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How the RAV emerged(1)

A RECONSTRUCTION(2)

INGO MÜLLER

The Republican Lawyers Association, founded on 11 February 1979 in the Stadthalle Hannover, was deliberately intended to tie in with traditions of the Weimar Republic that had long been buried. It was not by chance that the name was copied from that of the Republican Association of Judges (1921-1933), and not only the name, but also the organization. When Judges’ association began work in December 1921, its founding members included not only judges but also university lecturers such as Gustav Radbruch and Wolfgang Mittermaier, trade union lawyers such as Hugo Sinzheimer and lawyers such as Ludwig Bendix and Ernst Fraenkel. They were united in their fight for democracy, and they were a small minority among the almost entirely republican judicial lawyers. But the legal profession at that time was dominated by liberal colleagues of Jewish origin: Max Hachenburg, Julius Magnus and Hermann Staub set the tone in commercial law, while the reflection on the foundations of law, soon to be called sociology of law, was mainly conducted by lawyers such as Martin Beradt, Ludwig Bendix, Erich Eyck, Ernst Fraenkel, Friedrich Großhut and Hugo Sinzheimer, also known as the founders of German labor law. The theoretical foundation of the freedom of lawyers was a monopoly of the lawyers, especially the Jewish ones: Siegbert Feuchtwangers basic work Die freien Berufe. Im besonderen die Anwaltschaft (›The liberal Professions. In particular, the Lawyer‹), Julius Magnus’ Die Rechtsanwaltschaft (›The Legal Profession‹) as well as the commentary of the brothers Max and Adolf Friedländer on the bar code described free bar practice and defended it against attacks that had never been lacking since 1879. Max Alsberg, Alfred Apfel, Max Hirschberg, Philip Loewenfeld, Paul Levi, Hans Litten, Rudolf Olden and Kurt Rosenfeld fought the often futile battle for the republic, against an escalating political justice system and against various right-wing terrorist organizations. In addition, many of the lawyers were writers, aesthetes and specialists, publicists and journalists, a connection between spirit and law never again achieved in Germany. All these lawyers were close to the republican judiciary, if not members.

GLEICHSCHALTUNG - ALSO IN THE POST-WAR PERIOD

This came to an abrupt end following the Gleichschaltung of the press, including the legal press, in the wake of the Reichstag Fire Ordinance and after the Act on Admission to the Bar on 7 April 1933 decreed the dismissal of the non-Aryan and politically unpopular lawyers. In the following period, the legal profession lost about one fifth of its members, the liveliest, democratically committed and brilliant ones. Within the Supreme Court even about half of them. To this day, German jurisprudence has probably not recovered from this loss of legal culture.
The memory of this lawyer culture and of the left-liberal Judges’ Association has been suppressed for over forty years. The legal profession, unlike the public service, had not been denazified after the end of the Third Reich, on the contrary: Nazi lawyers, who were heavily burdened and could not or did not want to continue working in the public service switched to the legal profession. In the post-war decades, anyone preparing for legal examinations in northern Germany had a choice between Curt Rothenberger in Hamburg, former State Secretary in the Reich Ministry of Justice in 1942/43, and Ernst Lautz in Lübeck, former Chief Reich Attorney at the People’s Court.
Although the legal profession was hardly involved in the tremendous justice crimes of the Third Reich, it was also forced into line, and it remained so in the post-war period. Most of the Jewish and democratic lawyers were dead, and many of the expellees remained in exile. What also did not return were spirit and legal culture, for with the people their theories and thoughts had also been expelled, as had the idea of free criminal defense. The right-wing front continued to set the tone The right-wing front continued setting the tone and glossing over, belittle or even denying the injustice that had happened. Max Alsberg’s standard work Der Beweisantrag im Strafverfahren (›The Application for Evidence in Criminal Proceedings‹), a passionate plea for the defense lawyer’s right to evidence as his only weapon, is an example of how the legacy of liberal lawyers was dealt with. It had been sorted out and destroyed as Jewish ideas from the court and university libraries and, what is worse, had been handed over to a public prosecutor in the Federal Republic for revision. In 1983, the fifth edition appeared, now continued by a conservative criminal senate chairman at the Supreme Court, mutilated, maimed and with the opposite tendency. Although there has been a revision by three younger practitioners of criminal law since 2013, the work has not recovered from the post-war revision.
In the Federal Republic it took about 25 years until a new generation, shaken by the revelations of the Jerusalem Eichmann trial and the Frankfurt Auschwitz trials, rebelled against the generation of Nazi perpetrators and followers and no longer allowed itself to be fobbed off with the phrase: ›Go to the other side, if you don’t like it here‹. The very generation that had wrecked half of Europe to rubble and ashes and turned Germany into a heap of ruins, of all people, said to the rebellious youth: ›We won’t let you destroy what we have built here‹. At the universities, for the first time, students took up the early works of their previously so leniently treated teachers, and their eyes went over. In addition, a series of political events and scandals sharpened the consciousness of the next generation. The Spiegel affair of 1962, the Federal Government’s audacious attempt to silence a critical press organ for alleged treason via the police and judiciary, drove a critical, mostly student, public out onto the streets for the first time. In 1965, the Federal Supreme Court rejected the opening of the main trial, but the Constitutional Court refused - the vote was 4 to 4 - to establish a violation of press freedom.
When in 1966 Union parties and the SPD formed a grand coalition, under the chancellorship of a former NSDAP member, and there was no parliamentary opposition other than the small FDP faction, the protests against this government received their name: Extra-parliamentary opposition – APO for short. The government’s main project, emergency legislation, mobilized protests from hundreds of thousands of people for the first time.

A CONSTITUTIONAL STATE FAILS - GRANDIOSELY

The book Persia, Model of a Developing Country by Free University assistant Bahman Nirumand was published in the spring of 1967. As if for an illustration of the brutality of the Iranian oppression apparatus described in this book, Shah Reza Pahlawi appeared shortly thereafter on a state visit to Germany, followed by his wife Farah Diba and dozens of secret service men who beat demonstrating students with wooden slats on the occasion of the obligatory visit to Berlin on June 2, 1967. The situation escalated, a Berlin police officer shot the student Benno Ohnesorg. This radicalized the protest again, especially since the police chief Kurras was acquitted shortly afterwards because of »Putativ-Notwehr-Exzesses« (putative self-defense excess) and promoted to chief master.
The escalating war of the USA against communist North Vietnam in the mid-sixties and its pressure against socialist Cuba led to solidarity with the Third World countries. The police and the judiciary reacted with unrelenting severity, so did the press - not only those of the Springer group – with inflammatory campaigns that had not been considered possible since Julius Streicher and Josef Goebbels. Representatives of the older generation in justice, administration and science – the Nazi jurists were on the verge of retirement and continued to dominate the universities as rectors and deans (Eberhard Schmidt, Theodor Maunz, Erich Schwinge) – fought back as hard as they could. In the meantime, the front officers of the World War had taken over the staff positions. They all reacted, as they had learnt, with repression and unteachability and thus offered new grounds for protest. In 1968, the Berlin Criminal Senate of the Federal Supreme Court also overturned the only conviction of a murder judge of the Third Reich. Soon afterwards, a Berlin jury court finally acquitted Hans-Joachim Rehse.
At the beginning of the 1970s, the very heterogeneous, sometimes cheerful united student-protesfront disintegrated into innumerable communist parties and groups, cells and conspiratorial circles. All of them of great verbal militancy, all in possession of the only truth and some also ready to use violence up to the murder of alleged enemies of the people.
The establishment – as it was then called – had quickly overcome an initial uncertainty and fought back in an organized manner. It was precisely under the leadership of a Federal Chancellor persecuted by the Nazis himself that the prime ministers decided to counter the march through the institutions propagated by the APO with a rigid prohibition on all left-wing junior staff, not only for the public service but also for the legal profession. Appropriately, they made use of the ›guarantee clause‹ once used in the law on the restoration of the civil service: the applicant had to offer a guarantee to stand up for the free and democratic constitutional order without reservation at all times, according to the understanding of the Verfassungsschutz (Office for the Protection of the Constitution), which always had to be involved in recruitment.
The persecution of anarchist perpetrators of violence created a hysteria in the public eye, towards which today’s reaction to Islamist acts of terror seems deliberate and calm. Even those who called the RAF the ›Bader Meinhof Group‹ instead of the ›Gang‹ made themselves suspicious of sympathy. The oppressive atmosphere of that time is well captured in films like ›Deutschland im Herbst‹ (Germany in Autumn) and ›Die bleierne Zeit‹ (The Leaden Time), depressing documents of a severe crisis of democracy and the rule of law in Germany.
The terrorist attacks by the RAF and related organizations were rightly described as a challenge to the rule of law. It could have been its test, but it failed terribly. The trial conducted at the Stammheim prison before the Stuttgart Higher Regional Court developed more and more into a place of the skull of the German rule of law, from the machinations in the Senate Chairman to numerous defender exclusions including honorary court and criminal proceedings, permanent adjustments of the Code of Criminal Procedure to the necessities of this trial and a campaign instigated by the Federal Ministry of Justice and the Federal Prosecutor’s Office against the criminal defenders working there. A whole series of so-called anti-terror laws enriched the Code of Criminal Procedure with the exclusion of defense lawyers, the prohibition of double defense, the separating disc and the contact ban, not to mention extra-legal measures such as forced defense and eavesdrop- ping on defense lawyers’ conversations. Every new terrorist act has given rise to new criminal procedural rules and a further shortening of defense lawyers’ rights. In June 1978, Chancellor Schmidt said that peace had to be restored and that new laws were not necessary. FDP chairman Genscher resigned after his party had lost two regional held elections and claimed, politics will return to liberalism and the rule of law.
But when terrorists blew a hole in the outer wall of the Celle prison on 25 July 1978, apparently in order to forcibly liberate RAF comrades imprisoned there, this attack on our constitutional state again prompted the Bundestag to intensify its legislative work. Eight years later, Prime Minister Ernst Albrecht had to admit that the Lower Saxony Office for the Protection of the Constitution had blown up the prison, justified by a ‘supra-legal ›state of emergency‹.

›LAWYERS OF TERROR‹

At the end of the 1970s, the then centennial Code of Criminal Procedure had finally reached a state that offered the Federal Office for the Recognition of Foreign Refugees an alibi for handing over politically persecuted Kurds to the infamous Turkish military judiciary:
»The Federal Office has before it a comprehensive report from the Max Planck Institute, including a synoptic comparison of Turkish military procedural law with the German Code of Criminal Procedure. This comparison shows a broad agreement, in part even a more liberal design of Turkish military procedural law [...]«. (Frankfurter Rundschau, 09.12.1982).
The crisis of the rule of law in the early 1970s was not limited to legislation and criminal jurisdiction; it also manifested itself in an inhuman asylum case law of the administrative courts and did not stop at the Federal Constitutional Court. In the early seventies, the rule of law and civil rights increasingly appeared as security risks for this court as well. One may argue about which decision is the worse, the interception decision of 15 December 1970 (»it cannot be the purpose of the Constitution to deprive the constitutional organs and the Office [for the Protection of the Constitution] of the means necessary to fulfil their constitutional mandate«) or the prohibition decision of May 1975 with its duty for the civil servant »to feel at home here at all times«. However, in the NCO Decision of January 1970 (Unteroffiziers-Diskussions-Entscheidung), which was won by the founding members of the RAV, Heinrich Hannover and Rudolf Monnerjahn, the court had already reinterpreted the fundamental rights into basic duties and established that »the Federal Republic expects its citizens to defend the liberal order and does not accept an abuse of the fundamental rights [...]«. In a discussion of the emergency laws, a sergeant of the German Armed Forces had said that one could no longer even express one’s opinion with impunity in the Federal Republic. With this statement he imposed a disciplinary penalty on himself, and to his constitutional complaint the second senate judged as follows: »The expression of opinion that we would be punished for expressing opinions defames the liberal constitution and is so obviously inaccurate that one is rightly punished for it«. With this fine dialectic, the court even managed to reject the constitutional complaint and, at the same time, fully uphold the complainant.
The background music to the anti-terror legislation was a publicist offensive against the ›lawyers of terror‹ initiated by the Federal Ministry of Justice and the Office of the Attorney General of Germany. As early as 1972, the later Attorney General Buback had asserted in an interview with the magazine Stern that »the acceptance of such mandates is contrary to one’s status«. In the Bundestag’s security debate of 13 March 1975, Justice Minister Vogel was convinced that »no one denies that defenders have abused contact with prisoners on remand and that this abuse is dangerous«. Franz Josef Strauß, a member of parliament, saw the Stuttgart-Stammheimer defense bench as a »forum for the dissemination of the terrorist philosophy of the Bader-Meinhof Gang«, and the Bavarian Minister of the Interior, Merck, found it »incomprehensible and unbelievable that there is no safer place for terrorists [...] than in the prison cells, where they can control terrorist actions [...] undisturbed by conspiracy and with the help of their lawyers«. Bild reported that the defense lawyers as »postmen for bombers and police murderers smuggle the instructions from cell to cell«, and the Hamburger Morgenpost knew that the lawyers »want to make politics over the corpses of their clients«. The Office of the Attorney General of Germany made extensive use of the possibilities to expel defenders and applied for their expulsion in almost every case in terrorist proceedings, at least if he dared to step out of the legal law-abiding front (Rechtswahrerfront). In addition, criminal and honorary court proceedings were instituted against all alleged left-wing suspected lawyers, in 1977 alone against the lawyers Eschen, Elfferding, Ehrig, Goy, Groenheit, Heinisch, Hoffmann, Moser, Panka, Reme, Schöndienst, Spangenberg and Ströbele (Berlin), Groenewold, Köhnke, Maeffert and Rogge (Hamburg), Maiergünther (Kiel), Düx, Golzem, Kempff, Knöss, Koch, Kopp, Oberbinder, von Plottnitz, Riedel, Themming and Weidenhammer (Frankfurt/M.), Becker and Härdle (Heidelberg), Baier (Mannheim), Heldmann (Darmstadt), Arnsberger, Croissant, Müller and Newerla (Stuttgart), Gildemeier (Augsburg), Bahr-Jendges, Hannover and Tönnies (Bremen), Arnold, Bendler, Langmann, Montag, Niepel, Wächtler and Wolff (Munich) as well as Fischer (Cologne). Hans-Heinz Hellmann reported that he had received the prosecution’s accusation documents »as regularly as the supplementary deliveries for the Law Collection«.

WERNER HOLTFORT AND THE RAV

Many of the above are among the founding members of the RAV. The driving force behind the founding of the new lawyers’ organization, the Hanover lawyer Werner Holtfort, did not have the experience of a Stammheim defense lawyer, but his own. The vice-president of the bar association at the OLG Celle and president of the local notary chamber flirted with his thoroughly bourgeois past and gladly introduced himself as follows:
»Born 1920, married. Multiple wounded and decorated front officer. Studied law and political science, economics, philosophy and history. Attorney since 1955, notary since 1960. thriving law firm in Hanover [...] November 1972 Federal Cross of Merit First Class«.

In 1965, Holtfort had to examine the application for admission of the lawyer and tax consultant Dr. Schmidt-Rux as a rapporteur on the board of the Celle Bar Association, in particular with regard to his worthiness. At that time, tax consultants were regularly refused admission to the bar, and Schmidt-Rux’s past also had to be examined. But since he was only a member of the senior government council of Gdansk’s financial administration in the Third Reich, Holtfort had no objections to asserting Schmidt-Rux’s admission against the arrogance of his colleagues on the board, as he was also president of the Chamber of Tax Consultants and close advisor to the newspaper publisher Luise Madsack.
Ten years later, the magazine Stern revealed Schmidt-Rux’ true identity. In reality, his name was Schmidt-Römer and he had been the office manager of Martin Bormanns, the head of the party office, secretary to the Führer and, since 1941, after Rudolf Heß’ air trip to England, de facto Hitler’s deputy, who had been sentenced to death in Nuremberg in absentia. Schmidt-Römer had the rank of Reichsamtsleiter, one of the highest functions of the NSDAP. Holtfort applied for the revocation of the admission to the bar in accordance with § 14 of the Rechtsanwaltsordnung (bar code), since Schmidt-Römer had obtained it by fraudulent means. The application proved to be a stab in the wasps’ nest. The majority of the Bar Association rejected the revocation of the admission, with the vote of the Chamber President and former local group leader of Celle being decisive, and applied to the Attorney General for an honorary court proceeding against Holtfort. Now a campaign began in which the most influential Hanover-based lawyers, including Josef Augstein, brother of the publisher of Der Spiegel, and Erich Bartsch, Secretary of State for Justice, took part. The Augstein office sent anonymous pamphlets, mostly ridiculous verses, one of which ended with the words: »My God, Werner, stay at home. You look worse and worse. Blow off the funeral march, otherwise you’ll get fire under your ass«. There were nightly calls and death threats against Holtfort as well as two arson attacks, due to which his car burned out and his garage close to his house caught fire. When the local press reported about the fire, among other things with a photo of Holtfort, this gave rise to another trial of honor, this time for forbidden advertising. Holtfort’s resigned as president of the Chamber of Notaries preceding his planned deselection. He also withdrew from the board of the bar association.
After a working group initiated by Holtfort drew up principles for defense activities and referred to the programmatic writings of Franz von Liszt, Max Alsbergs and Max Güdes (the former Chief Federal Prosecutor and CDU legal politician), the Richterbund (Judges’ League) and Anwaltsverein (bar association) defamed them as ›Marxist‹ and ›East Zonal‹. After the equally polemical and mediocre classification as ›class struggle‹ by the Göttingen-based professor of criminal law, Hans-Ludwig Schreiber, and his student Werner Beulke, Holtfort, in his programmatic essay ›Ein Stück Gegenmacht – zur Rollenfindung des Rechtsanwalts‹ (›A Piece of Countervailing Power – on the Role of the Lawyer‹), correctly stated: »In the dispute over the concept of organ of the administration of justice, it is not socialists and capitalists who face each other, but supporters of the authoritarian state and those of the liberal constitutional state«.
Since almost all criminal and honorary court cases were directed against defense lawyers, local and regional defense associations and initiatives were formed to resist reprisals and the ever-new ›anti-terror law packages‹, which served not so much internal security as the dismantling of defense rights in criminal proceedings. In May 1977, the defense initiatives met for the 1st Strafverteidigertag in Hanover. The meeting was sabotaged to the best of its ability by the German Lawyers’ Association, and at the 2nd Strafverteidigertag, in early May 1978 in Hamburg, the 350 participants decided to »bring about a nation-wide union of all consistently liberal lawyers«. On 10 and 11 February 1979, the Nationwide Lawyers Association for the Defense of Free Law was founded, which a little later adopted the name Republican Lawyers Association in connection with the tradition of the Republican Judges Association. Like the former Judges’ Association, the new Bar Association was open to those who were not familiar with the profession, and its members were judges (about fifty percent), legal scholars and lawyers. The colleagues Holtfort, Hannover, Driest, Eschen, Groenewold, Husmann, Preuß, Wächtler and Schily formed the first executive committee. In a blazing appeal to the »dear comrades«, Werner Holtfort, Deputy Chairman of the Association of Social Democratic Lawyers, and Gerhard Schröder, Chairman of the Young Socialists (Jusos), called on the Social Democrats to join the association. Schröder himself resigned shortly afterwards due to a lack of contribution payment.
This did not harm the RAV, which later re-named itself into Republikanischer Anwältinnen- und Anwälteverein to highlight its gender sensitivity. Nor did it harm the RAV that it was called ›Holtfort-Verein‹ for some time because of the initially dominant position of its first chairman. Without Werner Holtfort, Chairman from 1979 to 1986, then ›Honorary President‹ until his early death on 16 April 1992, the RAV would not have been founded, and on its 40th birthday one should remember this once again.

Dr. jur. Dr. phil. Ingo Müller is a retired professor of criminal law and criminal proceedings at the Hamburg Police College,  a founding member and long-standing board member of the Forum Justizgeschichte, winner of the Carl von Ossietzky Prize of the City of Oldenburg; numerous publications on contemporary legal history, in particular on justice in the Third Reich and in post-war Germany. The original German version has been published in: V. Eick/J. Arnold (Hg.), 40 Jahre RAV. Im Kampf um die freie Advokatur und um ein demokratisches Recht. Münster 2019.Translated from German language by Volker Eick.

(1) Revised version of a keynote lecture on the occasion of the 25th RAV anniversary.
(2) Underheading and subheadings have been inserted by the editorial staff.