When Gatekeepers of Justice Leverage the Law to Abet Injustice

By Abraham Cooper and Yitzchok Adlerstein*

In keeping with democratic Germany’s commitment to combat anti-Semitism, a court in Essen ruled last year that chanting “death and hate to Zionists” at a demonstration was an illegal anti-Semitic activity. Unfortunately, however, there are other German judges today who subvert that commitment by ignoring common sense, morality, and history.

We refer to a decision by the Wuppertal court, recently upheld by a regional court, found that the three Muslims who set fire to a synagogue did so as an act of political protest against Israel’s actions in the Gaza War, and therefore could not be convicted of anti-Semitism. As Prof. Alan Dershowitz put it, “The idea that attacking a synagogue can be justified as an anti-Israel political protest rather than anti-Jewish hate act, is as absurd as saying that Kristallnacht was merely a protest against poor service by Jewish store owners.” Or, we might add, torching a mosque could be considered a protest against ISIS. Or desecrating the Cologne Cathedral might be dismissed as a consequence of long-simmering discontent over the medieval Crusades.

Common sense and Jews are not the only victims of this court. It has twice dismissed charges against a group of local Salafists who enjoyed patrolling the streets with jackets announcing themselves as Sharia Police, and warning locals not to defy Islamic practice though music and alcohol. The court found their actions not “suggestively militant,” and lacking “intimidating effect.” One of the accused was on trial for supporting a terrorist organization. Had they beheaded someone, that court undoubtedly would have ruled that they were merely testing their shaving apparatus.

At a pivotal moment in German and world history, German jurists—far from using the law to protect the persecuted, first turned a blind eye to the way laws that destroyed millions of lives were made, then eagerly confirm Nazism’s absolute evil as binding law. From the outset of the Third Reich in 1933, German judges formulated and presided over the Rassenschutzgesetz, which allowed Jews, Roma, Poles, Russians and other untermenschen to be legally recognized as less than human. The judiciary perverted the old Rechtsstaat, meant to protect the citizen against the power of the State, and turned it into the legal basis for the eventual murder of millions. It became a willing vassal of an empire of death and destruction, quickly dispatching Stauffenberg, Bonhoeffer and any other German who resisted to quick and painful execution – all under the banner of the law.

In the aftermath of WW II, the very same judges maintained their moral perch above postwar society. While many sectors of public life worked to prevent the stain of Nazi thought from blackening the German future (including purging Party members from teaching social studies in German schools), the legal sector often protected Nazi criminals from prosecution again and again.

The numbers confirm this. A full 77 percent of senior Justice Ministry officials in the late 50’s were former Nazi Party members, exceeding the percentage during the War itself. In fact, according to the recent Rosenburg Project, between 1949 and the early 1970s, 90 of the 170 top ministry officials were former Nazi Party members. Absent were judges who had belonged to the Resistance, or who had spent the War in exile.

Many friends of Germany are worried that some gatekeepers of German law may once again be using the law to open the gates of hell. The target today is once again the Jews. Providing a moral and legal free pass to attack a synagogue is quintessentially anti-Semitic, and seen as such by the rest of the world.

Meanwhile, the Federal Constitutional Court ruled that the National Democratic Party, despite embracing positions opposed by Germany’s Constitution, could not be banned because it was not a threat to democracy. The rest of the world – and many Germans – looks on in horrified disbelief, remembering that this was exactly what they said about the Nazi Party and Hitler in 1933.

In the middle of the 19th century, the great Rabbi Samson Raphael Hirsch of Frankfurt saw the subversion of the law as a greater threat to civilization than disobeying the law:

When the world is corrupt before G-d, all the human institutions and laws of society cannot prevent society in general from going to ruin…By open robbery it will never fall. It knows how to protect itself against that by prisons and penalties…But by underhanded dealing by cunning, astute dishonesty, craftily keeping with the letter of the law, it does go to ruin.

The Bible declared “Justice, Justice thou shall pursue”. A 16th century Holy Roman Emperor of the House of Habsburg chose as his motto “Fiat justitia et pereat mundus – let justice be done, though the world perish.” From ancient times to contemporary democracies, the law speaks its truth, while societies rise and fall on how well its gatekeepers—the judiciary -- protect those inconvenient truths.

When gatekeepers not only fail to deter tyranny but subvert it, using it to bludgeon the innocent and helpless, the gates of hell are thrown open. The millions dispatched by Stalin and Mao; the 13,000 Syrians recently hanged by Assad - all had “trials” before being murdered. And in 2017, some German judicial robe-wearers are emerging as the BFF for a resurgent neo-Nazism.

Concerned Germans would be well advised to look to other institutions beyond the judiciary to guarantee their democratic future.

*Rabbis Abraham Cooper and Yitzchok Adlerstein are the Associate Dean and Director of Interfaith Affairs at The Simon Wiesenthal Center

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