Last week the biggest publishing house for German law literature announced that they will change the name of the most famous German law comments as well as an iconic collection of German laws. You might wonder why this is big news?
As with many things German this also has to do with our NS history. You see, many famous pre-1945 lawyers, attorneys, and law professors have had a not-so-secret Nazi past. Whereas that might shock you, it really shouldn't if you think about it. The only people that practiced or taught law during the second world war were if not members but at least affiliates of the NSDAP (Nazi party) or were in support of the nazi policies. Therefore, the only lawyers left after Germany's defeat to be able to rebuild the country were the same people that created, implemented, and upheld the Nazi system.
Many of these lawyers went on as before and had great careers despite their Nazi past. In many cases, they were even awarded by having comments and law collections named after them. Three of the most iconic ones are the "Palandt" a comment about German civil law and the "Schönfelder" a collection of all German civil laws, as well as the "Maunz/Dürig" THE comment on German constitutional law. Since Germany is a civil law country, comments are fundamental in interpreting laws and have the importance of case law in common law countries. Everybody that works in the law needs to have these comments and consults them on a daily basis. They are quoted left and right all over the German law field.
They are probably owned by any German lawyer. The "Schönfelder" even has to be updated every few months so you have to constantly buy new pages whenever the law changes. But who were Mr. Palandt, Mr. Schönfelder, and Mr. Maunz, and what did they achieve despite being name givers to the most iconic law books?
Otto Palandt was a judge and, from 1934 to 1943, president of the Reichsjustizprüfungsamt and in that function, he was responsible for the enactment of the new judicial training regulations, which declared Nazi ideology to be the goal of the training of new lawyers. "Fun fact," in addition to being a passionate Nazi he - unsurprisingly - also was an equally passionate Sexist. He believed it was „Sache des Mannes, das Recht zu wahren“ "Man's business to uphold the law". He died in 1951.
Let's move on to the next Nazi: Heinrich Schönfelder. If you have ever watched a German movie that showed a court scene, you might have noticed the big red book on the table of the judge (or anyone really.) That is the famous "Schönfelder" named after Heinrich Schönfelder. Schönfelder joined the NSDAP in 1933, later became an officer in the Luftwaffe and finally a war court councilor at German war courts in Italy. He was killed in 1944. He decided to give the German Civil Law (BGB) the number 20, which is surprising considering it is the most important civil law in Germany. Not for Schönfelder however, who prioritized the party program of the NSDAP as well as the Nuremberg Race Laws with the numbers 1-19. The BGB is still number 20!
Now let's turn our attention to Mr. Maunz. Theodor Maunz was a German jurist, administrative and constitutional lawyer, university lecturer in constitutional and administrative law, and politician (CSU) who died in 1993. He was part of a group of law teachers that strove to give legal legitimacy to the Nazi regime through their work by writing for example:
"The idea that the purpose of the administrative justice is to protect the sphere of freedom of the individual against measures of the state may have been justified in the liberal state, but in the National Socialist state, it must be eliminated. [...] The central legal entity, behind which all other legal entities must take a back seat, is the political leader."
Now after reading this it is very difficult to understand why these people are still honored as the authors of these works that have been changed many many times in the last 76 years. The publishing house C.H. Beck claimed that they kept the names because "one cannot make history unhappen." Obviously, one cannot but it is laughable to assume any German lawyer (or any German for that matter) could ever forget the crimes committed by our ancestors. Especially for a German lawyer the cruelty of the Nazi state looms everywhere. Most of our laws and especially our constitution (including our fundamental rights) are created in response to the Nazi state. Therefore, the argument we could forget our horrible past if it weren't for the names of these law books is ridiculous. Furthermore, the Nazi past of these authors is completely ignored in German law school. No one seems to be interested in shedding light on this very dark chapter of German legal history.
Now some people say that these men founded the comments and law collections. Why should they not get acknowledged? I would argue that there have been many other authors (more than 30 for both Palandt and Maunz/Dürig ) that have put all their brainpower into that comment and still go unacknowledged. How is that fair? For the Schönfelder it is even worse: It is only a collection of laws that are changed by the parliament all the time. Why does it need to be named after a person at all? Furthermore, as a nation, we Germans agree that Nazis should not get credit for anything they might have achieved in their life because the outrageous crimes they committed outweigh any potential good. Considering that we are talking about LAWYERS that helped legalize these outrageous crimes - when they should have been the backbones of a just society that is founded on the rule of law - it is unbelievable that it took 76 years to erase these Nazis from our law books.
The "Palandt" will now be named after the judge at the Federal Court of Justice (BGH) Dr. Christian Grüneberg, which will be published in November 2021. He is the current coordinator of the authors of the commentary. The other works in question will also each be given a new name with the next planned edition. The "Maunz/Dürig" will be called "Dürig/Herzog/Scholz" in the future, and the "Schönfelder" will be named after the editor and chairman of the Standing Deputation of the German Jurists' Conference, Prof. Dr. Mathias Habersack.
This change came about due to the hard work of associations like the "Initiative Palandt umbennen" - "Rename the Palandt” which has been tirelessly lobbying for the name change for many years.
It took 76 years. Too long!
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