Hitler's Courts is a historical documentary film produced in 2023 by Jean-Marie Barrère and Marie-Pierre Camus, with the participation of specialists (lawyer Joachim Kerth-Zelter, historian Johann Chapoutot, historian Christian Ingrao, jurist Aurore Gaillet, journalist Klaus Hillenbrand) and broadcast the same year on Arte, in cooperation with the Foundation for the Memory of the Shoah.

To impose their vision on Germany, the Nazis had to occupy the terrain of law, presenting it as a weapon of racial self-defense. Man disappears as a subject of law to be replaced by the community of the people. We must understand how law and justice became the weapons of the Nazi enterprise. At the heart of Hitler's courts were jurists and magistrates.

The goal is to bring the judicial institution into line. Among the protagonists, we can cite, on the side of Adolf Hitler's adversaries: Lilo Gloeden-Kuznitsky, a jurist, as well as Hans Litten, a democratic lawyer; on the Nazi side: Werner Best, a jurist, as well as Johann Reichhart, the executioner under the Weimar Republic then under the Third Reich. In 1931 a turning point occurred which revealed the importance of law for the Nazis.

From the beginning of the 1920s, the Nazi party waged battles against the judicial institution. His militia or assault section (SA) gave him a presence in the streets, assassinating his opponents (including the communists), which was an open challenge to the Weimar Republic. The perpetrators, some of them, were brought to justice because of their political violence (two thousand trials in eight years).

On May 8, 1931, Hitler himself was summoned, which astonished all of Germany. When the leader of the far right finds himself in court, unrest takes over the streets of Berlin. Litten is at the origin of the affair, already familiar, at twenty-seven years old, with the trials against the Nazis. Its goal is to show that Hitler represents a threat to institutions. The SA shot at communists in a Berlin dance hall.

Eight months earlier, Hitler took an oath before the Reich Tribunal in Leipzig, swearing to respect the law and never resort to violence. Litten therefore wants to prove that Hitler, as the leader of the Nazi Party, is responsible for the abuses committed by the SA. This is how Hitler found himself summoned and assigned to the bar, and the Germans knew that he was at great risk. On May 8, 1931, there was a crowd at the court.

Litten has a document signed by Joseph Goebbels, head of propaganda, close to Hitler. In this pamphlet, Nazi-Sozi, Goebbels gives instructions to activists on how they should behave. Thus, it is written: "We want to liberate Germany, and nothing else. If the people do not agree to be liberated, we will do it without their consent."

Further on, it is written: “The desire to be in power generates the means necessary for this power.” Confronted with these statements during the audience, Hitler found himself in difficulty, forced to distance himself from Goebbels and say that the text was not stamped by the party. His line of defense consists of presenting the latter as legalistic and destined to always remain so.

While awaiting the verdict, Germany is holding its breath. Kuznitsky also followed the details of the trial, along with his journalist brother. The Jewish Museum in Berlin has dedicated a case to the democratic lawyer. The documentary's portrait shows the Weimar Republic in the light of the emancipation of the population, including women. I would say: what about its long-term economic viability?

Indeed (and the film does not make this important digression), if the Weimar Republic was as brilliant as its supporters claim, how could the Nazi regime have imposed itself? Despite all the interest of the documentary, it ignores a crucial aspect of the problem: the fact that Germany was then a country in crisis, which helps to explain the emergence of Nazism.

The Nazis are therefore presented by Barrère as a threat to democracy. Understood in its republican and parliamentary sense, the democratic perspective thus defined appears in fact to be part of an antagonistic relationship with the extreme right, and it is not a question of denying this dichotomy, nor the combativeness of Nazism. However, the explanation is too reductive, too incomplete.

Certainly, part of the population could find an advantage in the institutions of Weimar, but overall a solid political project is not based only on the law (although this is the main subject of the film): it also depends on economic, financial and material conditions likely to guarantee the legal orientation defended. However, it is especially this part which was to pose a problem under Weimar.

I will make a connection with what we are experiencing in the world in 2023, where the Western media (especially in a country like France, under the presidency of Emmanuel Macron in line with his predecessors) are obsessed with so-called questions of civic law (hence, moreover, a documentary like this), while the decisions taken in economy give rise to political contestation.

This digression having been made, I return to the summary of the film. Since the trial began, Litten has believed his safety was threatened by Nazi militants and that the streets were no longer safe for him. As for Hitler, Leo Rosenthal would have taken photos of the party leader during his appearance, interpreted by the democrats as revealing the defeat seizing the accused during the confrontation.

However, the verdict was lenient: light sentences for the SA, and no consequences for Hitler. Editorialists see it as a sign of the benevolence of conservative judges. A few days later, a completely different event excited Germany: the release of the film M by Fritz Lang. The theme of wild popular courts clearly designates, according to criticism, the Nazi conception of law.

In the fall of 1931, a new affair broke out. While Litten and Hitler clashed, Best, then a young Nazi activist, was drafting a coup to counter the communist threat. After his law thesis, he joined the NSDAP, the Nazi party, being part of this radical far-right youth gradually establishing itself in universities, as an assessor judge in Hesse, his native region.

It was in the solitude of his office, after his working days, that he developed his coup plan. In the fall of 1931, the texts leaked to the press under the name of the Boxheim Documents. The scandal breaks out. A few days later, it was with apprehension that Best went to Munich to meet Hitler. However, the party leader takes into account the activist conformity of the act.

Basically, Hitler calls for this kind of attitude. He points out to the young activist that he could have avoided such a tactical error, especially with the elections approaching, while recognizing that, in practice, this is how it should be done. Hitler therefore publicly came to Best's rescue, even though the Nazi leader, basically, harbored a recurring antipathy towards jurists.

Hitler, in his speeches, said he was closer to German peasants and workers. The profession of lawyer nevertheless remains deeply rooted in German history, and it is even a royal road to access the highest positions, including political ones. Lawyers are therefore part of the elites who are never far from power. Hitler understands his interest in dealing with this corporation.

In universities, the rising generation is nationalist and radical, like Best. Despite their initial aversion to Nazi populism, this youth ended up joining the latter, at the same time as they became the majority in student corporations. It is an ideal recruiting ground for the swastika party. At the end of the 1920s, those finishing their studies were afraid of unemployment.

The documentary then evokes the crisis of 1929. Shouldn't we have talked about it earlier, specifying the responsibility, on its scale, of the Weimar Republic in the impact of the crisis on Germany? Still, the Nazi Party was able to offer interesting career prospects to young law graduates. Best loses his position as a judge but meets the SS, Hitler's bodyguard.

The leader of the SS is called Heinrich Himmler, and he recruits Best, who in turn becomes SS. The SS (Schutzstaffel, or protection squadron) mainly recruits three types of population: first, lawyers; second, managers and engineers; third, specialists in the human sciences, all combining political radicalism, academic excellence and functionality.

Most of the time, the recruits already constitute a functional bureaucratic elite, allowing the SS to penetrate Germany's local or federal state bodies. In the summer of 1932, the economic situation was not good (we are finally coming to this point, as it is a shame that the subject did not, let us remember again and again, insist more on this enlightening aspect). One in three Germans is unemployed.

This, I say, is the reality of the so-called brilliant Weimar Republic, incapable of providing work for its population. Among the unemployed, Reichhart is the last representative of a line of once-prosperous executioners. As executions were not commonplace under Weimar, Reichhart had to find other ways to feed his family (hotel business, sale of religious tracts, fruits and vegetables).

On July 10, 1932, on the train to Munich, Reichhart was brooding. Since he moved to Holland for his business, this is only the second time that he has been called back for an execution. This time, the condemned will be a woman. He then goes and drink a few beers in town with his assistants, who confirm that the atmosphere has changed since his departure, almost like civil war as the legislative elections approach.

It is therefore without bitterness that Reichhart takes the train back to Holland. There, his wife and three children wait for him in their modest apartment in Amsterdam. Two weeks later, he learned of the election results. With 33.7% of the vote, far ahead of the Social Democrats, the Nazi Party became the country's leading political party. In Germany, the news had the effect of a bomb.

However, it took many months of negotiations before finally, on January 30, 1933, Marshal Paul von Hindenburg agreed to appoint Hitler chancellor. Lilo's father, Martin Kuznitsky, learns the news while reading the newspaper. This appointment of Hitler to the post of chancellor, the legality of which the press recognizes, heralds dark days for this family, which nevertheless decides to go on vacation to the mountains.

And then, although he had to resolve to appoint Hitler, Marshal Hindenburg still presides over the country. He is a hero of the Great War, and his presence is reassuring. There are only three Nazis in this right-wing coalition. However, the jurist Wilhelm Frick became Minister of the Interior, and Hermann Goering Minister of the Interior of Prussia, the largest of the Länder, key positions to control the police.

To contain the Nazis, Hindenburg appointed his conservative ally Franz von Papen as vice chancellor. Will he manage to keep control of the situation? Some, like Lilo, are worried about the trivialization of the Nazi discourse, while Hitler travels the country, strong in his new legitimacy. But, on the night of February 27 to 28, 1933, a fire ravaged the Reichstag, seat of the German parliament.

A suspect is arrested: Marinus van der Lubbe, aged twenty-four. He is a communist. Germany is in shock after the fire. The providential arrest of a communist suspect allows the Nazis to brandish the threat of a conspiracy. Immediately, Hitler obtained from Marshal Hindenburg the signature of an exceptional measure: the ordinance for the protection of the people and the State.

This order grants almost unlimited powers to the executive power, the administration and the police. The Nazis immediately launched a wave of arrests. Litten is taken to Spandau prison. For several days, the arrests continued, and dozens of personalities joined Litten behind bars: deputies, journalists, intellectuals, writers, most of whom opposed the Nazis.

Litten is witnessing a short-circuiting of the judicial institution as he knew it. Even in our time, opponents of the extreme right consider that February 28, 1933 marks the end of the rule of law in Germany. For my part, I would like to point out that the notion of the rule of law is polysemous. Thus, this date rather corresponds to the calling into question of a certain conception of the rule of law.

What commentators mean, when they speak of the end of the rule of law, is based on the observation of an absence, from now on, of judicial control: one can be arrested, placed in administrative detention in a concentration camp for an unmotivated, unargued and unlimited period. This is what happens to Litten when he is taken to the Sonnenburg camp, placed under SA control.

The camp guards, members of the SA, wear auxiliary police armbands, a proof that, between the classic actors of the judiciary and the police, on the one hand, and the Nazi arbitrariness, on the other hand, the border is now blurry. Best, who became a legal advisor in the SS, is precisely one of those who was responsible for establishing the legal framework for these arrests, using a supporting document.

This document, the Nazi Schutzhaft, is inspired by a Schutzhaft invented before Nazism came to power. Best is part of a judicial, police and SS militant team which brought it up to date to integrate it into the administrative and legal arsenal of the Third Reich. The header indicates that it is a police decision, while wearing the purple color of court decisions, blurring the lines.

Three weeks after this first decisive step, the Nazis took a second step: it was in a climate of intimidation, reinforced by the massive presence of the SA, that the meeting of the new parliament took place on March 23, 1933. Relying on exceptional measures, Hitler summons the deputies to give him full powers. The next day, the law was passed by 444 votes to 94: Hitler governed alone.

For historians hostile to Nazism, it was without touching the constitution that Hitler installed the dictatorship. The next day, Frick, the Minister of the Interior, addressed the nation in a filmed address. The question that then arises is: who, in the eyes of the Nazis, can legitimately claim to be part of the German community? I will pass over this aspect, which shows the racial excesses of Hitler's ideology.

In my back and forth between the summary-quote of the documentary and my personal comments, I would also like to recall that, as a supporter of an ultra-capitalist line within the far right, and belonging to a generation nourished by modernity and post-modernity, I cannot adhere to the racist conception of politics that the Nazis had. What interests me are the strategies.

Indeed, we can draw inspiration from strategic mechanisms to nourish different visions of the extreme right. We must also see (and this is also an observation shared, among others, among the French Nationalist Circles according to what I have read and heard), that the problem of ethnic cultures in France does not arise, historically, in the same way as in Germany. France is a more open country.

That France is, at its roots, a predominantly white country and should remain so, or the desire to abolish land rights and family reunification, or even to consider remigration, does not imply being a Nazi. If the National Rally ever comes to power, and assuming it comes to such measures, there is a long way between Adolf Hitler and Marine Le Pen. It is a fact.

The Gefolkschaft is the troop that follows, with unconditional obedience, absolute loyalty to the leader. This definition, in itself, has no racial implications. Nevertheless, in the history of Nazi Germany as it was made, the notion became, consequently, inseparable from a project where the German people were no longer distinguished from the German race, which Lilo would learn the hard way.

The Gleíchschaltung put in place on January 30, 1933 (a term that is translated as "bringing into line" but which rather means equalization, indexing, synchronization, parallelization, centralization, rationalization and purgation) finds an extension in the law of April 7, 1933, allowing the judiciary to be purged by stipulating that all people of the left and Jews are excluded from public service.

What applies to the public service will also apply to lawyers, notaries and magistrates. We then witness thousands of professional bans, which are sometimes carried out violently. In Prussia, Goering dismisses 28% of senior civil servants. Other targets of the purge: law professors in faculties. Lawyer Carl Schmitt agrees. In May 1933, he joined the Nazi Party.

Fritz Lang, like many others, decided to leave Germany. While he is in exile, he sees the intuitions of his film fulfilled in reality. In just a few months, an avalanche of laws and decrees has hit the country. The Nazi project is being put in place, and Hitler is not carrying it alone. In addition to Frick and Goering, Goebbels became minister of propaganda and Ernst Röhm head of the SA (Sturmabteilung).

Himmler is head of the SS and the Bavarian police. To reassure public opinion, the Ministry of Justice was left to the conservative Franz Gürtner. We also find loyalists from the start, such as Hans Frank, Hitler's former lawyer, and Roland Freisler, Secretary of State in Prussia. For them, law and justice are weapons to be used against the enemies of the German nation and race.

My comment, at this stage, would reflect a vision of the extreme right having in common with this radicalism a way of considering means of struggle on a legal level. The main difference is that the target of a political regime consistent with my ideas would not be racial. On the other hand, I would disapprove of Freemasons, people of deviant morals, immigrationists and the left.

As the documentary says, if the law is a weapon, it needs soldiers. Freisler called them the armored divisions of law, a warlike term which applied in particular to the young generation of Nazi jurists. Hundreds of law students about to graduate take the train to Jüterborg, ninety kilometers from Berlin, training physically for eight weeks in a camp.

In 1933, Frank was appointed to the government as Reich Commissioner, for bringing the legal order and the world of justice into line, and was also called upon to chair the Academy of German Law from 1933 to 1942. This is to train jurists, to support legal publishing, to prepare draft laws, but these functions take on a particular meaning here, since they serve a new ideology.

Within the academy, we find law professors like Schmitt, philosophers like Martin Heidegger, magistrates, jurists, and of course Freisler. We also find people without legal competence, appointed by simple political calculation, industrialists or renowned personalities. Frank is responsible for setting the tempo. On the ground, lawyers see their prerogatives called into question.

Some files contain notes against the methods of interference of the Gestapo, the state secret police. The independence of judges is threatened everywhere. Courts were created to punish new offenses defined by Nazi dogma. For example, given the importance of Blud und Boden (blood and land) in the ideology, the regime is interested in the hereditary transmission of farms.

An economic recovery plan was launched during the summer of 1933. Germany seemed to be coming back to life, a Germany where order remained the priority. On July 14, 1933, the NSDAP became the only authorized political party. On September 21, 1933, we witnessed the proper trial of the alleged Reichstag arsonists, but only Marinus van der Lubbe was convicted, following which a new court was created: the People's Court.

Thus, the Volksgerichtshof was decided on March 23, 1934 in Hitler's office, with four Nazi jurists. Popular common sense must serve as a compass. Hitler freed himself from ordinary justice. In the spring of 1934, Hindenburg was dying. From June 29 to July 2, 1934, Hitler ordered a series of arrests and assassinations against members of the SA. Its goal: to reassure in order to take absolute power.

The elites and the army were indeed wary of Röhm and his revolutionary ambitions. Goering and Himmler helped Hitler carry out the operation called "Night of the Long Knives". Best, working with Reinhard Heydrich, Himmler's second-in-command, led the purge in southern Germany. Under Heydrich's orders, he headed the intelligence service of the SS, the SD. Röhm himself ends up shot dead in his cell.

Hitler presents himself as a true statesman and, in his own words pronounced in the Reichstag on July 13, 1934 (repeating a decree of July 3, 1934), as the supreme judge of the German people, the operations to safeguard the State having a legal character, because it is good for the people. For Schmitt, the Führer protects the law. Hindenburg died in August 1934, Hitler became both chancellor and president.

After this absolute triumph of Hitler, Best will continue to rise in the hierarchy. The turn of events is also a success for the executioner Reichhart. Despite the Nazis' dislike of the French Revolution, Hitler appreciated the mechanical efficiency of the guillotine. On April 2, 1935, Gürtner took proud stock of the Gleíchschaltung. The next stage will be the biologization of law, the consequences of which we know.