Chapter Seven - Punishment and Discipline in the Waffen-SS: Law and Legal Practice in the Racial State

Summary

On the 18th of January 1942, Himmler's private judge wrote to the central SS office responsible for the management of the SS courts. This judge – whose official title was ‘SS-Richter beim RFSS’ – functioned as a sort of liaison-officer between Himmler and his bureaucracy in matters concerning the SS courts and the SS legal code. This particular letter was a reminder to the SS-bureaucrats that Himmler personally demanded to see all applications for pardon in cases concerning the death penalty within the SS-court system. As in previous correspondence it was stressed that Himmler required that these applications contained detailed CV's and descriptions concerning the parents and the family including actual photographs of the parents.

Himmler's priorities in these cases had nothing to with concern for the welfare of the next of kin of the SS men who had been sentenced to death. On the contrary, the letter reveals two other central phenomena when it comes to punishment and discipline in the Waffen-SS: on the one hand, the ever-present importance of ideology in the formulation and practice of SS law, and on the other hand Himmler's minute interest in every possible detail in that regard. Simply put the Reichsführer-SS wanted to racially screen and evaluate his SS-men down to extraordinary detail and the SS court system and the SS legal code provided ample opportunity to do just that. For the men involved this could be a matter of life and death. Having a racially strong family (in Himmler's eyes) might provide a pardon for an SS soldier with a death sentence hanging over his head. In that way, the head of the SS organisation believed, he could save the Germanic blood he thought so precious for the future of the Third Reich.

The Third Reich: A Dual State or a Racial State?

One of the earliest academic attempts to explain the legal developments during the Third Reich was Ernst Fraenkel's impressive work ‘The Dual State’ published already in 1941. Here, Fraenkel produced an ‘ethnography of Nazi law’ and managed to smuggle his manuscript out of Germany to get it published in the USA. In his book, Fraenkel identified two different spheres of official authority in Nazi Germany, one that he called the ‘normative state’ and another, which he termed the ‘prerogative state’.