Crime, Law & Social Change31: 165–169, 1999. 165

Book reviews

John P. Teschke,Hitler’s Legacy(New York, Peter Lang Publishing, 1999).429 pp. ISBN 0-8204-4026-4.

While the literature on the Holocaust and the Second World War has beengrowing at a geometric rate in recent years, one is reminded that certaintopics require further attention. The post-war German situation has receivedsome coverage through political and cultural history, but aside from Germanhistorians, its legal history has scarcely been touched. To this end, John P.Teschke – in a revision of a doctoral dissertation presented at the Universityof California – offers a useful volume on West Germany’s political and legalevolution from the end of World War II until the 90’s. The author bringsstrong credentials to his work (he is a practicing attorney) and thus has an eyefor legal details that some historians might overlook. Through an impressiveuse of German primary and secondary sources, Teschke sets out to answera basic question: what were the legal and political issues that resulted fromthe reemergence of Nazi influence in post-war West Germany? To answerthis vexing question, the author analyzes the legal and governmental systemthrough case studies, political controversies, German and Allied trials, andthe body of German law.

Teschke’s analysis begins in the aftermath of the war when the complic-ated international climate made a simple denazification process problematic.Allied plans for political reconstruction, which ranged from draconian meas-ures to simple denazification procedures, were quickly complicated by thenascent Cold War. Moreover, as the full scale of the Holocaust was revealed,it was soon evident that an unprecedented situation lay before them, one thatrequired unique measures. However, after the guns were silent, the wartimealliances were gradually transforming into Cold War alliances. To be sure,the wartime coalition itself was always a precarious affair; General GeorgeS. Patton frequently set Allied Officials’ teeth on edge when he openly de-nounced the Russians. Long-term political arrangements were always on theminds of the Allied leaders, for they feared the Russians almost as much asanother reich. Thus, they did not act too harshly against the German people;West Germany had to be a capitalist bulwark against further Communist ex-pansion. Not only did Allies stand by and allow Nazi administrators backinto government jobs, but also Nazis were recruited by Allies for their ownpurposes as counter intelligence operatives. Through its Operation Paperclip

166

program, the United States recruited numerous Nazi administrators in its anti-Communists efforts, the most prominent of whom was Reinhard Gehlen, theGerman general in charge of Soviet espionage.

This situation created internal problems for the German government longafter the peace process was completed. Teschke analyzes two cases fromthe Bonn government that bring many political controversies to the surface:Theodor Oberländer and Hans Globke. The former was among the most prom-inent Third Reich officials to re-enter public life, serving in the AdenaurCabinet as a Minister of Deportees from 1953 through 1960. As a formerprofessor of agricultural economics at the University of Konigsberg, Ober-länder was just the sort of individual the Third Reich needed to lend itselfcredibility; in its capacity, he served both as a political advisor and as acounter-intelligence expert. In his duties as an advisor to the NightingaleBrigade, an organization of Ukrainian pro-Nazi operatives, he was accused ofwar crimes: this brigade was involved in the murder of a number of dissidentPolish college professors as well as civilians. Convinced that he drew up theprofessor murder list and was the “Hangman of Lwow,” the East German gov-ernment – after a trial in absentia that was more about Cold War politics thanit was about justice – convicted Oberländer as a war criminal. Throughout theCold War, East Germans tried to get ahead of West Germans in the exposureof war criminals as a means of indicting their system. To counter East Germanaccusations, Konrad Adenaur claimed that the presence of such men in publiclife “tamed” the legacy of the Third Reich. In essence, Adenaur was tryingto vaccinate his political system by introducing a strain of the virus into it.Although Oberländer was not the actual “Hangman of Lwow,” the case wasinstrumental in its influence on government policy; in fact, the Oberländeraffair helped initiate the largest wave of war crime trials post-war Germanyhistory during the early 60’s.

Teschke further elaborates on these themes in his discussion of Hans Glob-ke, advisor to chancellor Konrad Adenaur as well as the coordinator of spyingand propaganda efforts of Adenaur’s government. Globke’s case is especiallyinteresting in light of his statement that anyone has the “right to survive”a dictatorship by whatever means are available to them; in his case, sur-vival meant drafting racial purity decrees. Moreover, he adopted the positionthat one owed absolute obedience to the state, regardless of what this posi-tion requires. Globke’s case is a confluence of numerous aspects of the Naziquestion: Cold War politics, amoral bureaucratic pragmatism, generationalconflicts, and malevolent self-interest. He simply adapted to whatever systemwas in power and altered his views accordingly. In this regard, both he andOberländer – in addition to the countless other Nazi functionaries – were

167

essentially soulless company men who did whatever was required to advancetheir careers.

The real significance of Teschke’s presentation of these two cases demon-strates West Germany’s complex dilemma: not only was it caught in themiddle of two competing idealogies, but also its pool of political talent wastainted by a genocidal and totalitarian interregnum. On one hand, it wasdeplorable to tolerate ex-Nazis in the government; on the other, it was im-possible to cope with Cold War realities without the administrative expertiseof these people. To be sure, their expertise was a double edged sword: bothmen – and others like them – used their privileged positions to maneuverother ex-Nazis back into power.

The significance of trials is another key theme in the book. Trials revealedas much about those conducting them as they did about the meanings ofhuman rights and justice. For the Allied Powers, the trials (the first was afour-power tribunal at Nuremburg and other nations held subsequent trials)were a chance to get the Nazi regime’s conduct on record for posterity. Forthe Germans, it was a chance to restore the rule of law as well as theirblighted national reputation. There was, thus, a dichotomy between practicaland philosophical positions: Germans tried prominent worst-case offendersas a pragmatic matter to rid themselves of outright war criminals; the Allies,taking a more abstract view, tried the legality of the government itself andwanted the judicial proceedings to establish the proper tone for future war-crime proceedings. Moreover, the Allies probably wanted to gently remindthe Russians what might await them if they resorted to harsh treatment ofdissidents.

The evolution of German law is a final theme that Teschke analyzes atlength throughout the book. German law, like any other nation’s legal system,did not exist in a vacuum: it must be placed in its proper context. During theimmediate post-war years, Germany took a defensive posture in response toforeign influence over their legal system; it minimized the legacy of the ThirdReich as much as possible. In fact, it was determined that the Hitler regimewas a legal government, not an outlaw state. It was, however, agreed uponthat certain officials acted beyond the limits of the law, and such people couldbe tried as war criminals. In Germany’s own trials, there was something of acatch-22 in regard to getting a conviction: it was impossible to convict peopleunless they went beyond explicit orders, but most of the high command wasdead or on the run. Thus, this problem – along with the fact that many vitaldocuments were intentionally destroyed – made it difficult, if not impossible,to prove who went beyond explicit orders. Germany further attempted tominimize the chasm between itself and the Third Reich by mandating a one-

168

fifth quota for ex-Nazis in government jobs under article 131 section of theconstitution.

As the international climate changed, German law correspondingly evolvedalong with it. The main impetus for the change in policy toward ex Naziswas the tension between East and West Germany. In an effort to get aheadof the other side, East Germany frequently exposed West German officialswith a checkered past, exposures that were often meant as indictments ofits capitalist arrangements. Moreover, West Germans took a harsher view ofwhat transpired during the Hitler years as time passed, so there were internalsocial pressures as well. German social and cultural reaction to the Holocaustmirrored American’s response to their own tortured Indian legacy; it took awhile to settle into the popular mindset. After all, it was not until the 60’s thatscholars began to re-examine the Indian legacy.

As the Cold War was winding down, reunification brought significantchanges in Nazi policy. The most profound legal shift occurred when theFederal Social Court of Germany (in 1991) reversed the no pension policyfor heirs of people executed by Nazi military justice. The Bonn governmentdetermined that Hitler’s regime was legal, so, therefore, actions taken by itwere also legal. However, this new ruling cleared the way for a further legaldeconstruction of Hitler’s legacy.

While this is a history book, the issues Teschke discusses have relevanceto criminologists, psychologists, and sociologists. Criminologists, in partic-ular, have been largely silent in offering insights into what happened duringHitler’s reign. Perhaps they have been too intimidated by the task at hand.After all, Daniel Goldhagen has ignited a tempest in a teapot with his con-troversial thesis on the roots of the Holocaust: conditioned anti-semitism wasenough motivation for “ordinary Germans” to become willing killers.1 In part,Teschke is discussing the social response to a unique form of criminality:state sanctioned mass murder. Moreover, the implementation of the FinalSolution is an example – at the most basic level – of crime in the workplace.Nazi executioners pose a special challenge for criminological inquiry, inter-secting with theories about white-collar crime, violence, ethics, workplacecrime, anomie, differential association, and obedience theories. Moreover,this book speaks to sociological concerns such as law and society, law andsocial control, and social reaction theories.

On the debit side, there could have been an entire chapter on Germanconstitutional law and procedure, an addition that would have given the legaldiscussions more clarity. Further, the book could have used a tighter organ-izational structure; as it stands, it is sometimes difficult to determine whichpoints the author wants to emphasize in each chapter. Still, it is a helpful addi-tion to the body of literature on German politics and the Holocaust. Scholars

169

looking for an account of the post-war legal and political controversies inWest Germany will benefit from this book, particularly from Teschke’s de-tailed coverage of the Oberländer and Globke affairs. It might be instructive toread this book in conjunction with other recent forays into post-war Germanhistory, including work done by Jeffrey Herf and Jane Kramer.2

Notes

1. Goldhagen, Daniel JonahHitler’s Willing Executioners: Ordinary Germans and the Holo-caust.New York: Alfred A. Knopf, 1996.

2. Herf, JeffreyDivided Memory: The Nazi Past in the Two Germanys.Cambridge and Lon-don: Harvard University Press, 1997; Kramer, JaneThe Politics of Memory: Looking forGermany in the New Germany.New York: Random House, 1996.