What is it like under Communism? What is it like under Fascism?
The best book I know, on life under tyranny, is Sebastian Haffner’s Defying Hitler. It’s like Orwell’s 1984, but it’s all true, and it’s about the rise of Big Brother, more or less — the collapse of democracy and the rise of tyranny, in real time. It’s astonishingly specific, and it’s searing.
(The only thing I don’t like about the book is the title; it’s not really about defying Hitler. It’s about what it was like under Hitler. If anything, it’s about Nor Defying Hitler. That would have been a much more accurate title.)
Haffner was a trained lawyer, and while the book is light on law, it offers some glimpses. If the glimpses are taken together, we can see what it’s like when the rule of law collapses, and when the law is whatever the leader, and those who work for him, say it is.
Here are three glimpses.
Glimpse One:
Early in the regime, there “were brown SA uniforms in the streets,” but it was “business as usual.” While Hitler could “utter the vilest abuse against the Jews,” there was a Jewish judge, a member of the Senate, “who continued to give his astute and careful judgments, and these judgments had the full weight of the law and could set the entire apparatus of the state in motion.”
In these circumstances, Haffner “was inclined to view the undisturbed functioning of the law, and indeed the continued normal course of daily life, as a triumph over the Nazis.” That’s early on.
Glimpse Two:
Haffner is at a carnival ball in Berlin - a big event, a party, with dancing and romance, with “a teeming crowd, glimpses of silk, naked shoulders and female legs.” It’s energetic, flirt-full, and fun. Then someone apparently shouted, “Get up, the police are here!”
Haffner “did not think that was a particularly good joke.”
But it wasn’t a joke at all. Haffner approached one of them “a little deprecatingly, smiling and confident, as one approaches a policeman to ask for directions,” and asked, “Do we really have to leave?” The answer was slow, icy, and malicious: “You have permission to leave.” (Pause over that.)
Haffner writes: “I shuddered. I had seen the face of the SS.” (Question: Where was the law in all this?)
Glimpse Three:
A new member of the senate, a new judge, enters the scene. He is apparently “high up in the SS. He saluted with outstretched arm and a resounding, ‘‘Heil Hitler!’”
The newcomer is powerful. In some cases, the existing judges try to rule by reference to “the paragraphs of the law.” The newcomer overrules them.
He “would then instruct his co-judges that the meaning was more important than the letter of the law. He would quote Hitler.” And then “he would insist on some untenable decision.”
Haffner adds, “It was piteous to observe the faces of the old [judges] as these went on. They looked at their notes with an expression of indescribable dejection.” This was “the decline of this great, proud, old institution.”
One thing to unpack is the conflict between “the letter of the law” on the one hand and “the meaning” on the other. Why are they different?
For some judges, the meaning of the law just is the letter of the law. What Haffner is capturing is signaled by these four words: “He would quote Hitler.” In other words, the letter of the law would have to yield to Hitler’s will. Thus the words: “You have permission to leave.”
Haffner’s brief account is consistent with those from others, above all Ingo Muller, who show that under Nazism, many judges essentially capitulated, in part by drawing a distinction between (1) the letter of the law and (2) the meaning of the law, where (2) is ascertained in large part by quoting Hitler (or something like that).
You could understand all this to be a cautionary tale about the separation of powers. You could also understand it as suggesting some circumstances in which the argument for textualism (“the letter of the law”) has a lot of appeal.
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