Immerwahr
From SARAH GAINHAM BONN
THE time limit by which judges and public prosecutors could retire, before pensionable age, if they felt they had done anything during the Nazi period with which they could now be reproached, or could reproach themselves, ran out on June 30. If they did retire, no questions would be asked and they would get their pen- sions; if they did not, though they could not be removed from their jobs, according to the constitution, they might be subject to official in- quiries. A civilised solution to a very difficult problem. A total of 143 legal eagles took ad- vantage of this; a number of them because they were not willing to go through inquiries if they did not, even where they were not conscious of any guilty secret. Some because they knew they had legalised crimes on their consciences. Some, no doubt, because they wanted their pensions early. At least one man did not feel himself to be included by this unique amnesty in reverse. This was Wolfgang Immerwahr Fraenckcl, Federal Attorney-General since last March.
The Agit-prop experts of the Soviet Zone had awaited this chance and now they took it. Justice Minister Stammberger received a bundle of photostat documents in the post, court records of the Reichsgericht in Leipzig of the years 1941-43, when Fraenckel was a member of the State Prosecutor's Office there. There was a case of petty thefts from handbags in the blackout— total just over £1—for which Fraenckel had de- manded the death penalty on the grounds that the slightly sub-normal thief was 'not a very valuable member of society.' In another case a female postal clerk stole letters and the death penalty was demanded; she was condemned and the court waited until the baby she was about to have was born and then hanged her. There were a number of others in which Fraenckel had de- manded the death penalty rather than gaol sen- tences.
After 1945, Fraenckel, of the bizarre middle name, went to North Germany and was taken on the Provincial legal staff as prosecutor; from there he advanced to eleven years as Federal Prosecutor and, after two other jurists had re- fused the job, was appointed Attorney-General. That no member of the public ever challenged Fraenckel is pure luck, but that none of the various colleagues who must have known his eagerness to serve the mad and disgusting laws of the Nazi period protested at his appointment is one more example of that frightening cama- raderie that has kept known Gestapo men in police jobs.
Possibly Fraenckel believed that the Leipzig court records had gone up in flames with much else at the end of the war. And after he had reached a level in his career where small offenders who might remember him from those days were unlikely to come into contact with him, he must have felt supremely safe. He him- self has said that he feels no 'subjective guilt' —his conscience seems to be clear. This is be- cause, besides being a very ambitious man who can bend his conscience (like his concept of law) to suit his career, Fraenckel is a classic example of what in Germany is called Rechtsposirivis- nuts. The jargon word means something like, but rather more than, legalism. With it, the inner core is reached of what in German life allowed Nazism to happen. Judges and State prosecutors tend by nature not to be the most humble and self-examining of men; just as policemen are the same sort of men the world over. It is the moral framework of society that holds their useful but unpleasant qualities on the rails. And from Goethe's time at least in Germany, that moral framework of ethics, intellect and philosophical ideas had begun to be formalised, rationalised, almost mechanised as it were, into a tidy, non- human organism.
Among German lawyers this process resulted in the identification of law with justice. Justice became equated with what was written in the law books. By the time the law books were re- written to include the death penalty for coitus between a man and a woman of different nations, or for slaughtering a pig without permission, many who administered the law could see no difference between administering these laws and administering the paternalist but moral laws of the Bismarck Reich. It cannot be believed that a man of Fraenckel's intellect does not know the difference; of course there is a deep per- sonal dishonesty in his mind, as well as the ingrained habit of thought which allows him to cover it with respectability. But he was and is able to persuade himself that he was simply an administrator and the quality of the law is not his affair.
This attitude, even under the Nazis, was by no means universal. Many lawyers switched posts to technical or civil courts or took academic jobs or left the law altogether. This was the 'inward exile,' and more honourable men took this path than is sometimes acknowledged in the outside world. Others went into physical exile. One of the side-results has been, unfor- tunately, that the most experienced and best- known lawyers are those who went on prac- tising under the Nazi laws; the best men dropped out of sight. That they were not brought back into public life after the Federal Republic was founded must be laid on the consciences of those who made the Republic.
One of the reasons, which seemed pragmati- cally valid, was the need for continuity in ad- ministration. Though this reason holds good on lower and medium levels, it is clear now that it was a mortal error to allow it to carry weight on the highest levels of the law, the police and higher education.
Fraenckel has been retired with a pension. Other judges and public prosecutors ‘,N, ho think like him cannot be removed. The independence and inviolability of judges is a foundation of democracy which at the moment seems to be a trap in Germany. There is one fairly simple administrative measure that could alter matters for the future. This is the creation of a varied and independent personnel selection board 10 examine all high State and legal appointments before decisions arc made. This would not re- move any present office-holders. Nor would it lessen the danger that the propagandists of the East Zone regime, who still operate according to Fraenckel's motto—that the law exists to secure the State--have more Fracnckels up their sleeve to be produced at regular intervals. But it would ensure that future appointments are not made solely on the basis of legal competence and experience—which may be the wrong sort of competence and experience.
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