During the Nazi era (1933–45), German criminal law assumed a very different character, moulded by the regime's ideology.Footnote 1 One reading of this radical transformation is that it constituted a dramatic change of direction, only to collapse along with the fall of the regime. However, Nazi criminal law neither emerged from a vacuum, nor did it completely disappear after 1945. This is the gist of the so-called continuity thesis, which I defend elsewhere.Footnote 2 Indeed, Nazi criminal law did not only continue earlier authoritarian tendencies of German criminal law but even exacerbated them – the so-called radicalisation thesis. Perhaps the most prominent and horrific example of this radicalisation is the Nazi euthanasia programme in carrying nineteenth century social-Darwinist and biologist thinking to its deadly extreme.
This article focuses on Nazi, and thus German criminology, but this does not mean to imply that criminology is a ‘nationalist’ discipline. On the contrary, criminology operates transnationally as a cross-cultural enterprise and this becomes clear if one studies Nazi criminology, for example, in its reliance on the Italian positivist school, especially Lombroso, as demonstrated in Section 3. Similarly, while this article does not focus on the human rights dimension of criminology in general and Nazi criminology in particular, this is not to say that such a dimension does not exist or is of minor importance. Indeed, there are various human rights norms which concern the criminal justice system and thus deserve to be analysed from a criminological perspective,Footnote 3 although this is outside the scope of this article.
Instead, the article will demonstrate how German Nazi criminology, similar to German criminal law, constituted, mutatis mutandis, a continuation and radicalisation of earlier explanations for crime. Both the continuity and the radicalisation theses stand in stark contrast with the ‘rupture thesis’ favoured in Anglo-American academic discourse. This thesis holds that Nazi (criminal) law constituted an historic aberration which departed from previous German traditions and contemporary explanations of criminality.Footnote 4 Given the continuity of Nazi criminal law, it should not lightly be dismissed as ‘non-law’, thus omitting any further engagement with it.Footnote 5 In fact, anyone who makes the effort to understand the functioning of the Nazi criminal justice system, studying its structural and theoretical underpinnings, will quickly realise that both the rupture and the non-law theses need to be corrected.Footnote 6
It should also become clear from this article that Germany's ‘New Right’, represented at all (federal, state and local) parliamentary levels by the Alternative für Deutschland (AfD) party, has a perspective on criminal behaviour and the state response to crime which is not novel but can be traced back to the ideologically infused theories and policies of Nazi criminologists during the 1930s. This is evidenced by various legislative initiatives at the federal and state levels.Footnote 7 In fact, this New Right, especially its Nazi-like, völkisch ‘wing’ (Der Flügel),Footnote 8 openly embraces a racist-geneticFootnote 9 and ethnic-biologistic agenda of superiorityFootnote 10 and employs supposed criminological insights in doing so, in a similar way to Nazi criminologists such as Helmut Nicolai, to whom we now turn. In ideological terms there is thus nothing ‘new’ about this ‘Right’; rather, it is a Nazi-like, völkisch movement in the modern garb of the internet age.
2. Nazi Racism, Criminal Biology and Continuity
In as early as 1932, Helmut Nicolai had already attempted to provide a populist philosophical foundation for National Socialist (NS) racial theoryFootnote 11 in his Foundations of a National Socialist Legal Philosophy,Footnote 12 in which he invoked supposed criminological findings according to which the crime rate is dependent on ethnicity: ‘crime rates show that criminality is lower the more Nordic and Germanic the population’.Footnote 13 Therefore, Nicolai argues, NS criminal law should be used first and foremost against those who do not belong to this ethnic group, for their ‘legal conscience’ is not ‘unadulterated’, and their ‘predisposition’ leads them ‘down the path of dishonourable crime’, which is why they need to be ‘removed’ from the Volksgemeinschaft.Footnote 14
Nicolai's work met with the approval not only of criminal law scholars,Footnote 15 but also of the renowned Hans von Hentig, who praised it in the highly regarded Monatsschrift für Kriminalpsychologie und Strafrechtsreform (MSchrKrimPsych, now Monatsschrift für Kriminologie und Strafrechtsreform, MSchrKrim),Footnote 16 the main medium of German criminologyFootnote 17 of which von Hentig was co-editor at the time. Von Hentig himself advocated biologist positions at the beginning of the twentieth century, as we will see below,Footnote 18 but later set himself against one-sided biologism and, in addition, criticised the naive ‘trust in authority’ of the younger generation, represented mainly by Georg Dahm and Friedrich Schaffstein,Footnote 19 at the conference of the German section of the Internationale Kriminalistische Vereinigung ((IKV) International Penal Association) in 1932–33.Footnote 20 Von Hentig also criticised Nicolai's criminal-biological emphasis on hereditary predisposition, stating that his dismissal of environmental influences would need to be ‘preceded by a discussion of the question of how ‘the criminal is imagined to be’, namely as a ‘true criminal’ or only as a ‘small-scale law-breaker’. While it was ‘doubtlessly correct that unfit genetic qualities need to be eradicated’, it was doubtful ‘whether every criminal act is symptomatic of hereditary predisposition or degeneracy and which hereditary traits should be regarded as “unfit”’.Footnote 21
Von Hentig's views corresponded with the balanced position of MSchrKrimPsych, which at the time understood itself as an interdisciplinary forum of jurists and medical practitioners and thus adopted a more differentiated predisposition-environment approach, continuing to do so even during the first years of NS rule.Footnote 22 The journal was founded in 1904 by Jewish psychiatrist Gustav Aschaffenburg in order to ‘scientifically research the psychology of crime and the criminal’Footnote 23 and serve as a ‘reservoir … of juristic and medical, sociological, psychological and philosophical works’.Footnote 24 This was a revolutionary interdisciplinary project for its time, involving both legal and medical practitioners,Footnote 25 as evident from the fact that the important criminal law reformers von Liszt, von Lilienthal and Kloß were involved in the journal's foundation.Footnote 26
The Monatsschrift has survived until today (as MSchrKrim) but was subject both to numerous changes, including its name,Footnote 27 and, of course, to increasing Nazi pressure. In fact, the journal's history represents paradigmatically the changes in German criminology, especially under Nazi rule. Dissatisfied with increasing Nazi influence, von Hentig resigned from the editorial board in 1934, followed by Aschaffenburg in 1935. Von Hentig, who had already gone into exile in the United States in 1936, wrote about these events in an obituary for Aschaffenburg, complaining about ‘the atmosphere of Gleichschaltung’ and the increasing ‘caution’ of the publisher as a result of Nazi pressure.Footnote 28 Aschaffenburg himself cited his advanced age and the need for generational change as the reasons for his retirement,Footnote 29 but in fact he had been forced to resign on the ground of the NS race laws, which prohibited Jews from holding editorial positions.Footnote 30 In 1934 the Nazis forced Aschaffenburg – who was already 68 years old – to retire prematurely from his chair at the University of Cologne and as director of Cologne's psychiatric clinic.Footnote 31 He emigrated to Switzerland in 1939 and then to the United States, where he died in 1944.Footnote 32 Interestingly, before his immigration to the US, Aschaffenburg continued to advise the new editors (Exner, Lange and Sieverts, 1936–44)Footnote 33 but was finally forced to break off contact completely as co-editor Lange had been denounced to the Gestapo because of this continued collaboration and the journal feared that the Reichsschrifttumskammer (the government agency in charge of books and publishing) would become involved. As a consequence, the three new editors wished to resign en masse,
but Aschaffenburg himself, in a moving letter revealing his greatness and generosity, asked them not to place his person above the matter itself, which their intended resignation risked placing in the hands of scientifically half-educated Party ideologues who under certain circumstances might cause great harm.Footnote 34
Ultimately, with Aschaffenburg's definitive departure,Footnote 35 from 1937, at the latest, the Monatsschrift was no longer able to evade the biologism promoted by the Nazis and changed its name to Monatsschrift für Kriminalbiologie und Strafrechtsreform (MSchrKrimBio), replacing ‘criminal psychology’ with ‘criminal biology’). While the (new) editors did not want to see the change in name as a ‘change of programme’ (‘Programmwechsel’),Footnote 36 further changes in the editorial boardFootnote 37 and the ever more radical content of subsequent issues showed the journal's increasingly biologistic orientation.Footnote 38 Thus, it is fair to say that the journal ‘had come to terms with National Socialism’.Footnote 39
At any rate, the ideas of ‘elimination’, ‘selection’ and the like were by no means invented by the National Socialists. In 1913 the same von Hentig, who had tried to impede the biologistic Nazi takeover of the Monatsschrift, had already propagated the selective function of criminal law (‘social selection's most energetic and sparkling instrument’)Footnote 40 – a fact largely ignored in his Anglo-American reception. One year later he advocated the animal-like breeding of a ‘moral race of human’, which would result in the ‘elimination of a certain type of antisocial human’, embracing a completely biologistic line of argument.Footnote 41 Thus Nicolai and other Nazi juristsFootnote 42 were able to link effortlessly to earlier criminal-biological and social-Darwinist approaches of the fin de siècle,Footnote 43 which themselves were linked in turn to the (thoroughly racist) European colonialism of this time.Footnote 44 These approaches were by no means restricted to the political right wing or the Centre Party (Zentrum).Footnote 45 In institutional terms, the advance of criminal biology had already become manifest in the 1920s with the setting up of ‘criminal-biological examination offices’ (kriminalbiologische Untersuchungsstellen) within the context of the tiered penal system at state levelFootnote 46 and the foundation of the Criminal-Biological Society (Kriminalbiologische Gesellschaft) in 1927;Footnote 47 the Society in turn formed the scientific nucleus of the Criminal-Biological Service (Kriminalbiologischer Dienst) founded in 1937 as part of the Reich Administration of Justice.Footnote 48
It is clear from the above that there was – as with Nazi criminal lawFootnote 49 and as generally recognised in historical scholarshipFootnote 50 – a backward-reaching continuity (post-Weimar) in criminology, too. This stands in stark contrast to the above-mentioned rupture thesis – and the ensuing lack of engagement with Nazi law – which is therefore to be dismissed in this context, too.Footnote 51 A continuity into the future then became apparent in the seamless transition of some criminologists and their works (for example, Exner's Kriminalbiologie Footnote 52 and Mezger's Kriminalpolitik Footnote 53), including the entire scientific superstructure, into the Bonn and even Berlin Republic.Footnote 54 There was a climate of widespread silence,Footnote 55 which permeates mainstream textbooks which largely overlook the role of German criminology during the NS period.Footnote 56
This silence perhaps reached its climax in Mezger's speech on the history of the Criminal-Biological Society – an important part of the superstructure referred to above, presided by Mezger himself until 1961 and only renamed the Gesellschaft für die gesamte Kriminologie (Society for Comprehensive Criminology) in 1967Footnote 57 – at its first postwar gathering in 1952. Here, Mezger expressed rather cryptic criticism of criminology's ‘one-sided … untenable natural-scientific orientation’ during the Third Reich and the practice of ‘remote diagnosis’, but without making any explicit mention of National Socialism.Footnote 58 In as late as 1959, an article by a student of Rudolf Sieverts appeared in MSchrKrim, paying tribute to youth concentration camps in NS parlance.Footnote 59 Only during the 1960s did a critical appraisal of the past and a suppression of criminal biology set inFootnote 60 with Würtenberger's memorable 1967 lecture on the inglorious history of the Criminal-Biological Society,Footnote 61 also marking an impressive turning point in mainstream criminology. Würtenberger recalled the Criminal-Biological Society's involvement in National Socialism,Footnote 62 criticised (Mezger's) silenceFootnote 63 and the failure ‘thus far’ to overcome ‘criminal biology’,Footnote 64 and called for ‘all viewpoints to be integrated into a “comprehensive criminology”’.Footnote 65 Thus, if the rupture thesis ever had any merit, the 1967 Würtenberger lecture can be seen as a turning point of German criminology – in terms of a first attempt to confront its Nazi past and, perhaps, even break with it.
3. Effects of Criminal Anthropology
The influence of the Italian positivists, and particularly of Lombroso's theory of the born criminal,Footnote 66 should not be underestimated.Footnote 67 Lombroso's theory – at least in its criminal-anthropological radicalism (physiological and constitutional characteristics of the ‘born criminal’, going beyond hereditary criminal traits)Footnote 68 – was widely rejected in Germany. Thus, for example, Aschaffenburg criticised the ‘unreliability’ of the data gathered, considered the approach as ‘mistaken’ and concluded that the distinction between the ‘born criminal’ and the normal human being has ‘failed’, as has the attempt to ‘characterise the criminal in “clinical and anatomical” terms’.Footnote 69 Even authors with certain Nazi tendencies in their writings, like Mezger and Exner, dismissed Lombroso's approach. Thus, for the former it has ‘not been possible to provide evidence’ of ‘born criminals’ and the criminal-anthropological core of the approach has been ‘refuted’.Footnote 70 Exner even more radically considered the idea of the ‘born criminal’ as ‘nonsense if taken literally’, but also ‘unproven and unprovable’ concerning hereditary criminal character traits, as ‘inherited potentialities’ need not ‘necessarily lead to crime’.Footnote 71
However, Lombroso served as inspiration for some sort of mixed innovative (albeit implausible) approachesFootnote 72 and his fundamental ideas have, at any rate, been taken up by research on the human physical constitution.Footnote 73 Also, his theory played a leading role in the empirically oriented scientificationFootnote 74 of criminology – similar to the positivist sociological ‘French school’ of TardeFootnote 75 or LacassagneFootnote 76 and going beyond the ‘classical’, metaphysically oriented school of Beccaria,Footnote 77 BenthamFootnote 78 and Feuerbach.Footnote 79 Lombroso thus facilitated the emergence of an empirical criminology oriented towards the natural sciences, thereby opening up ‘new horizons in modern criminal law’Footnote 80 and making Lombroso for some the ‘founder’ of modern criminologyFootnote 81 or ‘father of the scientific investigation of crime’.Footnote 82
In addition, Lombroso had a more concrete influence upon the development of criminal psychiatry, as expressed particularly in the work of Emil KraepelinFootnote 83 and his moreFootnote 84 individual-psychological psychiatric school (the ‘Kraepelin paradigm’);Footnote 85 it is fair to say that Lombroso provided an ‘impetus for medical and psychiatric research into the “uomo delinquent” as an individual’.Footnote 86 By contrast, the more sociologically and psychologically oriented Aschaffenburg School (the ‘Aschaffenburg paradigm’) rejected, as did its founder,Footnote 87 the concept of the ‘born criminal’ in the first place, emphasising the role played by environmental factors.Footnote 88
The (psychiatric) concept of moral insanity,Footnote 89 which was already used by Lombroso, formed the foundation of psychopathy;Footnote 90 in turn, psychopathy – which was less radical than Lombroso's criminal-anthropological and constitution-focused approach and thus more acceptable to a criminal law guided by the principle of culpabilityFootnote 91 – became the dominant (medical) frame through which to interpret criminality.Footnote 92 At any rate, one must not overlook the fact that as a marker of ‘inferiority’, this concept of psychopathy was hugely stigmatising,Footnote 93 while at the same time, as acknowledged by Kraepelin himself,Footnote 94 being too vague for a precise psychiatric diagnosis.Footnote 95 Thus, as a diagnostic and prognostic tool, it only made a comeback with Hare's PCL-R checklist.Footnote 96 In this context, ‘psychopathy’ is concerned less with identifying ‘inferiority’ in whatever shape or form and more with a degree of social dissociation or anomie that fosters crime.Footnote 97
The recognition of ‘born’ or otherwise predisposed criminals formed the basis for protective or incapacitating criminal law measures,Footnote 98 which in Germany were forcefully advocated especially by Franz von Liszt. While von Liszt took a differentiated view of Italian positivism,Footnote 99 he later drew upon criminal-biological and anthropological approachesFootnote 100 and argued for the ‘neutralisation’ of incorrigible offenders within the framework of the second track of his purely protection- and security-focused criminal law (the ‘Marburger Programme’).Footnote 101 From this point of view, Lombroso's ‘born criminals’ can be read as a ‘cipher for “incorrigible” and “dangerous” criminals’.Footnote 102 In fact, Kraepelin too called for ‘elimination of incorrigible individuals’Footnote 103 in line with his individualistic psychiatric approach inspired by Lombroso.Footnote 104 Thus, ultimately – regardless of the intentions of Lombroso and von Liszt – this whole thinking not only laid the intellectual groundFootnote 105 for the Nazi theory of perpetrator types (Tätertypenlehre Footnote 106) which in turn is derived from Willensstrafrecht (criminal law of the willFootnote 107), but also – more importantly in our context – paved the way for later Nazi legislation on neutralising so-called Volksschädlinge or ‘elements harmful to the people’ (particularly through the Gewohnheitsverbrechergesetz (Habitual Offenders Act)Footnote 108 and the Volkschädlingsverordnung (Volkschädling DecreeFootnote 109). In fact, von Liszt, notwithstanding his otherwise liberal reformist tendencies, referred to ‘habitual criminality’, which he saw as present primarily in incorrigible criminals, as a ‘sick limb’ of the organism, as a ‘cancerous damage’ eating its way ‘ever deeper into our social life’.Footnote 110
This Lisztian line of continuity had already been emphasised at the time. Thus Exner traced the Habitual Offenders Act back to Liszt's efforts to introduce ‘effective legal means of combatting dispositional criminality’.Footnote 111 Eberhard Schmidt stated that the Habitual Offenders Act had fulfilled ‘Liszt's old call to intensify the fight against habitual criminality’,Footnote 112 which is why it does not represent ‘a specifically National Socialist statement on sentencing’.Footnote 113 More recently, Dölling argued that von Liszt's special preventive focus on the effective protection of society had led to ‘the danger of a scientifically informed positivism that failed to reflect upon its preconditions and consequences – a danger that had its roots in early criminology – becoming realised’ in the Nazi period.Footnote 114 While Streng emphasises Liszt's unifying theory (‘Vereinigungstheorie’)Footnote 115 approach, he sees links to NS criminal policy in the harshness with which Liszt excludes ‘incorrigible individuals’ and his ‘extreme purposive orientation’.Footnote 116 While this continuity can hardly be denied in relation to the Habitual Offenders Act, the same does not apply for the Volksschädlingsverordnung, for this decree legalised eradication through the death penalty, which Liszt was always against: ‘and as we do not wish to behead or hang and are unable to deport [incorrigible individuals], only lifelong imprisonment remains’.Footnote 117 Thus, here too the Nazis did not just continue what they found, but radicalised it.Footnote 118
4. National Socialist Radicalisation and the Criminal-Biological Utopia of the ‘Blood-Based’ Volksgemeinschaft
Despite these precursors, we can state – in accordance with the radicalisation thesis referred to above – that National Socialism strengthened and developed hereditary, genetics-based ideas further with a racist, populist (völkisch) bentFootnote 119 – as evident not least in the renaming of MSchrKrim (Criminal Biology)Footnote 120 – while the role of environmental factorsFootnote 121 was increasingly disregarded. Thus, criminal biology marginalised, on the one hand, criminal sociology, arguing that an ‘extreme milieu-based theory’ is ‘unacceptable to the total state’;Footnote 122 on the other hand, psychoanalytic criminology was stigmatised as ‘Jewish’ and displaced in favour of biologistic psychiatry.Footnote 123 With this criminal biology – continuing the reception of Lombroso around the turn of the century (backward-reaching continuity!) – finally became criminology's most important key and umbrella concept,Footnote 124 understood in racist, biologistic terms. Viernstein, as one of the most important authors in this regard, defined ‘criminal biology’ as ‘the research into, typification and definition of the social and racial value of the criminal personality’.Footnote 125 In a similar vein Stumpfl explained, specifically alluding to the Führer, that ‘criminal-biological family research is called to significantly promote the study of character and thus contribute to our knowledge concerning people and race that Adolf Hitler has made the foundation of his great work of renewal’.Footnote 126
At the same time, criminal biology proved to be a ‘legitimating science’ (‘Legitimationswissenschaft’)Footnote 127 for the Nazi criminal policy of ‘racial hygiene’; as such, it was to make a scientific contribution to the realisation of the social-technological utopiaFootnote 128 of the Volksgemeinschaft, understood in terms of race and blood,Footnote 129 ascertaining the social ‘fitness’ of those members of the people (‘Volksgenossen’) who had committed a crime.Footnote 130 It found ‘its long-desired object of research’Footnote 131 in ‘incorrigible habitual offenders’ (‘unverbesserliche Gewohnheitsverbrecher’)Footnote 132 and contributed to Nazi race and selection policies as a radical continuation of the idea of protection by the ‘interlocking of biologically oriented psychiatry with … protective criminal law’ as the ‘root of racism’.Footnote 133 Thus the ‘findings [of criminal biology] were rendered usable for the people and the state’;Footnote 134 criminal biology was ‘of interest to the political state leadership’Footnote 135 and received both resources and recognition in return.Footnote 136
With the Nazis’ rise to power, this racist and anti-Semitic criminal policy became socially acceptable. In the mainstream Dictionary of Criminology ‘racial belonging’ was advocated as ‘the most important factor determining the presence or development of a person's criminogenic disposition’.Footnote 137 A radically anti-Semitic author like Johann von Leers, invoking none other than the Jewish (!) Lombroso to turn the latter's ‘born criminal’ against the Jews themselves, could proclaim ‘Jewishness’ as ‘hereditary criminality’, which is why every human being needs to take part ‘in the fight to bring down the Jews’.Footnote 138 Robert Ritter's study on ‘vagabonds, rogues and robbers’, dedicated to Alfred Ploetz, ‘the doyen of racial hygiene’, propagated a crude genetic and racial-biological determinism.Footnote 139 Its core hypothesis was that this ‘breed of people’ outlasts the (sociological) existence of a ‘rogue society’ (‘Gaunergesellschaft’), precisely because their antisocial and criminal behaviour is biologically and genetically determined and they thus are ‘born criminals’ and ‘vagabonds’.Footnote 140 At the same time, Ritter, himself a psychiatrist, represented the increasing influence – already on the rise before Nazi ruleFootnote 141 – of medicine and psychiatryFootnote 142 and of studies on hereditary factors and family clans (including twin studies)Footnote 143 in criminology.Footnote 144
However, ideas on genetics are also to be found in non-medical authors such as Franz Exner,Footnote 145 although Exner principally regarded environmental factors as equally important, arguing that crime is always a ‘reaction to environmental influences’ and it is ‘never possible to draw fully reliable conclusions concerning genetic material from behaviour’.Footnote 146 Exner also recognised the significance of criminal sociology,Footnote 147 though he contributed to its marginalisation under the Nazis nevertheless.Footnote 148 In fact, Exner was inconsistent in his views, as some of his statements advocate the rule of law, for example, by criticising the vagueness of the notion of the ‘healthy sentiment of the people’Footnote 149 and police preventive detention,Footnote 150 while others are overtly racist and anti-Semitic, for example, referring to ‘negro criminality’, to the lower criminality of the ‘Nordic race’ and to ‘Jewish racial idiosyncracy’ and ‘criminality’ which corresponds with ‘basic traits of the Jewish nature’.Footnote 151 These inconsistencies led the most thorough legal-historical and biographical study to see him as a ‘careerist’, ‘who suppressed any moral doubts in favour of his scientific career, placing himself in the service of the NS dictatorship’.Footnote 152
Authors with a primary focus on criminal law, such as those of the Kiel School mentioned at the beginning of this article or Edmund Mezger, also took up biologistic and genetics-focused ideas. Thus Dahm and Schaffstein criticised the over-emphasis placed upon the idea of education and demanded that incorrigible individuals ‘incapable of being educated’ be neutralised.Footnote 153 These individuals could be identified on the basis of ‘unchanging hereditary factors’ the ‘significance’ of which has been ‘clearly shown’ by ‘modern biology’Footnote 154 and which, at any rate, can be explained with the (superior) Nazi ‘idea of race’ based upon ‘genetic disparity’.Footnote 155 On the other hand, while Mezger stressed the ‘complicated interaction’ of heredity and environment within the framework of a ‘dynamic understanding of crime’ in the late 1920s,Footnote 156 he was already at this point influenced by genetics and racial hygiene.Footnote 157 In fact, he adopted an increasingly biologistic and racist standpointFootnote 158 and advocated the ‘elimination of incorrigible individuals’.Footnote 159 Despite his fundamental criticism of Lombroso's theory,Footnote 160 he acknowledged its basic tenets in essence,Footnote 161 believing that ‘there are undeniably human beings destined to become criminals because of their innate predisposition’.Footnote 162 From this, he derived a ‘requirement for racial-hygienic measures to stamp out criminal strains’,Footnote 163 which was fully in line with his calls for a ‘racially selective breeding of the people’.Footnote 164 Mezger welcomed ‘the new state's race legislation’ where ‘race itself is now afforded the consideration it deserves’.Footnote 165 In sum, Mezger's increasingly biologistic and racist orientation, along with his collaboration in the Law on Community AliensFootnote 166 and bizarre visits to Dachau concentration camp,Footnote 167 made him one of the leading ideologues of NS criminology.Footnote 168
But even among criminal law scholars sympathetic to Nazi thinking, criminal-biological research was by no means uncontroversial. Thus, the distinguished Hellmuth Mayer, member of several Nazi organisations (although not of the party)Footnote 169 and actively involved in the Nazi criminal law reform effortsFootnote 170 (although not a full-blown Nazi),Footnote 171 criticised it from two angles. On the one hand, from a humanities point of view – which Mayer claimed was the relevant perspective, as criminal policy, including criminology, should be understood as part of the humanitiesFootnote 172 – the contrasting of predisposition and environment was ‘deficient and inappropriate’Footnote 173 as the ‘purely natural-scientific question of milieu versus predisposition’ is unable to grasp ‘the overall problem’, which can ‘only be understood from the point of view of a humanities-based structural psychology’, emphasising the free will.Footnote 174
On the other hand, for Mayer the significance of inherited traits – in relation to social conditions – was impossible to prove beyond doubt; rather, it should be assumed that with criminality, too, as in other areas of life, ‘the outcome can be quite different even with the same predisposition’.Footnote 175 In fact, as Mayer argues elsewhere,
crime can also arise as actions which are fully to be expected of healthy human beings in a healthy communal life … criminals and crimes are nothing other than purely legal labels. There are no somehow distinguishable sociological, psychological or biological fields of reality behind these labels.Footnote 176
Mayer's empirical doubts are reminiscent of criticism already voiced in the late Weimar Republic concerning the lack of results of criminal-biological research on prisons,Footnote 177 with which Mayer concurred for the reason alone that prisons contained ‘only the sum of those who were caught’.Footnote 178 Others criticised the one-sidedness of race-based theories of predisposition.Footnote 179
5. Mainstream and Nazi Criminology?
Against this background, is it possible to say that mainstream criminology during the Nazi period – in clear distinction specifically to Nazi criminology – rejected racial-genetic determinism à la Ritter and adhered to an interaction involving predisposition and environment – as least as a theoretical starting point?Footnote 180 Wetzell argues along these lines, claiming that while National Socialism needed research in criminal biology to support its eugenic and biologistic views, mainstream criminology provided only limited support for these ideas,Footnote 181 as ‘genetically deterministic and racist explanations of crime did not predominate in criminal biology and criminology’, and ‘mainstream criminology … was characterized by a continuing process of increasing methodological sophistication’.Footnote 182 Therefore, neither a connection between ‘criminal biology and racism (including anti-Semitism)’Footnote 183 nor ‘a natural affinity between Nazi jurists and criminal biology’ can be assumed.Footnote 184
However, this view is problematic in that Wetzell does not define explicitly what he means by ‘mainstream criminology’. He quotes important authors such as Aschaffenburg, Mezger and Exner, and concedes that ‘leading criminologists’ sought to attract the Nazi regime's support by emphasising the significance of criminology for Nazi eugenics, but ultimately failed to gain acceptance in ‘mainstream criminology’.Footnote 185 In a way Wetzell seems to posit a distinction between normal and Nazi criminologyFootnote 186 but such a distinction did not and indeed could not exist as such, given the totality of the Nazi rule embracing all academic institutions and movements.Footnote 187 This can be seen in the composition and status of the above-mentioned Criminal-Biological Society as the leading professional association, which significantly promoted the rise of criminal biologism and concepts of racial hygiene.Footnote 188 The personal – academic and/or institutional – efforts of most criminologists, such as Exner and Mezger in the field of law, show that even scientifically reputable ‘mainstream’ criminologists (to use Wetzell's term) became caught up in and partly even contributed to Nazi radicalisation.
Against this background it is more convincing to affirm the responsibility of criminology as a whole – as a ‘legitimating science’ (a position which ultimately is also shared by Wetzell, although he does not use this term).Footnote 189 The discipline's genetic and racist focus, combined with the radical development of the earlier concept of (biological or mental) inferiority (linking criminality to the lowest – ‘inferior’ – classes and persons)Footnote 190 and the idea of a protective criminal law,Footnote 191 not only slotted perfectly into NS ideology, but also prepared the ground for ‘racial-hygienic’ cleansing measures (‘elimination’ and ‘eradication’).Footnote 192 These measures entailed either extensive forced sterilisation or castrationFootnote 193 (giving a radical turn to a debate that had already begun to gather steam around the turn of the century);Footnote 194 or, as a final consequence, the killing of ‘life unworthy of living’ (lebensunwertes Leben),Footnote 195 with the infamous 1920 text of legal scholar Binding and psychiatrist Hoche on the approval of killings (Die Freigabe der Vernichtung lebensunwerten Lebens) as its intellectual precursor.Footnote 196 Ultimately, biologistic-eugenic thought also formed the basis of and legitimated Freisler's understanding of Nazi criminal law as a ‘law of combat’ (‘Kampfrecht’)Footnote 197 with the aim of preserving the racially homogenous Volksgemeinschaft through ‘healthy selection’, to be achieved through excluding the ‘carriers of degeneration’Footnote 198 and eradicating the ‘type of the disturber of the peace in the people’.Footnote 199 The legislative culmination of this development was to have been the Gemeinschaftsfremdengesetz (Law on Community Aliens),Footnote 200 criminalising all citizens who did not want to integrate into the ‘community of the people’;Footnote 201 however, this law did not enter into force because of the events of the War.Footnote 202
In light of these considerations it is fair to say that the (biologistic) criminology of the Nazi period contributed to ‘the steering of society by criminal law, based on a biologistic foundation’,Footnote 203 that is, the ‘elimination’ and eradication of entire groups of the population.Footnote 204 It thus constituted a major ‘ideological building block’, cementing the Nazi terror rule.Footnote 205 However, one must not overlook that the criminal-biological thinking (which was promoted by the Nazis) stood in the tradition of nineteenth-century biologistic concepts inspired by social Darwinism (thus once again demonstrating continuity – with the past).Footnote 206 Furthermore, such thinking need not necessarily lead to excesses of the Nazi ilk;Footnote 207 there was no ‘unbroken line’ between earlier demands for ‘incorrigible persons’ to be ‘neutralised’ and the Nazi policy of sterilisation and eradication.Footnote 208
This is shown not only by Lombroso's scuola positiva (which did not lead to comparable excesses in its Italian motherland), but also by the consistency and continuity of criminal-biological thinking up to the present day,Footnote 209 although this thinking has overcome its former purely deterministic approach (‘born criminal’).Footnote 210 The ‘neutralisation’ of dangerous criminals is the logical consequence of criminal-biological deterministic thinking, precisely because these criminals are seen as incapable of being treated (‘incorrigible’). This need not necessarily lead to their physical elimination, as in radical National Socialism, but will certainly result in their lifelong detention in order to safeguard the primary goal of protecting societyFootnote 211 (preventive detention).Footnote 212 The primacy of the protection of society over the perpetrator's individual freedom is fully in line with Lisztian criminal policy – detention as an alternative to ‘beheading and hanging’Footnote 213 – and forms the fundamental idea underpinning today's institution of preventive detention.
This line of continuity may go some way in explaining why Jewish criminologists, such as Gustav Aschaffenburg,Footnote 214 ‘Germany's foremost expert in criminology’ with worldwide renown,Footnote 215 essentially agreed with those who criticised the ‘softening’Footnote 216 of the Weimar Republic's liberal criminal law,Footnote 217 rejected the responsibility of criminology for it and even advocated the ‘neutralisation’ of certain members of the ‘community of the people’.Footnote 218 These criminologists – perhaps as children of their time and victims of the Zeitgeist Footnote 219 – were neither able to predict the Nazi radicalisation of these ideas, nor recognise that such an inhumane criminal policy would sooner or later turn against themselves.Footnote 220
6. Concluding Remarks
This brings these (preliminary) reflections on criminology under the Nazi regime to a close. They have shown that Nazi criminology – as well as Nazi criminal law – did not emerge from nowhere and did not disappear completely in 1945. In fact, German criminology during the Nazi reign, especially its biological turn, became a legitimating science preparing the ground for genocidal Nazi criminal justice policies. Sadly, the rise of the ‘New Right’ in Germany shows how current and necessary these reflections are. Whatever our stance on the history of German criminology and the theory of continuity and radicalisation, today their scientific examination and appraisal is more necessary than ever, lest criminology once more becomes the tool of an inhumane criminal policy.