Apples and Oranges. Maarten Asscher
One might be inclined to wonder where Cleveringa picked up his sense of moral direction. What gave this reputable and meticulous jurist such certainty in the face of historical danger and human injustice, while many other equally reputable and meticulous jurists (and non-jurists) were of the opinion that it was better, all things considered and ‘to prevent worse’, to stay in their jobs and try to make a difference in silence while continuing to support their families? What constitutes the ‘Cleveringa factor’, the factor that transformed this circumspect expert in mercantile and maritime law, to quote Kees Schuyt, into ‘an icon of intellectual resistance against oppression and inhumanity’?
There probably is a biographical or historical answer to these questions, although such would demand detailed research. A psychologizing answer might also be possible, although it would remain speculative by its very nature. To my mind, however, it would be more in the spirit of Cleveringa to suppose that this ‘Cleveringa factor’ is present in everyone, at least in theory. After all, wasn’t everyone convinced to a greater or lesser degree that the decision of the anti-Semitic Nazi regime occupying the Netherlands to employ official forms to identify Jewish civil servants was only the beginning of something much, much worse? Everyone must surely have realized how unfair it was to treat students, who had signed a promise in their late teens or early twenties that they would behave themselves towards the authorities, as if they were traitors and collaborators. And wasn’t it painfully obvious to every Dutch jurist worth his or her salt that the reappointment of a senior justice who had spent four years of the occupation ‘accommodating’ the Germans was a slap in the face of the victims of persecution, the men and women of the resistance and other ‘loyal patriots’? In short, it’s not so much a question of our capacity to distinguish between right and wrong, it’s more about what we actually do when confronted with this difference.
Perhaps the best way to illustrate the ‘Cleveringa-factor’ is to present it in contrast to another figure representing the opposite end of the spectrum, someone we might identify in this regard as an anti-Cleveringa; a brilliant jurist who travelled a diametrically conflicting path, namely that of evil, of amorality, of totalitarian opportunism; a jurist who was the same age as Cleveringa—they were born only five months apart—and whose illustrious legal career in Germany was equal to that of Cleveringa in the Netherlands; a man whose prominence on the black pages of twentieth century legal history is just as conspicuous as Cleveringa’s on the white.
His name is Roland Freisler. After taking his finals at the Wilhelmsgymnasium in Kassel in 1912, he turned his scholarly attention to the study of law at the University of Jena, which he interrupted in 1914 to serve his fatherland and volunteer for military service. He was taken prisoner by the Russians on the Eastern Front in 1915, and it is probable that he returned to Germany only in 1920. He defended his dissertation in Jena two years later—on the foundational principles of industrial organization—and graduated as a Doctor of Law. He set himself up in legal practice, and via his defense of a number of NSDAP members (Nationalsozialistische Deutsche Arbeiterpartei—known in English as the Nazi Party) he became involved with and joined the party in 1923.
In addition to his legal practice, Freisler was politically active from 1925 onwards, first as city councilor in Kassel, later as a member of the Prussian Landtag (State Parliament). Senior civil service appointments at the Prussian Ministry of Justice paved the way for his promotion to Secretary of State in the Reichsministerium für Justiz after the Nazis seized power in 1933. In this position, he participated in the infamous Wannsee Conference in January 1942. As head of the criminal law department of the Academy for German Law, moreover, he also contributed to the formulation and development of a penal code adapted to the Nazi social order. In that system – and I limit myself here to simple and constitutional terms—the interests of the German nation transcended those of the individual. The will of the German people was embodied in the country’s leader, thus focusing absolute legislative, executive and judiciary power in a single person.
One consequence of the National Socialist vision of society and law was the existence of the so-called Volksgerichtshof or People’s Court in Berlin. The Volksgerichtshof was first established by Adolf Hitler in 1934 out of dissatisfaction over the outcome of the Reichstag Fire case. Two years later, the court’s jurisdiction was extended from instances of treason and high treason to the adjudication of political crimes in general, activities, in other words, that the Nazi regime considered undesirable. Of this Volksgerichtshof Dr. Roland Freisler became president on August 20th, 1942.
The Volksgerichtshof consisted of a number of chambers (referred to as ‘senates’), each of which consisted in its turn of two professional judges appointed by Hitler and three lay justices. It goes without saying that the latter were always faithful party functionaries. Suspects were not allowed to choose their own lawyer, legal proceedings were conducted and settled at a furious tempo, and Freisler himself devoted much of his energy during court sittings to intimidating suspects as much as he could and disconcerting them. The thousands of people condemned to death by the Volksgerichtshof during the years of the war included men and women who were active in anti-Nazi resistance, such as the members of the Die Weisse Rose or The White Rose, the Rote Kapelle or the Red Orchestra and the Kreisauer Kreis or Kreisau Circle. The conspirators responsible for the failed attempt on Adolf Hitler’s life on July 20th, 1944 were also tried by Roland Freisler’s Volksgerichtshof. A number of recordings of the interrogations can be found on YouTube, filmed in the courtroom itself on Hitler’s orders. The restructuring of the administration of justice to accommodate political terror went so far that not only those who committed or contemplated armed resistance were brought before the Volksgerichtshof. In addition to treason, deeds and statements that were considered ‘a threat to the defensibility of the German nation’ were sufficient to occasion a summons.
One example from among very many relates to the gifted Dutch pianist Karlrobert Kreiten, who had studied under Claudio Arrau, among others, and performed with success under the baton of Wilhelm Furtwängler. During a concert series in Berlin in 1943, Kreiten stayed with a childhood girlfriend of his German mother. During dinner, however, he made a few negative remarks about Adolf Hitler, describing him as shameless, sick, deranged. The lady of the house considered it her National Socialist duty to ask the advice of a couple of friends as to whether she should take the matter further. The ladies thought she should, and as a result an official complaint was lodged that led to Kreiten’s arrest on May 3rd, 1943, the eve of a concert he was scheduled to give in Heidelberg. He was held in custody for four months and then sentenced by the First Senate of the Volksgerichtshof, under the chairmanship of its president, Roland Freisler. The court condemned him to death. Appeals for clemency, petitions, and even a personal intervention on the part of Wilhelm Furtwängler, were to no avail. Kreiten was executed on September 7th in Berlin’s Plötzensee prison, one of the thousands of victims of a perverted legal system appropriately styled Terrorjustiz or justice by exercising terror.
Roland Freisler was the personification par excellence of such German Terrorjustiz. He was fanatical, prejudiced, and inclined to indulge in long humiliating tirades against the suspects who appeared before him. The shrieking voice that carried his tirades earned him the nickname ‘raging Roland’, and the technicians charged with recording court proceedings had a hard time regulating the volume in such a way that he could be understood. He did not permit suspects to appear in court clean shaven and even insisted on occasion that their belts and suspenders be confiscated, leaving them scruffy looking and down at heel. He thus ranted against retired army general Erwin von Witzleben—one of the men involved in the attempted assassination of Hitler on July 20th, 1944: ‘You dirty old man. Why are you constantly fiddling with your pants?’
Rudolph Pabus Cleveringa and Roland Freisler. It’s almost painful to reference both names in a single sentence. While they may have been contemporaries, their lives were poles apart. Nevertheless, they were both eminent jurists, and both, by coincidence, specialists in mercantile law and procedural law. One worked as a company lawyer, the other as an attorney; both were judges and both were professors of law. If Freisler symbolizes absolute zero on the justice scales then Cleveringa must surely represent the highest point thereof. Confronted by such extremes, one is inclined to wonder whether it is even possible to include both these jurists under a single system of morality.
Perhaps