The rule of law

During the past decade, I have lectured and written about the history of the law in Alaska. Court records, some from as early as 1900, obviously contain tales about how the legal system has dealt with civil disputes and crime, but they also reveal fundamentals of the social order.

During the gold rush, the most common ground for divorce was abandonment. A despairing wife would write to a judge: “My husband went off to the Klondike to get rich. He promised to send for me. That was nine years ago.”

How fair was the system of yesteryear? I think it was fundamentally fair, but flawed. The system wasn’t racist, but many of the judges, lawyers, law enforcement officers and legal administrators definitely made demeaning assumptions about Natives, African Americans, immigrants and the poor of every race and ethnicity.

The system delivered justice - but not justice for all.

There are legal systems that don't deliver justice at all.

One of them is described in Helmut Ortner's new biography "Hitler's Executioner: Roland Freisler President of the Nazi People's Court." Ortner, who has authored 30 books, takes us into the legal heart of darkness. Even if you are familiar with the history of Nazi Germany, the story of the judiciary is chilling.

Freisler’s People’s Court tried only political cases - citizens charged with crimes against the Reich. These crimes included not just acts of rebellion and sabotage but words and thoughts. Numerous Germans were tried on charges of “defeatist” comments. Some were tried for thoughts they were forced to admit under questioning.

Freisler sent perhaps 5,000 people to their death. Executions usually were committed immediately after trial. There was no appeal.

German legal theory, as it evolved under the Nazis after they took power in 1933, was predicated on protecting the state, not the individual. Over time, the state became synonymous with the Fuhrer, Adolf Hitler. Carl Schmitt a prominent legal theorist (and, after the war, an unrepentant Nazi), explained the role of the Fuhrer this way:

“The Fuhrer protects the law against the gravest misuse insofar as, in the hour of danger, he immediately creates law by virtue of his role as Fuhrer and the supreme legal authority. ... The true Fuhrer is always also a judge, His role as a judge springs from his role as Fuhrer.” Schmitt concludes by insisting the Fuhrer’s deeds are not subordinate to justice but constitute “supreme justice.”

This tortured, tautological reasoning was the basis for Nazi law. It was repeated by jurists, scholars and ideologues for years. The principle is simple once cleared of legal mumbo jumbo: What the Fuhrer says is the law; what the Fuhrer does is legal.

Roland Freisler was born in 1893 and began studying law in 1908. A 15-year-old law student would not have been unusual at the time. When Germany entered World War I in 1914, the 20 year-old Freisler rushed to the flag. He served on the eastern front - briefly. In October 1914, he was taken prisoner and remained a prisoner for the duration of the war. Once repatriated, he returned to the law, soon endorsing ultra right-wing political parties. He joined the Nazi Party in 1925, number 9,679 on the party enrollment list. A number under 10,000 would have carried the prestige of early devotion to Hitler.

Freisler, an energetic, bright, ambitious man, aspired to reach the top of the Nazi legal system and came quite close at the People's Court. Neither physically imposing nor handsome, his most compelling characteristic was his booming voice, frequently laced with scorn and sarcasm. He was so loud that audio recordings of several trials were muddled by the imbalance between his high-octane raving and the meek responses of defendants.

Nov. 17, 1944, was a typical day at the People’s Court. Freisler tried Margot von Schade, 21, for subversive remarks about the July 20 plot on Hitler’s life, in which a bomb planted in the Fuhrer’s headquarters by anti-Nazi plotters nearly killed him. Von Schade told a friend the plotters failed due to “bad luck.” She was turned in. Fresiler, who saw his role as judge, jury, and prosecutor, screamed the indictment at the young woman, bellowed the evidence, and concluded by shouting the verdict and punishment - guity and death. In this case, the death penalty was not carried out and von Schade survived the war.

This case made a special impression on me because it was tried the day I was born. Thousands of miles from Berlin, Nov. 17, 1944, was just another cold, quiet Fairbanks winter day.

Freisler’s most notorious trials involved those July 20 plotters - mostly military officers who attempted to kill Hitler and end the war. Some of the trials were filmed. You can still watch the pathetic defendants, stripped of all dignity, suffering in shock and awe as Freisler denounced them as treasonous, fumed over their perfidy and called for the death penalty. And these death penalties were carried out within hours.

The German legal system Freisler worked within was obsessed with treason. And not just treason, but “high treason.”

“High treason” could be virtually anything a judge found inimical to the Reich. And not only were death sentences handed out, Freisler, in sentencing, often said the defendant had “forfeited his honor for all time.” This phrase appears repeatedly in his verdicts - as if Freisler himself had the power to impose sentences eternal.

Roland Freisler screamed his last on Feb. 3, 1945. He was killed, age 52, mid-day in an American air raid.

Freisler died a pillar of the Nazi legal system, dispensing death sentences to his end. He did not recognize that he had forfeited his honor long, long ago.

Michael Carey is an Anchorage Daily News columnist.

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