Ernst Frankl's commitment to fighting on very remarkable in that respect. So what does he do as a lawyer during those five years? What sort of cases is he involved in and how do they reflect his approach towards dealing with the Nazi regime generally?
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Ernst Frankl had been the council during the Weimar Republic for the Metal Workers Union, which was one of the largest unions in Germany, if not the world. That union was smashed on May 2 of 1933 when the SA raided its headquarters. Frankl's partner, Ernst Franz Neumann, who had been counsel for the Construction Workers Union, fled Nazi Germany the next week. But what had already begun to happen is that workers who had been arrested began going to Frankel and Neumann for legal advice. As their secretary said, they came into the office with the squat sticker carved into their scalps. They went behind the doors, there were closed doors, the shutters were drawn and the consultations began. Members, people who were in various forms of the resistance were arrested and often went then to Frankl because they knew of him. I might just make an aside at this point about the nature of the resistance that existed in Nazi Germany from the beginning through the late 30s. Because when we think talk about resistance people about anti Nazi resistance, people often think about the resistance that existed during World War II, about the plot against Hitler, culminating in the July 24 assassination attempt by Stauffenberg coming out of an anti Hitler conspiracy consisting of members of the elites, members of the some members of the Wehrmacht, some Members of the church, some members of business, but members of the elites who in 1933 were more often than not in fact supporting Hitler, or certainly in one way or another, but were not resisting Hitler. Who was resisting Hitler? Who was resisting Hitler was often people who are in a position of weakness, often workers, including often Jews. But the Communist Party and the Social Democratic Party ignominiously collapsed and didn't push forward the kind of resistance that many of its members might have hoped for and that many leading intellectuals, such as Franz Neumann, for example, later bitterly regretted. Rather, what happened was the resistance was a series of small scattered groups of kind of marginal groups that had existed in the past and could take on the role of resistance of some new groups that appeared. And those groups included groups under the names of, and I'll say it in English, the International Socialist Combat League, a group called New Beginning, a group called the Red Shock Troupe, a group called the Socialist Workers Party, a group called the Communist Party, Germany Opposition. Many of the members of these groups went to Frankel for representation in the summer and fall of 1933. In fact, one of the things that I found out. This is one of the surprises that hit me when I was asked that question. Did he really do as much as I had first thought? And I said earlier in this interview that in fact he did more. He did more because as far as I could tell, among other things, there was nobody who had as many contacts with as many of these different small resistance groups as Frankel, because he was representing them in court as they were charged with various crimes of subversion and treason. Often the crimes were the crime of distributing illegal pamphlets and Frankl represented such people, while, by the way, he then began writing illegal pamphlets himself. And he went into court and represented these various defendants and he represented them effectively. What were the characteristics of his representation? On the one hand, he did not represent the defendants the way someone like Max Alsberg might have represented defendants in Weimar Berlin. Max Alsberg was a flamboyant figure. He was a public figure and he was a noticeable figure. Ernst Frankl did not draw attention to himself personally. If he had done so, he would have dashed his hopes for success in no time and jeopardized his own safety. Rather, he represented defendants without publicity or at least without newspaper publicity, and then came into court and presented evidence and made his arguments in court before the judges there. I'll give you one example which is the case of the prosecution in a small Silesian town of Jower J A U E R which is reported by one of the 50 or so defendants in that case named Recher Rothschild. And what happened there was that there was a women's prison. And the head of the prison wanted to make a name for himself and therefore cooked up a charge that one evening these women mutinied by dashing down a hallway and making a commotion. And he put them on trial for mutiny. Frankl appeared at that trial with two of his non Jewish colleagues who he worked with throughout the 30s, Heinrich Reinefeld and Werner Wille. And in Rothschild's description, she says that suddenly these three lawyers were there. They didn't make fanfare, they came and they appeared in court. When they appeared in court, they divided up their tasks. Reinefeld dealt with the indictment, Vernaville dealt with the legal definition of the crime of mutiny. And Frankl cross examined the witnesses. And he cross examined two witnesses who were privileged women prisoners. Who testified for the prosecution. And in cross examining them, he drew out from one of the witnesses, why are you here? You're here for having murdered your child and you want to get out from under the life term that you face for that. And as to the other witness, he cross examined her and said, why are you here? You're here for having murdered your husband with rat poison and you want to testify in order to get out from under the life sentence that you're facing on that charge. So he was unabashed in the cross examination that he undertook. He put on a defense witness, one of the guards at the prison who said, you know, that night was there a commotion? Not really. Maybe the women were a little louder than usual. And at the end the judge acquitted all of the defendants. So here was a case which was in some ways under the radar screen. It was in Jower, which was off the beaten path. Frankel went in and he made an argument based upon the evidence. And won in the case. That's one example. Among other examples, there are other examples of when Frankel went into court and showed that the defendants had given confessions under torture. And he. One of the dramatic examples of that is the Vigart case in which there was a whole series of group of defendants. It was a multi defendant case and they were charged with treason and distributing illegal literature. And the Gestapo agents attended the trial every day and the defendants were silent. One day the trial continued on a Saturday and the Gestapo agents were no longer there. And suddenly the defendants began to speak. And Frankel described what happened on that occasion. If you don't mind, I'd like to quote what he said.
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Please do excuse me, I said, please do.
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Yes. When the spectator section was totally empty during the Saturday afternoon session, one of the defendants, Willie Gleitzer, declared in great agitation that he recanted all his statements to the police because they resulted from the worst sort of mistreatment. At that point, the other defendants, almost without exception, broke down. The accused women sobbed openly, and even the accused men cried. Then, one after the other, they told everything. Finally, the presiding judge of the panel, Ernst Eilers, announced that in rendering judgment, the court would not consider the defendant's confessions, but that the judgments would cover only the statements that the defendants made during the oral proceedings. In that case, most of the defendants were acquitted. And that was not the only occasion in which Frankel brought out that there had been testimony under torture. Now, these cases took place mostly in 1934 and 1935. In 1936, there is really a dramatic turning point. And that turning point is with a decree of June 17th of 1936, which made Heinrich Himmler, who was already the head of the ss, that decree made him also the head of the German police, so consolidated police power under Himmler. And with that consolidation of the police power under Hitler, what that actually represented was a consolidation of the prerogative state and an enhancement, even more, of the power of the prerogative state. So that was one of the turning points that took place during 1936, and that is a turning point at which Frankl began to. His legal practice began to dry up, not completely, but significantly. And also, it was right after that that there was a case in which Frankl crystallized for himself the theory of the dual state.
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C
That's actually what I was going to ask you about next, because he's engaged in this legal work at the same time as he's developing his dual state theory. And you have this chapter, you talk about his scholarship and how the degree to which it also represents a form of resistance. And you've already alluded to this when you talked about these essays that he was writing for illegal journals. What was he articulating during this period? And why was he getting it out in the way that he was? How was this serving as a critique of what the Nazis were doing?
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D
Well, there was an interesting transformation, I believe, in Frankl's thinking between the mid-1930s and the late 1930s. In the mid-1930s, one of the essays that he wrote was an essay entitled the Point of Illegal Work. And it was an essay that, among other things, was intended to encourage Social Democrats to resist the Nazi regime and to encourage them to resist the Nazi regime on the argument that illegal resistance was necessary to undermine the Nazi regime. To show that the Nazi propaganda wasn't working. To show and to make visible that there was a social democratic resistance.
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Equivalent to $15 per month required new customer offer for first three months only. Speed slow after 35 gigabytes of network spizzy taxes and fees extra CMINT mobile.com and that it was a social democratic resistance which carried force that was held by many workers and that had the potential at some point to burst on the scene and to undo the Nazi regime. It was one of the pieces of Frankel's that stands out for its tone of inspiration and encouragement and rousing resisters to act against the regime. But it also had no illusions in the sense that it clearly understood that there were great risks in undertaking resistance. In fact, if I might just quote one more passage from the end of this essay that Frankl wrote in 1935, he he concluded it as follows. He said, yes, we have become criminals. If we were not empowered by our illegal activity, I fear that we too would sink into the smog that oppresses Germany. Because we work illegally, we keep ourselves fresh. That is the point of illegal socialist work in the Third Reich to infuse the workers with strength, the waverers with trust, the sufferers with hope, and the rulers with fear. Does illegal work have a point? What would Germany be without illegal work? Now, after that essay, Frankl did undergo a change of his attitude because he began to realize that in fact the Gestapo and the Nazi regime had crushed most of the resistance and that the workers had, to a larger extent than he had at first anticipated been co opted. And then he faced an issue which was important to him is how do we justify illegal resistance? And you know, that might not be an issue that would be of interest to a non lawyer or someone who wasn't thinking legally or jurisprudentially. You were up against a regime like Nazi Germany, you resist. But Frankl was concerned about how do we justify that resistance and how do we, we group and think about coming up with a resistance that might have some hope of being effective. So this is the time that he was writing the book the Dual State. And the answer that he came up with was to work with the idea of natural law. Now I have to say, in terms of talking about natural law, my wife warns me, be careful about that, Douglas. People's eyes start rolling over when you say natural law. But it is really in its essence a concept of a source of law outside of statutes, a source of principles outside of statutes. And for Frankl, it was surprisingly the idea that he found to be very fruitful in terms of justifying an illegal resistance. In fact, in his book the Dual State, most scholarly attention is on the first part where he deals with the prerogative state and the normative state, or on the third part which deals with the problems of monopoly capitalism and how that is expressed in Nazi Germany. But the middle part is really an argument for natural law as a justification for a unified resistance. And when we talk in these terms, or when Frankl talks in these terms of unified resistance, he's now gone in a different direction from what he had written about in his article, the point of illegal work which was directed towards towards resistors who were social democrats. He's now saying resisters have to include social democrats, but also has to include other people, has to include religious people. And how do we unify a wider range of resisters in order to try to oppose the Nazi regime? Now when Franco came up with this idea and put it forth in the middle chapter of the Dual State, he was not thinking in terms of united front. In the 1930s, there were various efforts to create a united front, most importantly between social democrats and communists and how to organize that. As a practical matter, Frankl was not thinking in those terms. He was not an organizer. He was thinking in theoretical terms. And he was partly thinking in theoretical terms because he no longer saw a realistic possibility of a resistance against the Nazi regime that could be effective at that moment. And in a way, Frankel was then cornered. What do you do when the resistance has been crushed, when the possibilities for organizing a resistance are certainly not easy to see. But you still have to think about how you resist the regime in those circumstances. And that's what Frankel was doing when he wrote the Dual State. There is a kind of when one contrasts the difference between the pamphlets or articles that were illegally distributed that Frankel had written from 34 to 37 and the dual state. I mean, one of the contrasts is that what was the distribution of one of these illegal pamphlets or articles during the Nazi regime? Well, estimates can vary, but it would vary usually between 1 to 2 or 3,000 people would come across articles like these. In one circumstance I saw a number 14,000. In terms of Frankl's Dual State manuscript. There is one account of a copy of it being distributed among the AB Fair in Admiral Canaris office at the beginning of World War II. So it certainly wasn't a approach that was at that moment out to communicate with a lot of people within Nazi Germany. It was in part a result of necessity in terms of what had happened to the Resistance and also possibility, because although Frankel's legal practice never disappeared, it certainly had been diminished in terms of what he could do in his last two, two and a half years in Nazi Germany.
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C
And that's really at the end of your book, you talk about Frankl's significance for us today, which is it is this interesting challenge. What does a lawyer practicing with liberal values do when you are in an illiberal regime? How does one remain true to those values? How does one carry out their duties? And it really is a fascinating case study of not just in terms of what he did, but how we have someone who thought through a lot of those theoretical implications.
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D
I think that is right. He did think through the theoretical implications. And in his book the Dual State, I believe that in a way, when he came up with a thesis, he dealt mostly with the nature of the Prerogative State. Why did he deal mostly with the nature of Prerogative State? Because that was something that was new, that was something that was being written about in one form or another in Nazi law journals and in some Nazi court decisions, which is the public sources that Frankl had to write his book the Dual State. He could not risk writing about his own experiences in the manuscript itself. And he didn't refer to any of his own experiences in the manuscript himself, although later he said that his own experiences contributed largely to his development of the thesis in that book. So what I in part hope to do in my book is to look at the normative state, to look at the experience that Frankl had within the normative state and to see what he did within the normative state, which is controlled more or less by the prerogative state. I think that goes to the issue of the question you ask is what can a lawyer do, a liberal lawyer here, a liberal socialist lawyer, under conditions of repression. And what he did was he took advantage of the legal procedures that were there in order to make the arguments that he could in front of the judges that were there, sometimes with success. I think that when one looks at the sequence of events, at the chronology about how the historical era of the first half of the Nazi regime unfolded, what also became clear is that the place in which a lawyer could leverage some power was steadily shrinking. And that the successes that Frankel could have in 1934 and 1935 in court were increasingly no longer available. They're increasingly no longer available not only because the resistance itself was being crushed, but also because the Nazi regime reconstituted the judicial system. How did the Nazi regime reconstitute the judicial system? Well, it introduced a set of new courts. It did that immediately in March of 1933, when it established the special courts in order to implement the Reichstag Fire Emergency Decree. And then it nailed down its new institutional innovations with the People's Court, which was established on April 24th of 1934. And that was established for major political crimes like high treason. It had panels of five judges with two professional judges and three lay judges. When you say lay judges for the People's Court, that meant members of the ss, the sa, the army and the police. In April of 1936, that People's Court gained parity with the German Supreme Court. This reconstitution of the judiciary shifted the political cases into these new Nazi controlled courts. And Frankl could not practice in those courts. Those courts would not let a Jewish lawyer practice. There were one or two occasions where Frankl made the application. He was rejected. And one of the ways that Frankl was able to survive was that he understood how far he could press certain points, what steps he could take and where to draw back. He practiced law and represented political defendants in the regular courts for as long as he could. He did not venture into the realm of the Prerogative State. Now, that is not something which would be unheard of to venture into the realm of the Prerogative State. In fact, what lawyers did on occasion, the few lawyers who really wanted to help clients, and they were few, but there were those might venture into the prerogative State, might make contact with the Gestapo when a client had been arrested and put into protective custody with no legal protections. Frankl did not do that. He might have made inquiries at police stations. He did not make arguments to the police or to the Gestapo. So he knew where to pull back. And that is one of the reasons I believe Frankl was able to survive, which was one of the original questions that I asked myself. Another reason, if I might continue on this issue, which I suppose I have introduced, that he was able to survive is because of the Nazi regime's view towards lawyers. The Nazis, as illustrated by their use of the Prerogative State, wanted to instrumentalize law for their purposes, but they certainly didn't respect the legal system. They didn't respect laws besides their instrumental use, and they didn't respect lawyers. And I think because they didn't respect lawyers, they underestimated what a lawyer like Frankel and his two colleagues who I mentioned earlier, Heinrich Reinefeld and Werner Wille, were able to do. I think because they discounted lawyers, kind of in a gut way, they discounted lawyers. They didn't notice, for example, that New Beginning had meetings in the offices of Werner Villa, Frankl's colleague. So that is another reason that I believe that Frankl was able to survive. He was not only tactful, but he was not. He was in a profession which didn't attract the notice of the Nazi regime, probably from the point of view of the Nazi regime, somewhat foolishly, because when Frankel met with his clients and Heinrich Reinefeld met with his clients, and Werner Wille met with his clients, clients who had been in Gestapo custody, they learned about the torture that their clients had undergone. They gathered information about the torture that their clients had undergone. They used that information in order to alert other clients about what was happening, in order to be able to testify during or to give answers during interrogations or to testify in a way that would protect themselves. They got that information out abroad to the Social Democratic leadership in Prague and to other Social Democrats in England. But the Gestapo doesn't seem to have been all that alert. Well, they certainly weren't alert to that possibility of the position that lawyers were in to gather information and to pass it on. Frankl, like Werner Wille and Heinrich Reinefeld, were on Gestapo lists, which indicates that they were certainly at great risk. In 1935, the Gestapo had a list of 13 attorneys were helping the Social Democrats. That list of 13 attorneys included Frankl, and from what I can tell, he was the only Jew on that list. In addition to that, in late January of 1938, the Gestapo made a recommendation to Heinrich Himmler, the head of the ss, and his infamous aide, Reinhardt Heydrich, that they should arrest 30 former prominent SPD members, Social Democratic members. That list included Frankel. I think that in part of the reason that Frankl survived was that he was also lucky.
- [59:59]
C
Well, we've taken up a lot of your time, but before we go, could you tell us what you're working on now?
- [60:04]
D
Well, I am finishing up on an essay which arose out of my work on this book. And it is an essay on the thinking about resistance by the famous Protestant theologian Diedrich Bonfer. And I came upon that because when I was dealing with and studying Frankl, I wondered to myself, one of the things that struck me about Frankl is here is somebody who resisted the regime and at the same time came up with a theory of resistance to the regime. Are there other examples of that? And the other example that I came up with was Diedrich Bonhoeffer, who was one of the members of the Protestant Confessing Church. And I realized in terms of writing this book that the comparison with Frankl was too abstract in general and probably in that sense not helpful, but that Bonhoeffer raised questions about resistance all of its own. And I have a more critical stance towards Bonhoeffer than many of the many, many people who write about him, because I see that he came up with an approach to resistance which actually was not helpful for someone who did not share his religious beliefs. And since he in fact, had religious beliefs which were so all encompassing that they in fact, did make a difference to him about what the proper relationship was with the political world, I think it's appropriate to look at his beliefs and to see what the consequences of them are for the political world in which she was in. So I am finishing up on an essay on what I view as an inadequate approach to resistance by the Protestant theologian Diedrich Bonhoeffer.
- [62:17]
C
Well, it sounds like a fascinating essay.
- [62:21]
D
Well, I've worked hard on it and I am looking forward to finishing it up.
- [62:28]
C
Well, Douglas Morris, thank you very much for taking some time out of your schedule to speak with us. I hope you have a wonderful day.
- [62:33]
D
Thank you. It's been a pleasure talking to you and I thank you for giving me this opportunity.