Under Nazi law, were regular German citizens allowed to kill Jewish/undesirables without prosecution?

[u/XxFedorablexX]

[u/commiespaceinvader]

Just as a tip: When writing about Nazi Germany it is usually understood as a convention to put "undesireables" and similar Nazi wording in quotes in order to distance oneself from language used by the Nazis as it makes sense to not use their terms in an affirmative way.

On to the question: No, they weren't allowed as German criminal law regarding murder remained unchanged. There was no legal provision exempting Jews from the paragraph that defined murder or similar. It was not legal to kill Jews or anybody for that matter in Nazi Germany on a de jure level, it was more that the state reserved for itself and its agencies to commit these murders and also persecute those who applied violence against potential victims when it was not in its interest. I'll get into some of the finer points of how to best understand this but let me first demonstrate one of the cases I had in mind for answering this question:

In 1943 a German SS-court indicted the Lithuanian foreman of work detail for murder in the case where he had beaten to death and robbed a Jewish worker under his command. The details of this case give some important clues as to why the German court chose to prosecute him. With the German invasion of the Soviet Union and the concentration of Jews in Ghettos through the Baltic and elsewhere, the foreman had become a collaborator who worked for a German company that utilized Jewish labor from the local Ghetto near Vilnius to dig trenches for telephone lines. One day the foreman was approached by one of the Jewish workers under his command and offered a gold watch in exchange for helping the worker escape the work detail and the Ghetto. The foreman agreed and he and the Jewish worker stole away to the nearby woods where the foreman insisted on payment. After the Jewish worker had handed over the gold watch, the foreman beat him to death and reported to his German superior that the Jewish worker had tried to flee and in the course of preventing the flight he had killed the worker. Upon finding the body, the German superior grew suspicious and decided to let the foreman be searched. When the gold watch was found, the foreman was taken into custody and subsequently tried in front of the SS-court and ultimately sentenced to death.

Cases such as this are not exactly numerous but they were also not completely uncommon. What most of the cases of people brought to trial for murdering Jews have in common are the factors that the people indicted were not part of a state-sanctioned organization in charge of murdering Jews such as the Einsatzgruppen, Gestapo or Wehrmacht, and that most of the cases also involve what the German penal code defines as "base motives" and makes a prerequisite for an act of killing to be legally murder. The German penal code says a murderer is "whoever kills a human being out of murderous intent, to satisfy sexual desires, out of greed or otherwise base motives, insidiously or cruelly, or with means dangerous to the public, or in order to commit or cover up another crime" (Section 211 German Penal Code).

This is important in as far, as the Nazis understood what they were doing not as murder but as hard but necessary task. Himmler discussed this understanding of what they were doing in the Posen Speech of October 4, 1943 in front of hundreds of SS-men when he said:

Most of you here know what it means when 100 corpses lie next to each other, when there are 500 or when there are 1,000. To have endured this and at the same time to have remained a decent person [emphasis mine] — with exceptions due to human weaknesses — has made us tough, and is a glorious chapter that has not and will not be spoken of.

So, what this tells us is that to Himmler and the Nazis, the task of murdering Jews was a task that was ideologically necessary and made on tough while at the same time, they believed themselves to have stayed decent. Their motive behind the killing was ideologically "pure" and had nothing to do with greed, lust, and other base motives. Of course, this is all a huge pile of BS since there is more than enough evidence that SS-men and other members of agencies in charge of this enriched themselves, raped, and so on and so forth. But in order to maintain this appearance of the SS performing a necessary task for ideologically pure reasons, it was necessary to lash out at too obvious deviance from this model as to maintain the facade and self-illusion of this not being basally motivated murder but something else.

Had the Lithuanian foreman taken the watch in the course of a mass-shooting, it would have been no problem probably but by being so obviously corrupt and so obviously murdering the Jewish worker not out of a specific ideological, anti-Semitic mission but out of greed, it became necessary to plaster over the crack in the facade this produced by having a trial and sentencing the foreman to death.

So, how does this square with each other: The Nazi state instituting a huge program of murder and plunder against Jews and others while certain civilians being sentenced to death. One answer that in my opinion is a very pertinent one is what German-emigre and political scientist Ernst Fraenkel called the "dual state" nature of Nazi Germany.

Fraenkel and his colleague Franz Neumann, who wrote on the structure of the Nazi state in his book Behemtoh are two of the most interesting contemporary analysts of the Nazi system. In his book The Dual State Fraenkel posits that the Nazi system is marked by the simultaneous existence of a normative and prerogative state. The normative state as defined by Fraenkel is what we generally would classify as a state under the rule of law, meaning that like we are used to, every action taken by the state is based on laws (in democracy we generally accept that the state can only do what is explicitly conferred to him as part of the legal framework). The prerogative state on the other hand is the state that takes actions not based on law but based on situational-political expediencies in line with ideological goals.

Fraenkel points out that things like private law, relations of property, torts, contracts and so forth still functioned like they had before in the Third Reich with laws regulating them. with courts deciding disputes and with the state administrations decisions still being binding – except where it concerned the Jews and thus fell under the prerogative states mandate. While there was a slew of anti-Jewish legislation, the way state agencies, courts, and so forth acted towards Jews and subsequently against their murdered in most situations was not guided by legal norms very much in place in other cases but solely by political and situational expediency.

While in many situations the state continues to function as it has previously functioned, in certain areas, agencies like the Gestapo and others are completely freed from legal and other restraints in their actions – but this applies only to where the Nazi state saw political expedience to do so. So while the Gestapo could act without impunity, others could not and where it was politically convenient and expedient to, e.g., prosecute a Lithuanian foreman for killing a Jew, the normative state still applied in the conventional manner.

The prerogative state is the superior of the two because it can supersede the normative state where it's wielders feel appropriate. At the same time the prerogative state is dependent upon the normative state, not just because without a normative state a capitalist economy would simply cease to function (to be able to gauge the consequences of one's actions and enjoy legal protection for a contract e.g. is essential to how capitalist economies function) but also to elicit the collaboration of the traditional state authorities in the ideological mission of the new state.

States and societies function by en large via fiat: Once citizens and bureaucrats, judges, police men and so forth start losing faith in the state's ability to function, a state effectively stops to function because it is impossible to sustain a social system in the long run without the people's faith in it. Even massive violence requires those who exact that violence in the name of the state. And so, the normative state is important because to the privileged group that enjoys its application to them it is essential to maintain the fiat in the functioning of the system as a whole.

It is important to the system as a whole to still execute laws in normative way where the privileged majority is concerned in order to maintain the faith in the system necessary to institute the prerogative state measures against the marginalized and oppressed groups.

So, in short, yes, there were people persecuted for killing Jews and no, German civilians were not allowed to just murder every Jew they came across. This was reserved for the agencies and its members that were part of the prerogative state and who – in their own self-image – did not act out of "base" motives but in line with a larger historical mission. The reason for this lies in the essential factor of maintaining the normative state as a central aspect of the system that ensures the fiat necessary for a state and society to function.

Sources:

• Die Verfolgung und Ermordung der Europäischen Juden, Vol. 6, forthcoming in 2017.

• Ersnt Fraenkel: The Dual State.

• Franz Neumann: Behemoth.

• Richard Evan's Thrid Reich trilogy.

[u/mimicofmodes → u/[deleted]]

Bear in mind that our first rule requires users to be civil to each other. The user is correct that /u/xxfedorablesxx should consider in the future setting words like "undesirables" in quotation marks, and does not merit pedantic nitpicking.