Wikipedia:Reference desk/Archives/Humanities/2021 August 30

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August 30

Germany after the capitulation

A user asked this over at the Reference desk on the Finnish Wikipedia:

Colonel-General Alfred Jodl signed the unconditional capitulation of Germany on 7 May 1945, after which Germany ceased to exist as a state. Suppose the next day Hans gets caught red-handed trying to steal Fritz's bike somewhere in occupied Germany. According to what law is Hans judged? Is German law applied here, even though the German state doesn't exist any more, does the law depend on the state that occupied the territory in question, or do we live in anarchy where Hans's fate is left to the angry public, who might shoot him in the head?

Now I kind of wonder at the "Germany ceased to exist as a state" part. Somehow I doubt Germany as a legal entity would just have been wiped out and replaced by what would essentially have been extensions of France, the UK, the USA and the USSR. What exactly was the situation at that point? JIP | Talk 23:27, 30 August 2021 (UTC)

See Legal status of Germany, Potsdam Agreement, Allied-occupied Germany, Soviet Military Administration in Germany, and Berlin Declaration (1945). "after the gross criminal abuses of Nazism, and in the circumstances of complete defeat, Germany now had no government or central administration and that the vacated civil authority in Germany had consequently been assumed as a condominium of the four Allied Representative Powers on behalf of the Allied Governments overall, an authority later constituted into the Allied Control Council" DuncanHill (talk) 23:47, 30 August 2021 (UTC)

Another good article is Martial law. Immediately after the war, Germany was under martial law; which military had the authority over our erstwhile bike thief Hans depends on which of the occupied zones of control that Hans lived in at the time. As noted above by DuncanHill, the division of Germany into zones of control was already decided ahead of time by the four Allied powers at Potsdam, and martial law was essentially enacted as those powers moved in and took over territory. Of note is that equivalent treatment was NOT a reality among the four zones of control; the Germans living in the east tried desperately to move westward to avoid the advancing Soviet army, which bent on enacting a bit of revenge for their own sufferings at the hands of the Germans, were less interested in "due process" than the other allied powers. German evacuation from Central and Eastern Europe and Soviet war crimes#Germany are good overviews there. --Jayron32 10:58, 31 August 2021 (UTC)

I think from the wording of the OP's question, they are generally already familiar with the details of the continuity of the states themselves, at least in the broad strokes. What they seem to be inquiring about is the form, scope, and doctrinal/jurisdictional foundation of the legal system (or at least the justice system) in post-war Germany. SnowRise ^{let's rap} 11:09, 31 August 2021 (UTC)

JIP, the answer to your question depends on the scope of time we are talking about. Before we even get to the post-war era, it is important to understand for context that much of the continuity of German law had already been lost, pre-occupation: first off, the Nazi apparatus had hollowed out much of the resistance in the courts to it's rule (and to it's more controversial powers and policies) systematically, through intimidation and outright reprisals against those voices which did oppose the increasing monopoly on power of the party/the overthrow of democratic processes/the Race Laws and other abrogations of civil rights and due process, and support for that (not by any means small, unfortunately) portion of the legal community and judiciary who were happy to further all or a part of this strategy for increased concentration of state power. Ultimately the administration of new legal order was channeled increasingly through "special courts" and military courts (including of the drumhead court variety), further consolidating the fascist stranglehold on power and diminishing means of effective resistance of a legal sort. These developments also advanced along simultaneous lines in terms of the legislation itself, of course, which is an equally mixed bag of intimidation and outright complicity from those already within the relevant bodies. Add on to all of this the actual obliteration of the supporting infrastructure (state and physical) and massive attrition of personnel in the late and post-war periods, and you get a situation where, but for the occupational forces controlling their immediate spheres of influence, there would have been very little in the way of complete anarchy when it came to criminal conduct.

Early into Germany's occupation by the allies and their administrative partition of its territories, they had already agreed upon a somewhat unified approach (the Potsdam Agreement) for how to handle reconstruction of Germany, including it's legal system. Of course, in reality, there were great differences of opinion between the Western powers and Russia (and to a much lesser extent, differences between the three Western allies) about the exact form of the state structures and justice systems, reflecting their very different plans for the future of Europe and the disposition of Germany in particular. But in principle, they had a greed on a basic framework for the reconstruction and 'denazification' of German society. This proceeded along numerous state and cultural levels, but needless to say, the legal code was of particular interest in this regard. So the allies set about methodically comparing pre- and post-Nazi era German law, informed further by other contemporary continental Civil Law systems (and just a dash maybe of influence from American and English common law), to recreate the German legal code in a fashion that would not be rejected wholesale by German cultural mores but was also expunged as completely as possible of Nazi influence. Several small armies of lawyers (some German, more occupational, and a not small number German expatriots who could be trusted by their adopted nations) generated the new code from the ground up, which would be adopted by a combination of fiat and eventually codification to varying extent by the nascent East and West German states, each influenced very heavily by the Soviet and West (or, before long, NATO) sponsor states in how justice would ultimately be conceived and administered.

But in the immediate post-war era, in practice authority for law and order was shared by the local proto-authorities and the occupational military forces. For the first few years, both police forces and courts of the native German variety were meager things with authority often tightly constrained by the exercise of power of the occupational forces: in the portions of Germany under Soviet control, this control was more unified under the military and the elements of the state police that were already being developed under Soviet guidance. In the American, British, and French controlled territories, there tended to be both civilian oversight of reconstruction efforts (foreign ministry/department bureaucracies) and, needless to say, military authority. There was a period towards the beginning of the occupation where the various directives of the occupational forces all converged on a pre-Potsdam policy of shutting what little remained of the courts down, until they could be re-established in a free of even a whiff of influence of the former Nazi state, in terms of both persons and concepts: the special courts and Nazi party courts of course were abolished with no intent of their return in any form. Still, the idea was, in theory, that criminal matters not of direct interest to occupational authorities or to the war crimes processes would be eventually handled by the German courts. In practice, if any of the occupational powers wanted someone to stay in prison for any reason, that party didn't have much recourse to appeal.

Nevertheless, nominal return of authority to the German courts (along with significant other state apparatuses) got underway by 1947-48. Noteworthy is the fact that this required accepting that former members of the Nazi power would have to be granted some stewardship of the legal system, including the restored judiciary, since they were just too large a statistical portion of the remaining legal experts needed to maintain the courts. This lead to some troubling lasting influences of Nazi ideology and thwarted prosecutions for some violent political crimes conducted by former members of Nazi paramilitary groups: the occupational authorities were known to throw their clout around to get retrials in some of these cases, but it was clear that expunging Nazi ideologies from the legal community would become a somewhat generational matter.

On a practical note, it's worth adding that, using your hypothetical scenario or anything remotely like it as a the basis for discussion, it's probably fair to say there was no recourse to justice for petty crimes early on: the size of the police forces, their remit of influence, their allowed equipment and the scope of their physical jurisdiction were all very limited and their resources scarce. With murder common, the hunt for Nazi war criminals ongoing, an absolute epidemic of rape across the country, and black market profiteering and corruption everywhere, petty theft would not have been much of priority. That said, you can bet there was a fair deal of street justice incident to thefts much smaller than a bike: rationing was strict and basic resources scarce in major population centers for years following Germany's defeat. The German system would also be called upon to play a significant role in trying those guilty of crimes committed under the Nazi regime: while much of the highest levels of these crimes were prosecuted by the allies under war crimes courts, the vast majority of trials for murders and other violent crimes during the Nazi era would eventually be tried by German courts (although the legal framework applied by these courts could vary between utilizing the national German law and the war crimes standards, allowing for significant influence by the allied authorities) further straining the system. SnowRise ^{let's rap} 11:09, 31 August 2021 (UTC)

Even in stable, well-organized states petty crime mostly goes unpunished. Unless someone is caught In flagrante delicto, it is rare for most instances of petty crime to be sorted out. When you report such a crime to police, it gets filed as a report and basically filed away until someone gets caught who they can connect your crime to. For something like someone stealing your bike out of your yard overnight, if no one actually catches them doing so, they aren't going to be caught. --Jayron32 17:37, 31 August 2021 (UTC)

Someone on the Finnish Wikipedia has replied:

Did Germany cease to exist? As far as I know the government ceased to exist, but a state is more than its government. See here at the English Wikipedia: German Instrument of Surrender.

That's what I was thinking, just because Germany had no government any more doesn't mean there wasn't a Germany any more. JIP | Talk 03:09, 1 September 2021 (UTC)

Germany didn't cease to exist, the German state ceased to exist. There was nothing with any of the characteristics of a state. DuncanHill (talk) 03:27, 1 September 2021 (UTC)

As noted, Germany has different meanings. As a nation, it continued to exist. As a state it did not. --Jayron32 10:54, 2 September 2021 (UTC)

Germany was theoretically throughout the Cold War period an occupied country that was given a lot of leeway. In 1984 the commander of the British garrison in Berlin argued that a firing range was unaffected by West German environmental laws because "I am the rightful successor of Dönitz...and I have legal immunity"! (Ardargh, Germany and the Germans, 2nd ed. p. 36) Blythwood (talk) 22:59, 2 September 2021 (UTC)