I. Potsdam: A Transformative Occupation

In August 1945, Karl Loewenstein began work as senior expert advisor to the Legal Division of American Military Government (AMG) in Berlin. An eminent German-born and educated political scientist and jurisprudent, Loewenstein had come to assist in the “democratization” of his homeland's Nazified law and legal institutions. It was soon obvious, however, that in its crucial first phase the American legal mission in Germany was in disarray. The development and implementation of American law reform policy was being undercut by ill-prepared leadership, poor planning, and the scarcity of learning about German laws, lawyers, and legal history. By Loewenstein's reckoning, many American officers had been “set to work on problems of which they have not the slightest idea and very little professional qualification.”Footnote ¹ Critical law reform initiatives had been based upon expedient “over-simplifications” of Nazism and its eradication. By January 1946, his initial misgivings having given way to mordant despair, Loewenstein concluded that the American program for the democratization of the German legal system was irrevocably “lost,” a “failure which stinks to high heaven.”Footnote ² This article sets forth the theoretical and observational bases of Loewenstein's assessment and evaluates its cogency.

The legal reconstruction of postwar Germany unfolded within a multilateral and dynamic political environment. When the European war ended with the unconditional surrender of the German armed forces on May 8, 1945, supreme military and political authority over Germany became vested in the Allied theater commanders: Eisenhower in the west, Zhukov in the east.Footnote ³ In June this arrangement was superseded by the “Four Powers Agreement,” which established the “Allied Control Council” (ACC) in Berlin, a quadpartite governing body led jointly by the chief military commanders of the United States, Britain, France, and the Soviet Union. The charter of the ACC was negotiated at the Potsdam Conference of July 1945 and was set forth in the Potsdam Protocol of August 2. The Protocol gave each of the four powers broad political power within an assigned “zone” of occupation (the American zone was to consist of some 18 million Germans living in Bavaria, most of southwestern Germany, and the port of Bremen) subject only to the supreme authority of the ACC “in matters affecting Germany as a whole.”Footnote ⁴ In exercising this centralized power the ACC was to strive for “uniformity of treatment of the German population throughout Germany.”

The Potsdam Protocol called for the swift and permanent destruction of the German war machine. In this regard the Allies were to effect the “complete disarmament and demilitarization of Germany and the elimination or control of all German industry that could be used for military production.”Footnote ⁵ The Nazi party—its offices, officeholders, and affiliated institutions—were to be permanently “extirpated,” and its leaders arrested and tried for war crimes. The institutions of the German state were to be broken up and decentralized, as were the great German industrial cartels. Potsdam also mandated that “[a]ll Nazi laws which provided the basis of the Hitler regime or established discrimination on grounds of race, creed, or political opinion shall be abolished. No such discriminations, whether legal, administrative or otherwise, shall be tolerated.”Footnote ⁶ These first order tasks completed, the ACC was then to commence the institutional transformation of Germany, in particular, to undertake the “reconstruction of [German] life on a democratic and peaceful basis.”Footnote ⁷ German local and regional self-government were to be re-established on “democratic principles”. At the same time, the German legal system was to “be reorganized in accordance with the principles of democracy, of justice under law, and of equal rights for all citizens without distinction of race, nationality or religion.” As Loewenstein summarized: “The basic objective of the occupation is to be the reestablishment of the rule of law in Germany.”Footnote ⁸

Karl Loewenstein came to Legal Division to help implement the legal provisions of the Potsdam Protocol. He was hired for his great knowledge of German law, language, and politics. Born in Munich in 1891, he was the only son of an affluent family of assimilated Bavarian Jews. After the First World War, Loewenstein became a lawyer and completed a doctorate in law, and, in 1931, secured a lectureship in international and comparative constitutional law at the University of Munich. When the Nazis came to power in 1933, Loewenstein's Jewish ancestry, liberal cast of mind, and fine English were three compelling reasons for him to leave Munich for a lectureship at Yale University. When he was recruited to Legal Division twelve years later, Loewenstein had become an American citizen (in 1939) and was the prolifically published Chair of Political Science and Jurisprudence at Amherst College. A bold theorist of contemporary law and politics, Loewenstein was also committed to the ethic of “praxis,” of ideas in action. Hence in the summer of 1945, Loewenstein sought out and secured a senior appointment to the American legal mission in Berlin. He left for Germany passionately committed to the grand purpose, as he put it, of “reconstructing the legal existence of a totally defeated and totally occupied country.”Footnote ⁹

During his thirteen-month deployment with Legal Division–Berlin and then in the subsequent two years, Loewenstein created (in the form of a detailed diary, more than sixty official memoranda, a series of scholarly articles, and a book manuscript) a singularly rich, discerning, and often unsparingly candid documentary record of the aims, intrigues, operations, and machinations of this important if little-studied department of AMG.Footnote ¹⁰ This material—almost entirely overlooked by historiansFootnote ¹¹—is arguably the single most detailed and revealing “insider” account of any aspect of the American military administration in postwar Germany.Footnote ¹² When read with the larger archival record of Legal Division–Berlin,Footnote ¹³ the Loewenstein papers provide an exceptional opportunity to reconstruct and critically evaluate this world-historical experiment in directed legal change during its crucial first year. Taken together, these documents raise a number of intriguing questions. How did Legal Division comprehend German legal fascism and the means and content of its “democratization”? Was there internal conflict over these questions? By whom was the Division led and organized? How did they structure their work and engagement with German lawyers and officials? What use was made by the Division of intellectuals and experts? At the end of the first year of its work, to what degree had Legal Division achieved its destructive and constructive missions in Germany? Was Loewenstein correct that in the critical first year of the occupation, American efforts toward legal “democratization” in Germany were misconceived and largely ineffective?

My investigation of these questions unfolds in three parts. The first involves a concise survey of Loewenstein's extensive pre-surrender writings on law and politics in the twentieth century, including his work on the rise and consolidation of Nazism in Germany. Here the goal is to identify the basic ideas and ideals that informed Loewenstein's understanding both of law and politics and of the “Nazification” and potential “de-Nazification” of the German legal system. Part Two will focus on the aims, personnel, and organizational behavior of Legal Division–Berlin and especially on Loewenstein's detailed chronicle of the fate of the American legal reform agenda in the initial phase of the occupation. This section will focus on the crucial first steps taken toward the de-Nazification of German legal institutions in the American zone.

The third and final section of the article will examine the predicament of the intellectual in an American occupation bureaucracy. Here I develop the study's central thesis: By his lights as a trained thinker about German law and politics, Karl Loewenstein was amply justified in his severe criticism of the leadership and policies of Legal Division–Berlin. The first American efforts in the “de-Nazification” and “democratization” of the German legal system were (in fact) weakly theorized, feebly implemented, and mainly ineffective. At the end of 1946, the Nazi legal system in the American zone had been shorn only of its most overtly racist and repressive features. But for all its compelling force, Loewenstein's critique of Legal Division also had conspicuous limitations. Whereas Loewenstein the scholar told elemental truths about Germans and German authoritarianism,Footnote ¹⁴ Loewenstein the advisor was largely indifferent to their practical value to American decision-makers. In tendering opinion, and in his caustic reflections afterward, Loewenstein stubbornly clung to the illusion that AMG possessed time, will, and means enough to impose a prolonged, stern, and, in its transformational rigor, “militant” occupation of Germany. In this way the teller of hard historical truths failed to confront the hardest truth of all: the leaders of the American occupation bureaucracy could not embrace any “historical fact” about the Nazi-era legal elite that would tend to impede the swift reactivation of German legal institutions.

II. Militant Democrat: Loewenstein as Theorist

Uniquely among American legal officials in Germany during the first phase of the occupation, Karl Loewenstein was a professional thinker and writer about German and European public affairs and history. As an undergraduate he had studied history, sociology, and classical and modern law at Munich, Heidelberg, Paris, and Berlin universities. He travelled widely in continental Europe, Britain, and the United States. With his native German, Loewenstein learned to speak fluent English and French and passably good Spanish and Italian. Although the completion of his graduate education was interrupted by military service in the First World War, Loewenstein persisted with advanced study in law and modern history. At Heidelberg, he was a student of Max Weber and a regular attendee of Weber's salon.Footnote ¹⁵ In these years, Loewenstein came to revere the great German sociologist and the Weberian proclivity for systematic and detached observation and analysis.Footnote ¹⁶ For Loewenstein, as for Weber, candor was the scholar's cardinal virtue, sentimentality his mortal sin.Footnote ¹⁷

As a young man, Loewenstein's goal was to become a professional academic at a good German university. But post-First World War era Germany offered few opportunities even for the most gifted scholars of Jewish background. To make a living, Loewenstein qualified for the bar in 1918. To improve his mind and vitae, he took a doctorate of laws in 1919. For the next fourteen years, Loewenstein practiced commercial and appellate law in Munich while continuing his scholarly work. At the same time, he published a book and numerous articles on comparative government and constitutional law.Footnote ¹⁸ His growing list of publications included admiring assessments (here Weber's influence is apparent) of British liberalism and parliamentary government.Footnote ¹⁹ In 1931, now approaching his fortieth birthday, Loewenstein finally secured a part-time appointment as a lecturer in public and international law at the law faculty of Munich University. However, the Nazi ascendancy meant the certain termination of his position at the university.Footnote ²⁰ Although (as a veteran) he might have carried on with his law practice, Loewenstein's academic career in Germany was over.Footnote ²¹ When Yale offered a two-year lectureship, he emigrated to America (with his wife) in the last days of 1933.

Loewenstein began his American career in 1934 as a scholar of comparative constitutions and government as a member of Yale's law faculty. His immediate goal was to secure a tenured position. When this did not happen,Footnote ²² Loewenstein sought out permanent employment at the other leading American law faculties. When none was forthcoming, in 1936 Loewenstein accepted a chair in political science and jurisprudence at Amherst. There he remained, if often discontentedly,Footnote ²³ and with countless leaves of absence, until his retirement in 1972.

After an uncertain beginning, Loewenstein's career throve in AmericaFootnote ²⁴ and in American English. He published his first English-language piece in 1935, and in the subsequent ten years published two long books and a dozen essays in leading journals of American law and political science.Footnote ²⁵ (In 1946 there was yet another book: one that argued for the democratic “political reconstruction” of fascist states after the Second World War.Footnote ²⁶)

I will now briefly summarize three aspects of the mental world that Loewenstein brought to Germany in the summer of 1945:Footnote ²⁷ his basic theoretical commitments about modern law, politics, and society including his theory of “militant democracy;” his diagnosis of why the Weimar Republic had fallen to Hitler and National Socialism; and finally, his prescription for the directed democratization of German law and society in the event of Allied victory in the Second World War.

In the later 1930s, Loewenstein's main subject was European liberal democracy and its vulnerability to subversion by fascist and authoritarian movements. His central case study was the demise of the Weimar Republic at the hands of the Nazis. Loewenstein wanted to know how an avowedly anti-democratic fringe party achieved power within a democratic system.

As he was a “liberal” in basic philosophical commitments, the touchstone of Loewenstein's politics was the sanctity of individual liberty under the rule of law.Footnote ²⁸ Loewenstein believed that the foundation of civilized community was an effective constitution, one “directed against the authority of the state, claiming an untouchable sphere of individual life and action.”Footnote ²⁹ For Loewenstein the twinned principles of liberty and the rule of law were the most “priceless”—if fragile—legacies of the modern European political tradition.Footnote ³⁰ In his view, however, liberty under law was not self-sustaining, but dependent upon the robust operation of political democracy. “History records no instance,” Loewenstein wrote in 1946, “of a government, not democratically elected or controlled, which, in the long run has respected men's liberties.”Footnote ³¹ In liberal society, the first order of business was to cultivate and, when necessary, to defend, the basic institutions of democratic government.

Loewenstein's theory of democracy as prerequisite of liberty is key both to his abstract political thought and his analysis of “The German Question”. To his mind, the history of Europe after the First World War was correctly viewed as a death struggle between liberal democracy and fascist dictatorship. In this fateful conflict, moreover, democratic communities were handicapped by their liberal values and complacency in defending them. In the 1920s, “liberty” had lost its resonance as a rallying cry and “fighting faith.”Footnote ³² Conversely, everywhere in Europe fascists were learning how to manipulate liberal democratic institutions as a means to power.Footnote ³³ Properly understood, Loewenstein argued, fascism was a set of political “techniques” in the subversion of liberal democracy.Footnote ³⁴ The primary strategy of fascism was to “discredit the democratic order…by paralyzing its functions…”Footnote ³⁵ The great menace of fascism was its cunning exploitation of normal politics. Fascist leaders were successful when power was “sought on the basis of studious legality.” The fascist modus operandi was the ruthless but systematic exploitation of democratic legal and political space in the achievement of dictatorial power.

Loewenstein's reflections on fascism did not focus only on diagnosis; equally they were about cure. In long articles published in successive issues of the American Political Science Review in 1937, Loewenstein set forth his (perhaps very German) prescription: If democracy in Europe was to survive, it needed to become “militant” in its own defense. The fascist political technique, Loewenstein contended, could be “defeated only on its own plane and by its own devices.”Footnote ³⁶ In some cases, this would entail the unflinching use of state power to repress the enemies of open government. This might mean the implementation of a series of ostensibly undemocratic, even draconian, measures. In some instances, a democratically-elected executive branch might be compelled to suspend normal electoral laws and parliamentary rules, limit access to mass media, and/or ban all paramilitary organizations. During moments of violent civil unrest, moreover, the militantly democratic legislature would be justified in curbing rights of free speech and mass assembly.

Loewenstein recognized that militant anti-fascism contradicted the fundamental commitments of liberal democratic politics.Footnote ³⁷ In his estimation, this was the necessary—and temporary—cost of saving a beleaguered democracy. After all, fascism presented liberal democracy with a peril tantamount to an “underground war on the inner front.”Footnote ³⁸ Such a war could not be won by leaders paralyzed by “constitutional scruples”. Militancy was about bolstering democracy, not overturning it. When the fascist peril was diminished, the liberal democratic community was naturally self-correcting and restorative.

Loewenstein's theory of militant democracy was based upon a comparative analysis of the defeat of democracy in Spain, Italy, Portugal, and Austria, and on its (at least temporary) victories in Czechoslovakia, Belgium, and France. Once again, the main empirical basis of his theory was (what he called) “The German Illustration”: the fall of the Weimar Republic to Hitler and Nazism. Although Loewenstein worked with incomplete information on these events, he was able nonetheless to express some interesting and, in the light of subsequent scholarship, highly prescient speculations on their general character and meaning.

For Loewenstein, both the most remarkable and dangerous fact about the Nazi movement was that it had gained power largely by democratic means. The Nazi disaster might have been averted, so Loewenstein argued, if leading German elected politicians had taken timely and militant steps in defense of the Republic. But instead of securing the arrest and detention of Hitler and his henchmen, Weimar politicians had reacted with “legalistic self-complacency and suicidal lethargy.” In the end, German democrats were undone by an inflexible fealty to democracy and the rule of law.Footnote ³⁹ They had reposed too much faith in the undefended ballot box. Even more fatally, German democrats had relied upon the German judiciary as a last line of defense. Time and again, Loewenstein contended, this confidence proved misplaced. In the Weimar era, as in Imperial Germany, German judges proved staunchly antidemocratic in their politics and “hyper-legalistic” in their legal decision making.Footnote ⁴⁰ The judiciary, far from being the guardians of the Weimar constitution, had actively collaborated in its demise.

Although the Nazis were contemptuous of liberal notions of legality, they were not, as Loewenstein noted, contemptuous of law and its ideological and instrumental potential. Once in power, the Nazis moved quickly to employ the German legal system as a powerful tool of social and political control and reinvention.Footnote ⁴¹ In the four years after Hitler consolidated power, the Nazis instituted gleichschaltung, the systematic “coordination” of German institutions and Nazi ideology.Footnote ⁴² In the legal sphere, this meant the “total reconstruction of [German] legal life.”Footnote ⁴³ German public law was utterly transformed, its first “constitutional” principleFootnote ⁴⁴ being the absolute authority of the Nazi party leader—of Adolph Hitler—as the human embodiment of the German race, soil, and blood.Footnote ⁴⁵ The civil law was brought into line with Nazi racial and political ideology. Jewish jurists were purged from German legal life.Footnote ⁴⁶ The legal space between citizen and state was eliminated. “National socialism,” Loewenstein generalized, “attains its political ends by destruction of the rule of law. Separation of powers, independence of judges, judicial control of administration, impartial efficiency of the civil service, a Bill of Rights as a safeguard against executive and legislative encroachment, all these elements of the rule of law are over-ruled by the monocratic omnipotence of the Führer and the party.”Footnote ⁴⁷ As Loewenstein summarized in 1937, “In no other field of human activities has German tradition been more completely revolutionized.”

Loewenstein believed that the rise and consolidation of Nazism in Germany presented an unprecedented threat to liberal democratic political aspirations throughout the world.Footnote ⁴⁸ It was typical both of his natural pugnacity and of his conviction that Loewenstein yearned to make a more palpable contribution to the fight. Four months after Pearl Harbor, Loewenstein accepted a position with the Special War Division (SWD) of the Department of Justice. At SWD he was variously employed as an expert in German and international law and as an advisor to a counter-intelligence programFootnote ⁴⁹ directed against Nazi operations in Latin America. In the winter of 1943, the SWD asked Loewenstein to prepare a detailed brief on the potential “de-Nazification” of the German legal system during a period of postwar military occupation.Footnote ⁵⁰ Loewenstein's report, the first of its kind prepared in American government during the Second World War,Footnote ⁵¹ merits close explication.

The report advanced a number of theses. The first was the trite point that “law is one of the essential features of social life of any nation.”Footnote ⁵² That was why, after the Nazis were defeated, the “task of restoring a decent legal system [in Germany] will present itself as urgent and imperative.” That task would fall upon the Americans and their allies, just as it had after the First World War. In that instance, Loewenstein pointedly reminded, the Allies had failed to tame Germany because “The adjustment of then existing German law to the changed conditions of a democratic republic was left to Germany proper, with the result that most of the former laws continued to be in force.” In Loewenstein's opinion, the German legal class would avoid change if given any chance to do so. After the current war, it would therefore be imperative for the Allies to impose transformational change from the outside. “[The] reconstruction of German law,” Loewenstein emphasized, “should under no conditions be left to the discretion of the German authorities, whatever may be their political complexion.” This was a job for the “civilian authorities of the Allied governments” (especially those of the United States) and as “part and parcel of the planned reconstruction of Germany as whole.”

In laying down these (“very sketchily outlined”) guidelines, Loewenstein underlined that legal de-Nazification would be slow, complex, and arduous. “Nazism,” he explained, “has made deep inroads in the German legal life and has revolutionized practically all its aspects.” There would be no way, for instance, to “decontaminate” German law by a “sweeping blanket clause”. Effective legal de-Nazification would need to be based upon the accumulation of precise knowledge about the impact of Nazi ideology on specific bodies of law. Loewenstein's central point in this regard was that the success (or not) of legal de-Nazification would pivot on the depth and quality of advanced research and planning. In the absence of intelligent preparation, Loewenstein predicted, the legal reconstruction of Germany would succumb to “expediency, opportunism, and even ignorance.”

In the remainder of his report, Loewenstein outlined some other prerequisites of legal de-Nazification. The Nazi Party, its privileges, and laws sustaining the German “racial myth” would need to be abolished. Just as crucially, Germany's judiciary, bar, and legal civil service would need to be purged of all persons who had been, as Loewenstein (rather inexactly) put it, “incurably contaminated” by Nazi affiliation or ideology. If the Nazi jurists were permitted to remain in their former positions, “no conversion of the German people to constitutional government is feasible.”

The SWD memorandum was Loewenstein's first (and last) official wartime report on legal de-Nazification in Germany. But his scholarly work on the subject continued apace. During the last days of the war in Europe, he completed a long manuscript that theorized the political, legal, and moral reconstruction of a fascist society during a period of foreign military occupation.Footnote ⁵³ Published in 1946, the book focused on Nazism, its roots in German political psychology, and the obstacles to its elimination. Loewenstein took the view that the Hitler regime was a by-product, not a deviation, from the pattern of modern German history. Nazism had come to the fore in Germany because Hitler and his circle had been able to exploit the historical willingness of Germans to surrender freedom for security. This habitual “submissiveness to authority regardless of legitimacy”Footnote ⁵⁴ was the most pronounced trait of German political psychology, one that was likely to be exacerbated, not erased, by another crushing defeat in war. This led to the key prescription: the Hitler regime vanquished, the Allies would need at all cost to “resist the temptation of a premature enlistment of Germans willing to share in their political reconstruction.” On this point Loewenstein was emphatic: “Be it repeated: No German government, and no government of any subdivision of prewar Germany, should be tolerated for a long time to come.”Footnote ⁵⁵ Loewenstein urged the Allies to plan for a prolonged period of unremitting “political tutelage” in the ways and means of democratic law, politics, and society.Footnote ⁵⁶

In July 1945, the war over in Europe and his new manuscript in press, Loewenstein was among the first to apply for a position with the AMG in Germany.Footnote ⁵⁷ On the strength of his credentials and on the (qualified) recommendation of Loewenstein's former boss at Justice,Footnote ⁵⁸ he was hired by Charles H. Fahy,Footnote ⁵⁹ (still) Solicitor General of the United States and newly appointed Director of Legal Division–Berlin. After twelve years' absence from Germany, now a distinguished scholar of modern European history, law, and politics, Loewenstein prepared to return to his homeland. Although perhaps not among the first rank of mid-twentieth century political thinkers,Footnote ⁶⁰ by a wide margin Loewenstein was the most learned and sophisticated expert employed by Legal Division–Berlin in the first phase of the occupation.

III. The Militant Bureaucrat: Loewenstein as Occupier

Legal Division–Berlin was set within a bewildering network of American and Allied agencies of occupation. With the other operational subdivisions of AMG in Germany, Legal Division was established as a department of the “United States Group Control Council” (USGCC). As such, it had functional responsibilities in the American zone and with regard to the American element of the ACC. In the winter of 1946, the USGCC was reconstituted as the “Office of Military Government United States Zone” (OMGUS) and remained under the command of General Lucius Clay. An instrument of the War Department, OMGUS was supervised from Washington by the newly minted Civil Affairs Division and its ranking officer, General John Hilldring.Footnote ⁶¹ It bears emphasis that OMGUS was a creature, if an exotic one, of the American military. It was led by regular army officers but staffed almost entirely by civilians of “assimilated” or honorary military rank. From the outset, the hybridized nature of AMG was a source of internal tension. Regular army officers dominated the organization and its privileges. Their clannishness, petty tyrannies, and tragicomic administrative ineptitude were frequently noted and bitterly resented by the (more numerous) civilian element.Footnote ⁶² These tensions were magnified by the fact that (for the first year of the occupation) civilian experts working for AMG in Berlin had to contend with yet another American military organization, the “United States Forces European Theater” (USFET) based in Frankfurt. USFET had managed civilian affairs in American-occupied Germany since its tactical units began to take German soil early in 1945. To the enormous frustration and annoyance of Legal Division–Berlin, USFET and its “entrenched staff” continued to exert influence over legal reform policy in the American zone until the winter of 1946.

The first Director of Legal Division–Berlin was Charles Fahy, a career New Deal lawyer.Footnote ⁶³ Fahy faced a hugely difficult mission. With a professional staff of fewer than forty persons,Footnote ⁶⁴ fewer than a third conversant with German language and laws, Fahy was to operate, as he himself described it, a “Department of Justice” de facto for American-occupied Germany.Footnote ⁶⁵ This he was to do with only three German-trained staff lawyers,Footnote ⁶⁶ only one of whom had practiced law in Germany during the Nazi period.Footnote ⁶⁷ The tiny handful of German jurists was bolstered by three Austrians and a dozen (inexpert) but German-literate American lawyers. As late as the end of December, 1945, moreover, this peculiar band of German legal reformers did not yet possess a complete library of German laws and treatises.Footnote ⁶⁸

The primary mission of Legal Division was to work (as a member of the four-power Legal Directorate of the ACC) to effect the “de-Nazification” and eventual “democratization” of German laws and legal personnel on a national basis.Footnote ⁶⁹ But Legal Division was also responsible for a long list of other vital tasks, including the coordination of American efforts in the prosecution of Nazi war criminals and the de-Nazification of German courts and prison systems situated within the three provinces (or Länder) of the American zone. It also fell upon Legal Division to provide legal advice to executive officers of AMG and its eleven operational subdivisions. (The Director of Legal Division himself was also chief legal counsel to General Lucius Clay.) Subject only to the (theoretical) intervention of General Clay, the Director of Legal Division wielded final decision-making authority on all questions of legal policy in American-occupied Germany.

Even as the war in Europe ended in May 1945, American planning for the political and legal transformation of Germany had barely begun.Footnote ⁷⁰ When Fahy began to organize Legal Division in June 1945, he was guided by three documents of roughly equal imprecision: the functional mandate imposed by AMG, the (notoriously vague) provisions of the Potsdam Declaration, and the (similarly vague) operational orders of the Joint Chiefs of Staff (JCS 1067).Footnote ⁷¹ When newly-recruited Division personnel left for Germany in early August 1945, these documents were their entire brief. Although some relevant planning work had been done by American and British lawyers working at Eisenhower's headquarters in 1944–45, it would appear that little to none of this work had been communicated to Legal Division.Footnote ⁷² In developing a blueprint for the de-Nazification of German law, Fahy and his staff virtually had to start from scratch.

From August 1945 through April 1946, Fahy the director and Loewenstein the expert were virtual embodiments of the confusions, cross-purposes, and unprincipled compromises that afflicted Legal Division from its inception. Fahy personified the dominant tendency in the organization. A native-born American lawyer,Footnote ⁷³ he was recruited from among the elite ranks of career federal government attorneys. He was a highly able and experienced litigation lawyer who had spent his career trying high-profile public law cases before federal tribunals and appellate courts.Footnote ⁷⁴ In his politics, Fahy was a Roosevelt man and a fervent New Deal Democrat. He was also a devout Catholic and a proponent of natural rights and American legal liberalism.Footnote ⁷⁵ He was widely admired for his courtly and gentle manner.

But like most executive officers at AMG, Fahy did not know much about nation building, or about the nation he was building. He neither read nor spoke German and lacked systematic learning in German political or legal affairs. When agencies of the federal government began to recruit executive officials for the occupation of Germany, Fahy, wartime solicitor general (and director of the new “War Division” of the Justice Department), had been pleading cases before the Supreme Court. His decision to accept the post as Director of Legal Division–Berlin had nothing to do with profound ideas or opinions about Germany or German democratization. By all indications, Fahy had none. He decided to go to Germany for a number of reasons: because the job had been pressed on him by a friend (Assistant Secretary of War, John McCloy); because of his growing interest in international law;Footnote ⁷⁶ because of a high sense of public duty; and, not inconsequentially, because it looked to be his best possible career move after the Truman Administration passed him over as attorney general.Footnote ⁷⁷ Here was something interesting and ostensibly important to do until the Democratic patronage machine yielded something better.Footnote ⁷⁸ There was yet another perquisite: As chief of a new organization, Fahy was given wide latitude in the appointment of his deputies. In exercising this prerogative, Fahy selected mainly on the basis of past personal association in the New Deal bureaucracy; he was especially keen on former cronies at the National Labor Relations Board.Footnote ⁷⁹ However, not one of these men had more than rudimentary knowledge of German law, language, or history.

With no background himself in German law or politics, Fahy's approach to legal reconstruction was always bound to be more pragmatic than programmatic. Although he was entirely inexperienced of Germany and military administration, he was a highly experienced American public servant. From his time in Washington, Fahy had learned, or thought he had, how to master a novel administrative task and improvise its structure and tools. In this sense he came to Germany prepared.

In stark contrast to Fahy, Loewenstein arrived at Legal Division bristling with ideas about Germany, its political and legal pathology, and the means of its cure. Eager to apply this thinking, Loewenstein had actively sought out his placement with Legal Division and had pressed his case with characteristic intensity. In fact, by nature and disposition, Loewenstein was almost comically unsuited to a subordinate position at Legal Division. Although highly intelligent and compulsively hard working, he was also an extremely intense and impatient man who, in an organizational setting, was often meddlesome, lecturing, and abrasive. These traits were exacerbated by the irony of Legal Division's command structure: Loewenstein, the German-born and trained intellect and lawyer was a minion—in Germany—of men who knew little about the country and could not speak its language.Footnote ⁸⁰ Although he had high regard for Fahy's personal character and integrity, Loewenstein did not think that he was remotely well qualified to direct the American legal mission in Germany.Footnote ⁸¹ Here were the ingredients of serious interpersonal conflict and acute organizational failure.

Loewenstein came to Berlin in early August 1945, about three weeks after Fahy. As the primary expert consultant to the Division, he was immediately and variously employed. Assigned to the Administration of Justice Branch, Loewenstein researched and wrote memoranda on German law and legal institutions and advised on law reform initiatives emanating both from Legal Division and the Legal Directorate of the ACC. He prepared briefing papers ahead of meetings. As one of the Division's handful of fluent German speakers, Loewenstein also was dispatched to interview German lawyers, judges, and bureaucrats. In this way he became, de facto, one of the Division's chief intelligence officers, gathering information on the operation of the Nazi legal system, and, pressingly, on the disposition, attitude, and responses of German jurists to the first phase of American legal de-Nazification.

In Loewenstein's opinion, the de-Nazification issue was “easily the most important single aspect of the occupation of Germany,”Footnote ⁸² an issue fraught with political, legal, and moral complexity.Footnote ⁸³ His operative assumption, confirmed by his first trips to the Americans zone, was that Germans, German jurists especially, would not own up to their complicity with Nazism.Footnote ⁸⁴ Although in 1933 the great majority of German legal professionals had not been members of the Nazi party, by the same large majority they were imbued with nationalistic and conservative political ideology. When the Nazi party seized control of the legal professions in 1933, only scant resistance had been offered against the ensuing “coordination.”Footnote ⁸⁵ The purge of Jewish and anti-Nazi jurists had been quickly and widely accepted, even abetted. By the late 1930s, the Weimar-era legal professions had been thoroughly compromised by Nazi ideology, programs, and legalized repression.Footnote ⁸⁶ When confronted by the American occupiers and their tough and inclusive de-Nazification policy, most German jurists adopted a strategy of solidarity and blanket denial.

This stance was strongly in evidence when Loewenstein met with a group of some twenty German lawyers in Bremen in early September 1945. The prevailing opinion among the group was that neither they, nor the German bar more generally defined, bore any special responsibility for the Hitler regime. In this view, Nazism and its crimes had been the work of a tiny clique of zealots and criminals. “Not a single one of the anti-Nazi lawyers I talked to,” Loewenstein wrote in his diary, “seemed to be aware that the Nazis were a majority of the German people.”Footnote ⁸⁷ Although great anxiety was expressed at the prospect of losing careers to an indiscriminate purge,Footnote ⁸⁸ “the problem of German guilt is wholly absent.” The common perception among the Bremen lawyers—by German standards, a comparatively liberal bar—was not that “the [Nazi regime] was wrong, only…that it did not succeed.”Footnote ⁸⁹ Loewenstein came away from the Bremen meeting with increased conviction that authentic de-Nazification would be the product only of “constant control.”Footnote ⁹⁰

By the same token, Loewenstein did not think that the Germans could simply be compelled to become good liberal democrats. Nor did he subscribe, even as an ethnic Jew whose German family and career had been shattered by Nazism, to the collective punishment of the German people. Once the worst Nazis criminals had been dealt with, the way forward in Germany was in the careful design and relentless implementation of an “educational campaign”Footnote ⁹¹ based on “instruments of political tutelage,” not repression. In Loewenstein's view, “Democracy is as much a technique which has to be learned as an ideology which can be acquired…Under these conditions it cannot be expected that democratic reconstruction will grow organically out of the living conscience of the German people by a wave of the magic wand.”Footnote ⁹² In their habitual submissiveness and passivity, the German masses were too “mentally sick” to respond to a program of rapid democratization.Footnote ⁹³ If democracy would grow at all, it would be as a result of careful and intensive cultivation of a new German legal and political elite operating within a thoroughly de-Nazified legal and political system.

For Loewenstein “legal de-Nazification” implied the deliberate reconstitution both of Nazi-era legal personnel and statute books.Footnote ⁹⁴ Both tasks, he underlined in an early memorandum to Fahy, would present extremely difficult theoretical and administrative challenges. On the personnel side, the core problem was the broad and deep distribution of Nazi party membership in German society generally,Footnote ⁹⁵ the German legal professions particularly. By 1945, at least 80 percent of all serving German judges, prosecutors, and legal bureaucrats, on their own initiative or by rule, had become party members.Footnote ⁹⁶ (Among private lawyers, rates of membership were lower and varied substantially by region, from less than 20 percent in northern cities such as Bremen, to more than half in some Bavarian cities such as Munich.Footnote ⁹⁷) The problem had been made worse by the fact that the de-Nazification program in the American zone had gotten off to a dreadful start.Footnote ⁹⁸ Before the surrender, the de-Nazification directives had been applied haphazardly. After the surrender, they were sometimes enforced with dogmatic strictness, especially in regard to office-holding members of the legal profession.Footnote ⁹⁹ By the time Legal Division was activated in July 1945, the American de-Nazification program, in Loewenstein's view, was an “unbelievable chaos.”Footnote ¹⁰⁰

Loewenstein's first memorandum to Fahy on de-Nazification canvassed the moral and political complexities of the issue. It was probable, he advised, that a program of “indiscriminate removal” of jurists based solely upon membership in the Nazi Party, even if right in principle, would prove impractical (it would leave too few experienced judges and legal technocrats to operate a revamped system of justiceFootnote ¹⁰¹) and impolitic (too many influential Germans, including most anti-Nazis, saw such policy as unjust). German jurists were themselves imploring AMG to adopt more individualized and discriminating criteria for disqualification. After all, so they argued, many jurists were only “nominal” members of the Nazi Party, and had joined only when refusal was certain to mean loss of jobs or pensions. By the same token, many ardent supporters of National Socialism never joined (or had been denied membership in) the Party. To punish everyone in the first category, but few or none in the second, was to offend justice. An argument could be made, was being made by German jurists, that the blanket enforcement of the de-Nazification policy was likely to damage American prestige and render Germany more difficult to govern and reform.Footnote ¹⁰²

Loewenstein's memorandum acknowledged these arguments, but it also probed their weaknesses. He noted, for instance, that the outcry of German lawyers against the indiscriminate injustice was blatantly hypocritical, being “conspicuously at variance with the [attitude] adopted by the legal profession when the Jewish lawyers…were dismissed. At that time neither the bench nor the bar raised a hand to save their fellow members.” When the Nazis came to power, the individual merit or demerit of Jewish lawyers had counted for nothing. Nor was Loewenstein persuaded that there was a coherent moral distinction between the “nominal” and “real” Nazi. Although it had taken great courage for judges and prosecutors to choose not to serve the Nazi state, some had done so (and had not been persecutedFootnote ¹⁰³). As for Germany's private lawyers, Loewenstein had not heard of a single case in which “pressure was brought to bear on members of the bar to join the party.” Some of the Nazi lawyers undoubtedly were otherwise honorable men. But the question of motive for joining the Party, whether ideological conviction or naked self-interest, seemed secondary to what had been in its name. In Loewenstein's estimation, the true believers and opportunists were equally culpable for having “trampled underfoot the rule of law and justice under law.” Both kinds of men were equally unfit for the practice of law in a democracy.

As he labored to develop a rational and morally defensible policy on legal de-Nazification in the American zone, Loewenstein held fast to two basic precepts. The first was that the purge of Nazi jurists, if it could not be comprehensive, had to be extensive.Footnote ¹⁰⁴ Certainly all Nazi Party activists and policy makers had to be expelled. His second precept was that this goal was achievable only by an American-controlled program of identification and expulsion. “It cannot be too strongly emphasized,” he informed Fahy, “that [de-Nazification] committees composed of Germans alone would utterly fail.”Footnote ¹⁰⁵ Such committees, even if operated by anti-Nazi lawyers of unimpeachable credentials, would swiftly be undermined by the “solidarity of the legal profession, the pressure of [German] public opinion, the effort to mitigate the rigors of the denazification policy, [and] the understandable desire to let as many fellow-citizens as possible escape from the consequences of party membership and the lost war.” For the German lawyers, the fight against de-Nazification was not only about jobs, but about the reassertion of power and prestige in their home communities. In resisting the American program, they sought “to appear before their fellow countrymen as the defenders and protectors of the community against the retribution to be meted out against it as a whole.” In causing the Americans to make nice distinctions between “nominal” and “real” Nazis, the jurists wanted to demonstrate their political value to the German community. For these reasons Loewenstein's advice was unequivocal: “Under no circumstances should the de-Nazification of the legal profession be entrusted to the Germans themselves, and not even to recognized anti-Nazis among them.”

But just as Loewenstein rendered this advice, the chief decision makers at AMG headquarters began to move de-Nazification policy in the opposite direction. In October 1945, General Clay, now convinced that an American-administered program of de-Nazification could not succeed, accepted Fahy's advice to strike a high-level committee (the “Denazification Policy Board”Footnote ¹⁰⁶) to undertake a thorough review of available options for the American zone.Footnote ¹⁰⁷ With Fahy himself at the helm, the Board's mandate was to devise viable means of turning de-Nazification over to Germans, even at risk of far more lenient treatment of tens of thousands of “nominal” members of the Nazi Party.Footnote ¹⁰⁸ As the work of the Policy Board unfolded in November 1945, the senior legal officer at USFET (the German-born lawyer and now American army officer, Major Fritz OppenheimerFootnote ¹⁰⁹) was brought in to work with German officials in the development of a plan. Strongly in favor of the swift “Germanification” of de-Nazification,Footnote ¹¹⁰ Oppenheimer focused on a Bavarian proposal calling for a system of local de-Nazification tribunals (or spruchkammer) to be staffed by dependably anti-Nazi Germans. In early December, Clay requested that the minister–presidents of the German Länder meet to draft a “uniform regulation of de-Nazification”Footnote ¹¹¹ based upon the Bavarian initiative. By late December, the Ministers' draft was in the hands of Fahy's Policy Board.

Meanwhile, and in the wake of many more meetings with German jurists, Loewenstein's views on de-Nazification were hardening in the opposite direction. On November 30 he reported to Fahy that, “There is not the slightest trace or sense of collective guilt among the Germans. Former membership in the party is not considered a stigma.”Footnote ¹¹² The main source of the Nazi party's strength was that it had “derived its power from the mass of its supporters,” drawing members from all regions and walks of life. Individual autonomy and responsibility had been subsumed within the overarching purposes of the Party. That was why “the notion of a ‘nominal’ party member is unintelligible,” just as it was unintelligible to excuse nominal (or lateFootnote ¹¹³) membership because it was motivated by private advantage. If “nominal” party membership, Loewenstein wrote, “means that a person has abstained from torturing prisoners or that he has not burned people in the stoves at Auschwitz it is hardly serviceable, because it merely draws a line between the activists and the rest.”Footnote ¹¹⁴ After all, the contributions of “the rest” had been vital to the realization of the Nazi program. For this reason Loewenstein now recommended that, with regard to public professions such as law, “no former member of the Nazi Party, whether activist or merely nominal [or as an active supporter without membership]…should be tolerated except as [an] ordinary worker.” The Nazis, just as the Nuremberg prosecutors alleged, had been a criminal organization, and “Guilt by association,” Loewenstein concluded (now in his diary), “is the only way of getting rid of subversive associations.”Footnote ¹¹⁵ If democratization was to achieve permanent reform in the legal field, there was no scope for compromise on this point. The rapid restoration of former Nazis to important offices in the legal system would “constitute a serious danger to the future of the democratization of Germany as a whole.”Footnote ¹¹⁶

Before the debate over de-Nazification policy came to a head in the late fall of 1945, Loewenstein perceived that leading officials at AMG were going soft on the Germans. If indeed the American leadership had come to Germany with an appropriate fear and loathing of Nazism and Nazi jurists (and here there was room for doubt), these convictions now were being eroded “by the fraternization between the American Military Detachment and the German legal profession.”Footnote ¹¹⁷ In their various engagements with the American occupiers, German legal officials–educated, urbane, white-skinned–were apt to tell convincing tales of how they themselves had not been Nazis, had never supported the Nazis, and fully approved of the purge of the few genuine Nazis who had survived the war.Footnote ¹¹⁸ Loewenstein was alarmed that his bosses at Legal Division were lending credence to such claims. More alarmingly, however, two of the most prominent German-Jewish émigrés with AMG, Fritz Oppenheimer and Max Rheinstein, also began to endorse a lenient policy on “nominal” Nazi lawyers and judges.Footnote ¹¹⁹ A full-scale retreat from a stern and American-controlled policy of de-Nazification now seemed imminent.

And so it was. When leading American legal officials met with the German ministers of justice of the three south German Länder on December 18, 1945, the main topic of discussion was not if there would be German-operated de-Nazification tribunals, but their composition and procedures.Footnote ¹²⁰ Two days later, Fahy's Policy Board issued a preliminary report reaffirming the purge from public life all Germans who had “held positions of leadership and authority in Nazi regime”. But the Board also recommended that de-Nazification be reconfigured as a “popular program,” one which relied mainly on German judgment about the culpability of ex-Nazis.Footnote ¹²¹ In early January 1946, Loewenstein was afforded a final opportunity to advise Fahy on this policy.Footnote ¹²² He did not withhold himself. Although conceding that any wholesale or indiscriminate program of de-Nazification was impractical, Loewenstein was unyielding in his conviction that it would be a grave error to cede control of the process even to “congenitally anti-Nazi” Germans.Footnote ¹²³ As his brief explained, “even the anti-Nazis…are good Germans and they have to live with their people.” In applying the new law, even steadfast anti-Nazis would be inclined to “protect the German people” against foreign occupiers. Their decisions would be guided by the general “climate of misery” in Germany, not by “abstract principles of justice.”Footnote ¹²⁴ In the result, the American de-Nazification program would be reduced to a “superficial gesture.”Footnote ¹²⁵

In the final report, dated January 15, 1946, Fahy's Policy Board recommended that General Clay adopt the German de-Nazification plan as the basic framework of reform. After further consultation with the land ministers of justice, the plan was to be fine-tuned and sent back to Clay for final approval. The Policy Board offered one caveat: the new de-Nazification law would require “effective supervision and policing by Military Government.”Footnote ¹²⁶ Clay activated the directive on March 5, 1946, informing the minister–presidents that they would be held “strictly accountable for the effective and just enforcement of the law.”Footnote ¹²⁷ Loewenstein's objections, if they had not been ignored, had been decisively overruled. The decision had come down to pragmatic judgment about what was possible. As Clay informed the War Department in March 1946, he had turned de-Nazification over to Germans for the uncomplicated reason that AMG was incapable of doing the job.Footnote ¹²⁸ At the end of the day, the ensuing risks had to be taken, even over the strenuous protest of “experts” such as Loewenstein and, more consequentially, over the weight of public opinion in America.Footnote ¹²⁹

Loewenstein was never reconciled to Clay's decision. Its upshot (as he explained to Fahy) was that any prospect of exerting firm control over the pace and durability of German democratization now had “slipped out of our hands, and…we had better admit the failure.”Footnote ¹³⁰ The new program, he glumly predicted, would ensure that “95% of the Nazis will slip through the meshes of the tribunals…and be reinstated.” Equally predictable was the dire impact of the decision on Loewenstein's personal prestige and morale. He was coming to realize about Legal Division and about AMG as a whole, that key policy decisions would be the product, not of open-ended debate informed by experts, but of the fiat of executive officials. Going forward, what troubled Loewenstein was not merely that his advice had been overruled, but that it had been marginalized even as a factor of debate. In presiding over the de-Nazification policy review, Fahy's purpose had been to provide the legal structure for a decision that had already been made by General Clay. Any person or idea that threatened to impede the process was cast aside. “This is the way Military Government is conducted,” Loewenstein lamented in January 1946, “the experts advise against something and the General does what he pleases.”Footnote ¹³¹

In the six months since he arrived in Berlin, Loewenstein had travelled widely in the American zone, and had conferred with scores of German and American officials. He had rendered reports on a myriad of subjects, ranging from the organization and methodology of the Division, to the reform of German substantive law and agenda for forthcoming conferences on the reconstruction of the German judiciary and bar.Footnote ¹³² Although the dramatic shift in de-Nazification policy was the primary reason that he had wasted his time in Germany, by no means was it the only source. In the winter of 1946, Legal Division still had barely begun to plan, still less to activate, key programs of German law reform.

As we have seen, the Potsdam Protocol mandated the abolition of “all Nazis laws.” The comprehensive elimination of Nazi influences in German law was (as Loewenstein advised Fahy) a “gigantic undertaking.”Footnote ¹³³ One reason was that from 1933 until the end of the war, the Nazis had been insinuating their ideology “into every legislative nook and cranny, and into legal fields of seemingly neutral character politically…”Footnote ¹³⁴ Whereas it had been relatively uncomplicated to identify and eliminate the most flagrantly racist and repressive Nazi laws,Footnote ¹³⁵ in many other instances the influence of the “Nazi world outlook” on law and procedure was likely to be subtle and ambiguous. In undertaking a careful survey of Nazi-era laws, Loewenstein reckoned, Allied legal staffs would be taxed “to capacity.”Footnote ¹³⁶ As matters stood at Legal Division in the late autumn of 1945, however, there was no detailed plan for the comprehensive assessment and reform of Nazi-era German lawsFootnote ¹³⁷ and no realistic capacity to execute one, once made. Nor had any work been done on the complex theoretical issues raised by legal de-Nazification:Footnote ¹³⁸ On what criteria were German laws, or parts of laws, to be considered “Nazified”? How was one to deal with the legal vacuum and lacunae created by the abrogation of Nazi law? Once made, how was American policy to be reconciled with the policies of three Allies? What was to be the main goal of American law reform policy: to reset German legal clocks to the last day of the Weimar Republic, or to move forward to some different “liberal democratic” setting?

In Loewenstein's judgment, there were good reasons why there was no going back to January 30, 1933.Footnote ¹³⁹ The Nazis had made irreversible changes to German political economy. After 1933, “state control” of the new national conglomerates and cartels had become pervasive and, in Loewenstein's view, altogether necessary. Their removal would greatly hamper Germany's socio-economic recovery and impede, perhaps derail, its political democratization. In this regard Loewenstein's second claim was even more striking: “Not a few of the laws enacted under the Nazi regime,” he informed Fahy, “contain genuine progress in legal evolution, partly in fulfillment of legislative demands of long standing.” In a number of instances, moreover, Nazi lawmakers had completed legal reforms that had been previously proposed during Weimar.Footnote ¹⁴⁰ These reforms, though promulgated by the Nazis, had been undertaken with the “full concurrence of legal science and public opinion.” In a number of instances, Loewenstein summarized, Hitler-era legislation, “even though outwardly based on Nazi ideology [was] progressive and, on the whole, beneficial.” For these reasons, any Allied policy that aimed to simply restore the German legal status quo (of 1932) would be misguided, anachronistic and, in some instances, retrograde.

Loewenstein recommended a phased course of action on German law reform. In the first phase, Legal Division lawyers would prioritize the amendment (or abrogation) of the German statute book. Priority was to be given to laws that “affect the most people directly,” such as marriage, succession and criminal laws.Footnote ¹⁴¹ In the second phase “considerable sections” of German law would be redrafted. During both phases of the project, Loewenstein emphasized, it would be essential to enlist a large number of German lawyers. Not only did German experts know their own laws better, but their active participation was more likely to garner “at least a modicum of German consent.”Footnote ¹⁴² In Loewenstein's opinion, the appropriate role for the Americans in this process was one of general supervision and direction.

Loewenstein also believed that the reform of many German laws would need to be undertaken on a national basis and therefore by consent of all four members of the ACC.Footnote ¹⁴³ Consequently, the Americans needed both a general policy on German law reform and a diplomatic strategy for its realization. Early in 1946, Legal Division still had neither. Although in September 1945, some staff (including Loewenstein himself) had begun to work on the revision of (among other areas) German criminal law and procedure, marriage, succession, and administrative law, the problems here were manifold. Reform initiatives were started without adequate information about what other Allied lawyers were doing on the same issues.Footnote ¹⁴⁴ At Legal Division, complex problems had been assigned to lawyers lacking expertise in the relevant German law.Footnote ¹⁴⁵ When the Legal Directorate of the ACC first convened in September 1945,Footnote ¹⁴⁶ it soon had become obvious that there was no basis of consensus either on the methodology or substance of a nationwide law reform program.Footnote ¹⁴⁷ For lack of a better option, the Directorate proceeded to examine Nazi-era legislation on a more or less random basis. Finally, in February 1946, the ACC intervened to create the “German Law Revision Committee” to tackle the problem more systematically.Footnote ¹⁴⁸ However, the new Committee did not meet until March 21, and then took many more weeks to agree on how to divide labor. By the time its work was begun in earnest late in 1946, the ACC, never an effective means of German government, already had begun to unravel.

By this time, Loewenstein's professional (and personal) relationships with his superiors at Legal Division–Berlin had all but broken down. He now had been either overruled or ignored with regard to a number of important issues. Another blow came in December 1945, when Fahy shelved one of Loewenstein's pet projects (the organization in the American zone of a new German-operated Ministry of Justice staffed by leading anti-Nazi lawyersFootnote ¹⁴⁹) and with it (as Loewenstein saw it) the “only constructive proposal” mounted by Legal Division in the first five months of its existence. In the same month Fahy also had failed to endorse Loewenstein's bid to become the Division's chief representative at the first general meeting of the Länder ministers of justice.Footnote ¹⁵⁰ Just as these issues came to a head, it was revealed that a panel of German judges in Bremen, men who only weeks before had been restored to the bench by Legal Division, had applied Nazi-era military law in sentencing a German army deserter to a long sentence of hard labor.Footnote ¹⁵¹ For Loewenstein this incident confirmed his view that the Division was moving too quickly, even recklessly, on judicial de-Nazification. If the judges of the Third Reich were to be returned to their former offices, if this was to happen in a manner not wholly inconsistent with the liberal democratization of German society, Legal Division would need to devise and implement a program of intensive reeducation and vigilant supervision. When the draft of his memo (to Fahy) to this effect was intercepted and pulled by his immediate superior, Loewenstein threatened to resign.Footnote ¹⁵² Then, in early January 1946, when final consideration of another of Loewenstein's projects (German bar reform) was delayed by the objections of other staff, Loewenstein, in his own words, twice “exploded” with rage.Footnote ¹⁵³ Demoralized, on the brink of nervous exhaustion, Loewenstein now feared that he had entirely “washed out” as an expert consultant.Footnote ¹⁵⁴ On January 13 he met with Fahy to discuss the terms of his resignation.Footnote ¹⁵⁵ As a result, Loewenstein was persuaded to stay on. He might not influence the shape of world events from his office at Legal Division. He surely would not influence them from his office at Amherst. If nothing else he had an ideal vantage point from which to observe one of the great (if failed) experiments of modern history. For the student of politics, Loewenstein consoled himself, there could be no better place: “Why not just stand by, observe, [and] get as much out of this as possible?”Footnote ¹⁵⁶ It was also rumored that Fahy was soon to resign. Maybe, under new management, Loewenstein's prospects for an effective role would improve.

This optimism was misplaced. In the winter of 1946, Loewenstein detected no improvement either in the operations of Legal Division or in his own predicament. Then, in early April 1946, Fahy disclosed that he would resign from Legal Division (for a place with the State Department) by the end of May. Loewenstein's hopes were dashed when it became known that Fahy's successor would be Judge J. Warren Madden, his deputy director and longtime friend. Madden was an experienced American jurist and legal administrator. Like Fahy, he was a former New Deal lawyer who had come to Berlin without special expertise in German law or culture.Footnote ¹⁵⁷ Like Fahy, too, Madden came without deep convictions about either German legal Nazism or the means of its eradication. Madden was another administrative pragmatist, ready to adjust American law reform policy as his circumstances required. By May 1946, compromise was the order of the day. By now it was clear to all the executive officers of AMG that the ACC was not, and would not, become a viable instrument of government. If German law and politics were to be reconstituted, it would not be on national basis or by quadpartite action.Footnote ¹⁵⁸ Although the ACC and its subcommittees continued to meet, the main focus of AMG now was on the American zone, more particularly on preparing America's Germans for their first provincial or “land” elections under occupation.Footnote ¹⁵⁹ To this end, the (appointed) minister–presidents of the Länder were granted broad authority to govern their regions under American supervision.Footnote ¹⁶⁰ In order to streamline the creation and supervision of German policy within the zone, a general council or “Länderrat” of minister–presidents was established in Stuttgart in October 1945. Within a year of the surrender, the Americans already had begun to reinvent themselves as the indirect governors of their zone.

One important facet of the new policy was the restoration of German trial and appellate courts systems in the Länder of the American zone. A few German local courts (of severely restricted jurisdiction) had been opened by USFET in the summer of 1945.Footnote ¹⁶¹ Then, in October 1945, the ACC proclaimed its intention to “establish a new democratic judicial system” in Germany, one founded on the independence of judges from “executive control”.Footnote ¹⁶² Two weeks later, the Council also agreed to permit the military governor in each zone to re-establish the pre-Nazi system of German local and regional courts.Footnote ¹⁶³ In the American zone, initial responsibility for the program was delegated to the land ministers of justice. This was a momentous step, and, as we have seen, one for which (so Loewenstein thought) Legal Division was demonstrably unprepared.Footnote ¹⁶⁴ There were no answers to three pivotal questions: How were the German justice ministers to overcome the chronic shortage of qualified non-Nazi judges and prosecutors? Were the Americans prepared to tolerate the appointment of jurists who had been categorized (now by German-operated de-Nazification tribunals) as “nominal” Nazis? Finally, and most crucially, by what criteria and mechanism would German judges and prosecutors be supervised and, if necessary, controlled? With de-Nazification now in the hands of Germans, Loewenstein contended, a quick and sure answer to the last question had become “all the more necessary”.Footnote ¹⁶⁵

But a quick and sure answer was not found. The reopened courts immediately created serious problems for Legal Division.Footnote ¹⁶⁶ The first round of judicial appointments included a great many elderly or otherwise poorly qualified applicants. The second round included many former members of the Nazi party, now freshly “cleansed” by German-operated de-Nazification tribunals. In the absence of close supervision, Loewenstein warned in January 1946, AMG bore significant risk that the courts would “relapse into the antidemocratic habits as occurred after 1918.”Footnote ¹⁶⁷ As matters stood in early March 1946, there still was “no way of checking on German courts, and things are sliding out of our hands.”Footnote ¹⁶⁸ In a detailed memorandum submitted to Fahy, Loewenstein explained why the Division needed to monitor and control reopened German courts and prosecutorial offices. Whereas few of the reappointed judges had been ardent Nazis, it was equally true that “Few of them were active anti-Nazis, that is, persons who actually opposed the regime” [emphasis added].Footnote ¹⁶⁹ Most German judges and prosecutors, whether or not they had been members of the Nazi party, were instinctively illiberal and nationalistic. As members of an elite segment of the powerful German civil service, they had been selected, trained, and indoctrinated in an especially anti-democratic ethos.Footnote ¹⁷⁰ “Democratic conviction as it is understood in the Anglo–Saxon countries,” Loewenstein advised, “cannot be assumed to be deep-rooted in this group.”Footnote ¹⁷¹

Nor had German judges ever been politically neutral. During the Weimar Republic, they had consistently defended the prerogatives of the state at the expense of liberty and democracy.Footnote ¹⁷² During the Hitler regime, most had been willing to implement the most viciously racist and repressive articles of Nazi law. In their basic ethic of judicial decision making, Loewenstein contended, German judges were “legalists and positivists and will apply the law even if it is bad law. Without supervision, the courts sooner or later will become “the instruments of reaction…”Footnote ¹⁷³ At present, he reminded Fahy, “the only guarantee of justice in accordance with democratic law is the personality of the individual judge and the supervisory capacity of the [German] land government and its minister of justice.” Although the current group of German Ministers could be counted on to prevent obvious abuses, the forthcoming elections in the Länder seemed certain to return power to men whose “obedience to Military Government and devotion to democratic principles may [not] be taken for granted.” This was why the close supervision of the German courts by AMG “must be made a reality.” If supervision came at the price of complete judicial independence, this was the justifiable cost of an appropriately “militant” policy of democratization.Footnote ¹⁷⁴

Loewenstein proposed that Legal Division work with American legal officers at the land level to set up a system of “continuous inspections on circuit”.Footnote ¹⁷⁵ The inspections, a series of “spot checks,” would be undertaken by “persons fully conversant with German language and German law…[by officers] with the fullest possible grasp of the existing German legislation.” In addition, the court inspectors would closely review decisions in cases bearing obvious “political implications.” Toward this end, Legal Division needed to recruit and train a cadre of German lawyers to observe court proceedings, gather intelligence on judicial and prosecutorial actions, and read and evaluate legal decisions.Footnote ¹⁷⁶ Equally imperative was the need for Legal Division to devise a program for the instruction of German judges and prosecutors in liberal democratic legal and political norms.

In the wake of Fahy's resignation, the final decision on these issues fell to Warren Madden. Madden found Loewenstein's advice wanting in a number of important respects. The systematic supervision and control of judges, he believed, contradicted the fundamental democratic precept of judicial independence.Footnote ¹⁷⁷ Madden believed that no judge fit for his position would accept the potentially intrusive oversight of an outside agency. Further to the point, Legal Division had neither the time nor the money to train a staff of German court inspectors. In Madden's view, the only practicable way forward was for the Division to develop a system of internal supervision by the ministers of justice of the Länder. In short, Madden thought it would suffice for rehabilitated Germans to police their own courts. Aware of Loewenstein's intransigence, Madden invited other staff at Legal Division, men he knew to be more sanguine about German dependability in such matters,Footnote ¹⁷⁸ to come up with a plan.

When the plan reached Loewenstein for comment in late May 1946,Footnote ¹⁷⁹ once again he found himself fighting a rear-guard action against (what he saw as) a profoundly flawed and misguided policy. Although he now conceded that direct American control of German courts was not feasible, Loewenstein did not retract his central point: “The generation of judges and public prosecutors now in office,” Loewenstein cautioned, “is basically and intrinsically not democratically-minded; at best they are indifferent to democratic values.” In Loewenstein's view there were telltale signs that the “the attitude of the German people towards the occupation authorities has stiffened,” and that inadequately supervised German legal officials would be emboldened in their resistance to democratic reforms. Privately, Loewenstein thought that Legal Division's current courts supervision initiative “had been watered down to such an extent that it became almost meaningless.”Footnote ¹⁸⁰ (He also privately believed that the Americans in charge of the German courts program at Legal Division, the career army lawyer, Colonel Ernest McLendon, and the civilian lawyer, Norman Shepard, were hopelessly ill equipped for the courts assignment.Footnote ¹⁸¹) But in his official memorandum to Madden, Loewenstein suggested a compromise. If a German-operated system of internal controls was unavoidable, so be it. But it was vital in this case to insist that the land ministers of justice be insulated from outside political interference. Effective mechanisms also had to be created to permit citizens to complain about (and find redress for) judicial and prosecutorial abuses. If introduced quickly, these mechanisms might be “acceptable to the German authorities.” But, should AMG hesitate, the obstacles to reform were likely to become “insurmountable”.Footnote ¹⁸²

Loewenstein's advice was again overruled. German courts were reactivated and restaffed with virtually no American supervision.Footnote ¹⁸³ By the late spring of 1946, AMG was now fully committed to the rapid reactivation of the German institutions and economy in the western zones,Footnote ¹⁸⁴ including the reactivation of the German legal system. For those (such as Madden) in charge of subdivisions of AMG, any expert advice that was likely to inhibit this policy, no matter how well-informed, was no longer acceptable. It can be readily understood, therefore, that when asked to provide counsel on the reform of the German bar, Loewenstein was not optimistic that his input would matter.

For Loewenstein, himself once a German lawyer and law professor, the question of how to reform the organization, ethics, and education of legal professionals was close to mind and heart. The Nazis had prematurely ended his legal career in Germany. And, as German lawyers watched (or assisted), the Nazis had ended the careers—and lives—of many professional friends and colleagues. With regard to the reform of the bar, Loewenstein found slight encouragement in the fact that most of Germany's private lawyers had not joined the Nazi Party and otherwise “had stood the moral test of the Nazi period much better than the court personnel (judicial and public prosecutors).”Footnote ¹⁸⁵ This was something to build upon. Unfortunately, however, in the first six months of the occupation, the recertification of lawyers in the American zone had been undertaken by USFET officers in charge of local detachments of AMG. Inadequately briefed and supervised, the officers produced a “chaos” of ad hoc decisions about the practice of law in the American zone.Footnote ¹⁸⁶ Some former Nazi party members—no one knew how many—had secured permission to resume their law practices within the “voluntary bar associations” that had been hastily organized by the German justice ministers in the American Länder. At Legal Division, little was known about their charters or activities.Footnote ¹⁸⁷ In early December 1945, and as USFET was about to turn over all legal work to Berlin, Fahy invited Loewenstein to prepare draft legislation governing all aspects of German legal–professional life in the American zone, including the crucial question of criteria for initial qualification and readmission to the postwar German bar.

Loewenstein's first draft (sent to MaddenFootnote ¹⁸⁸) focused on the question of the training and qualification of new lawyers. His main recommendation was for the general restoration of the Weimar system of legal education and bar admission.Footnote ¹⁸⁹ This would involve the reintroduction of national standards of legal education, but regional standards of preparatory training and (qualifying) examination. After further internal (and, from Loewenstein's viewpoint, “amateurish”Footnote ¹⁹⁰) consultation, a second draft of the bar reform proposal was prepared and sent to the land ministers of justice in February 1946. Meanwhile, in the Legal Directorate of the ACC, the Soviets called for the uniform regulation of legal education and bar admission on a quadpartite basis. The idea quickly garnered opposition from the ministers of justice in the American Länder.Footnote ¹⁹¹ It also stimulated Legal Division to step up the pace of work on bar reform.

When asked (by new Director Madden) to comment on the Soviet plan, Loewenstein urged caution.Footnote ¹⁹² He agreed (with the justice ministers of the German Länder) that in imposing national uniformity in bar admission the Allies would contradict the decentralizing aims both of the Potsdam Protocol and the (commendable) German tradition of regional autonomy in this field. Loewenstein was opposed to the sweeping and “top down” character of the program. If the main goal of the Allies was to democratize the German bar, the better option was to focus on the “theoretical education” of new lawyers.Footnote ¹⁹³ There were good reasons, moreover, to inhibit the easy movement of German lawyers to places where they had “no roots in the community.” In a period of social and economic dislocation, excessive freedom of this kind would “necessarily encourage the sharp practices of unfettered competition which in the past contributed much to the lowering of professional standards.” On this basis, the best course for Legal Division was to oppose the Soviet initiative as it continued to work on a comprehensive program of legal education and bar reform in the American zone.

In early June, and after consultation with the ministers of justice, Loewenstein submitted a final draft of the bar reform law.Footnote ¹⁹⁴ The scheme called for substantial regional autonomy in bar admission and governance, subject to a set of compulsory requirements.Footnote ¹⁹⁵ Each land would be obliged to establish a new bar association on a particular constitutional model. Consistent with the German custom of an integrated bar, membership-in-good-standing was to be a condition both of law practice and the judiciary. A “governing board” (elected by secret ballot of members only) would oversee each association's administrative and budgetary functions, as well as the admission and discipline of members. Provision was also made for the orderly absorption of de-Nazified and refugee lawyers. Most crucially, however, in discharging their basic administrative functions, the governing boards of the land bar associations were to enjoy legal independence from the oversight of politicians and civil servants.

In his closing memorandum to Madden on bar reform, Loewenstein described his draft law as so “urgently needed” by the land ministers of justice (particularly as they struggled with admission of de-Nazified and immigrant lawyers) that it “should no longer be subjected to the scrutiny of other experts in Legal Division.”Footnote ¹⁹⁶ He further recommended that AMG permit the Länder to legislate the reforms into law as their own bills, greatly enhancing their legitimacy in the eyes of Germans. Finally, Loewenstein entreated Madden to press the ACC to adopt his draft as a basis of bar reform in the entire German territory. In a rare victory for Loewenstein, both proposals were accepted. In November 1946 (four months after Loewenstein returned to the United States), the three south German Länder passed bar reform bills modeled largely on Loewenstein's final draft.Footnote ¹⁹⁷

While he worked on bar reform, Loewenstein also remained heavily involved in the issue of university-based legal education in Germany. In his many communications with Fahy (then MaddenFootnote ¹⁹⁸) on the subject, Loewenstein invariably emphasized the “paramount importance” of academic legal education as a “key-stone of a democratically-rebuilt Hall of Justice in Germany.”Footnote ¹⁹⁹ Swift reform in this field was particularly urgent because the great majority of postwar German law students had been reared in the “militaristic atmosphere of the German army.” Making matters still more difficult was the fact (so Loewenstein contended) that, “No other branch of academic life [in south Germany] had been so thoroughly Nazified as the law faculties.” In Loewenstein's estimation, most German law faculty who had survived the purges of 1933–34, or were appointed in their wake, were either ardent ideological Nazis or conservative nationalists aligned with the Nazis. In both guises, law professors were certain to prove one of most “democracy-resistant groups” in American-occupied Germany.Footnote ²⁰⁰

In April 1946, Loewenstein undertook a fact-finding mission to the recently reopened law schools of Bavaria. He was to find out what was being taught, by and to whom. Before making his report, Loewenstein consulted with American-appointed German officials in the land ministries of law and education, and with university officials, professors and students at several institutions, most extensively at the law school at the University of Munich, Loewenstein's alma mater and former employer.

In the preface to his long report (to Fahy) on the mission, Loewenstein informed his chief that “the situation in the Bavarian law schools appears deplorable from the viewpoint of legal education as well as from that of creating the basis of a democratization of German cultural life.”Footnote ²⁰¹ The problems were many and serious. At Munich, only two members of the faculty had not been Nazis and could be immediately reappointed. Of these two, one was a nonentity, the other an Austrian-born Nazi fellow traveler. Munich's (acting) dean, Professor Mueller–Erzbach, had been “dug out from oblivion” because no qualified person had been available. Mueller–Erzbach, in Loewenstein's opinion, was an unreconstructed German nationalist who, during his interview, had ranted about the “injustices of the Treaty of Versailles, the spoliation of German colonies [and German] rights to lebensraum.” With regard to faculty renewal, the acting dean's policy was to hold open the positions of ex-Nazis, even those who had published pro-Nazi legal treatises,Footnote ²⁰² until they could be exonerated by (reliably forgiving) Bavarian de-Nazification tribunals. Further to this policy, no effort was being made to identify and reappoint faculty who had been purged by the Nazis. According to Loewenstein's investigation, moreover, Mueller–Erzbach was being supported in these policies by a network of former Nazis still embedded in Land–Bavaria's Ministry of Education. In the result, the University of Munich continued, even under American auspices, to be a safe haven for “more than forty active Nazis, many among them in influential teaching positions.”Footnote ²⁰³

When he reported these findings to Fahy, Loewenstein recorded in his diary that his boss did not seem to take them seriously. Instead, he was actually “reproached” for pressing for action that was more properly the responsibility of the Education Branch of the Internal Affairs Division.Footnote ²⁰⁴ Preoccupied with these bureaucratic niceties, Fahy (so Loewenstein perceived) seemed oblivious to a far more crucial point: that “without good law teachers in the place of the present bastards, there is not the slightest hope of a democratic new deal.” Loewenstein filed his written report on April 23, 1946, the same day the New York Times published an article under the title, “Munich University: Hotbed of Nazism”.Footnote ²⁰⁵ The Times reported that even in the face of the occupation, “Munich University still is a center of German nationalism and militarism.” The piece also alleged that the acting dean of the law school was impeding the faculty appointment of Jews and other persons persecuted by the Nazis. Both in tone and chief revelations, the story bore an uncanny resemblance to Loewenstein's memorandum to Fahy.

Predictably enough, the Times' report greatly embarrassed General Clay and the Directors of the two AMG departments—John Taylor at Internal Affairs, Fahy at Legal Division—who had signed off on the reopening of Munich University.Footnote ²⁰⁶ In the wake of the story, there was an investigation concerning its origins and veracity. On the first score, it was widely believed at AMG that Karl Loewenstein had been the story's main (anonymous) source. This Loewenstein vehemently denied, both to his boss, and more credibly, in an entry in his private diary.Footnote ²⁰⁷ Unlike his bosses, however, he did not regret that the story had been published. To begin with, the story led to the dismissal of Mueller–Erzbach.Footnote ²⁰⁸ More importantly, Fahy soon ordered Loewenstein to get to work on a general initiative on the reform of legal education in the American zone, and to keep his bosses “constantly advised of what is being done.”Footnote ²⁰⁹

In carrying out this order Loewenstein faced the usual obstacles. There was no preliminary plan for any aspect of academic legal education. Only one other legal officer was assigned to share the workload. Making matters worse, nothing could actually be done without the assent of Internal Affairs, that is, without the approval of American officials who knew nothing of law or legal education. This was one very good reason, the near nervous collapse of Loewenstein being another, why so little was achieved in the area of German university education. As Loewenstein later summarized,Footnote ²¹⁰ AMG continued to tolerate the operation of law schools in which ex-Nazi military officers were instructed by ex-Nazi professors in a Nazi-inspired curriculum. In his grim estimation, the bureaucratic squabbling between Legal Division and Internal Affairs had “resulted in the triumphant comeback of practically all the Nazis who were ousted in the early period of the occupation.”Footnote ²¹¹

When Legal Division's momentary enthusiasm for the reform of legal education fizzled out in late spring 1946, Loewenstein was, by his own account, completely at odds with most of his bosses and colleagues and “approaching the point of mental collapse.”Footnote ²¹² Although his passion for the work had not ebbed (“my fire is still burning fiercely”Footnote ²¹³), he had lost respect for the Division as “rational agency” of policy formation and implementation.Footnote ²¹⁴ Fahy's decision to leave for the State Department had briefly buoyed Loewenstein's spirits; but his initial optimism about a change in leadership was soon dissipated. Madden was no innovator. More to the point, it was now inescapable that AMG was firmly committed to German restoration, not to its reform. Before they had been properly crafted and honed, the instruments of transformative occupation were being set aside.

Even in the final weeks of his contract, exhausted and demoralized, Loewenstein continued to work tirelessly on the development of supervisory mechanisms for the German courts and legislation (“If I succeed in getting these two things across…I will not have come over in vain.”Footnote ²¹⁵) but with no expectation that his superiors would act on his recommendations. On the contrary, in every field of German legal activity—the courts, civil service, the legal academy—the indications were that “all the Nazis with the exception of a few socially unacceptable gangsters will all be in office again,”Footnote ²¹⁶ and in the absence of any meaningful oversight by the American authorities. The premature retreat on de-Nazification had made it possible for the Germans, quietly but determinedly, to regain control of their institutions. Only one year after V-E Day, Loewenstein glumly observed, the Nazis were “well-organizing themselves for the moment when we withdraw.”Footnote ²¹⁷

But for all the conflict, alienation, and even humiliation he experienced in his first ten months at Legal Division–Berlin, in June 1946 Loewenstein still was entertaining (fantasizing about is perhaps more apt) the idea of renewing his contract. Madden had now returned to the United States. His replacement, Alvin Rockwell, although himself another former New Deal (National Labor Relations Board) lawyer with no previous experience in German affairs, was more to Loewenstein's liking. Rockwell seemed better informed than his predecessors and (seemingly) more willing to defer to specialized expertise in policy making.Footnote ²¹⁸ In an hour-long meeting in late June 1946, Loewenstein briefed Rockwell on what he saw as the chronic failings of the Division, most particularly that the “administration of justice branch [in charge of the reform and supervision of German courts] is not in working order, and never has been.”Footnote ²¹⁹ He also warned that Legal Division had not done enough to watch, coordinate, or superintend the activities of the German Länderrat. As Loewenstein diarized the meeting, Rockwell suggested that Loewenstein return to the Division for an additional six-month term after a brief furlough in the United States. Loewenstein offered to come back if reassigned (from the German courts group) to oversee the legal reform program of the Länderrat. Nothing came of this conversation. Loewenstein returned to the United States in late August. His brief career in German legal reconstruction was over.Footnote ²²⁰

IV. The Alchemy of Occupation

For the executive officials of Legal Division–Berlin, Karl Loewenstein was the man who knew too much. A renowned scholar of modern European law, history, and politics, Loewenstein had returned to Germany to participate in a grand experiment in directed legal change. Uniquely among senior staff in his department, he brought not only deep and relevant learning to his assignment, but also the linguistic and analytical tools needed to enrich his perspective while “in country.” But Legal Division was an inhospitable place for an opinionated German-trained thinker.Footnote ²²¹ Indeed, it was a defining irony of the American legal mission in Germany that Loewenstein's genuine expertise quickly proved an impediment to his successful integration and deployment. Although the discord had a personal dimension—Loewenstein undoubtedly was an arrogant and often truculent man—mainly it was the result of his unquiet dissent from the drift of American reform policy in Germany. By nature and training Loewenstein was an intellectual idealist who had come to Berlin (eagerly) to help forge a moment of radical discontinuity in the legal and political history of his native country. By their natures and training, conversely, the executive officials of Legal Division were managerial pragmatists who had come to Germany (reluctantly) to provide legal and operational support to the American mission to a foreign country. By their reckoning, deep learning and rigid convictions were among the least valuable assets of an effective occupation bureaucracy.

Loewenstein arrived in Berlin with many—arguably, too many—ideas about Germany and its reconstruction; ideas which, on renewed contact with German jurists, he felt no need to amend. To his mind, the success of legal democratization hinged on the willingness of American leaders squarely to confront some inconvenient historical facts about German legal professionals.Footnote ²²² The first was that Germany's reactionary judges and legal bureaucrats were deeply implicated in the decline and fall of the Weimar republic. In the Hitler era, too, most German jurists had been amenable to the Nazi legal program (including the purge of Jewish jurists) and many had contributed significantly to the Nazi terror state. The second was the remarkable solidarity of German jurists in their collective denial even of partial responsibility for the legalized crimes of the Hitler regime.Footnote ²²³ For this reason alone, Loewenstein contended, the strongest imperative of AMG was to sustain a tough-minded purge of Nazi legal civil servants and judges.Footnote ²²⁴ On this point the Americans could make no mistake. The imprint of Nazis and Nazism on Germany's legal system was pervasive and profound. Even in the face of catastrophic defeat and foreign occupation, the Germans remained “mentally sick” and unready for responsible self-governance. The only safe way forward was by recourse to a protracted and unwaveringly “militant” program of de-Nazification.

When Loewenstein took up his work in August 1945, these propositions were the uncontroversial bedrock of American policy. But, as the leaders of AMG became more acutely aware of the enormous scale, expense, and complexity of the American mission in Germany, that bedrock began to shift. By the late autumn of 1945, General Clay harbored grave doubts about both the practicality and the political wisdom of a comprehensive program of de-Nazification in the American zone. Before the end of the year, Clay decided that AMG had no feasible option but to delegate de-Nazification to “reliable” (i.e. non-Nazi) Germans on the optimistic assumption that such men would be plentiful, discerning, and courageous enough to remove tens of thousands of formerly important fellow citizens from positions of authority and influence.Footnote ²²⁵ On this reasoning, the disagreeable facts about Nazism were subordinated to more pertinent facts about American power and its limits. Before any transformative project in Germany could be devised and implemented, the idea gained currency that the overriding goal of the American occupation to was to reconstruct the western zones (as Loewenstein put it) as a “sort of ramrod or buffer against the East.”Footnote ²²⁶ In the formation of key policies, then, historical acumen had been obliged to yield to unhistorical hopefulness, skeptical expertise to political expedience.

We have seen that as the political ground began to shift under Legal Division, Loewenstein remained steadfast. From his perspective, the premature retreat from a stringent (and American-controlled) program of de-Nazification was an “unmitigated defeat” for AMG in Germany, its “gravest mistake.”Footnote ²²⁷ In the vitally important field of law reform particularly, AMG had surrendered the field before fully taking up the fight. Although the most blatantly illiberal elements of the south German legal system had been removed, most of the hardest work remained to be done. If it was to be done at all, it would be done by Germans. “By the middle of 1946,” Loewenstein later observed, “practically the entire administration of justice in the technical sense of the term was turned over to the Germans and Military Government maintained only a marginal supervision of legal matters.”Footnote ²²⁸ All but the most notorious Nazi jurists in the American zone soon would be restored to former positions in the judiciary, legal education, and the civil service,Footnote ²²⁹ the majority of them “unregenerate” in their reactionary politics.Footnote ²³⁰ When back in office, Loewenstein confidently predicted, many erstwhile Nazi jurists would move, quietly but determinedly, to undermine legal democratization.Footnote ²³¹ The Americans had made no provision to check them. In effect, only six months after the inception of Legal Division, its definitive law reform projects already had been reduced to a bureaucratic alchemy, methodical and significant in appearance, improvised and spurious in reality. Having devolved control to Germans, the Division no longer had any authentic capacity to reconstitute the metals of Germany's juristic life.

It was Loewenstein's undoing at Legal Division that he saw no room for pragmatic compromise on de-Nazification and was harshly, sometimes unfairly, scornful of the men above him who did. In Loewenstein's estimation, the first two directors of Legal Division—Charles Fahy and Warren Madden—personified the stark deficiencies of the American mission in Germany. Although intelligent and politically adroit American jurists,Footnote ²³² neither had come to Europe with any genuine knowledge or conviction about German law, language, or history.Footnote ²³³ Nor did they bring a relevant theoretical training or sensibility. When pressed to decide key issues of policy, their reflex was to draw exclusively from American frames of reference. “The basic defect,” Loewenstein recorded in his diary in January 1946, “is not only the ignorance of the people here concerning German affairs, but the lofty superciliousness in which they apply the principles of a pioneer country to an old legal civilization.”Footnote ²³⁴ Neither Fahy nor Madden seemed able to grasp the systemic differences between German and American jurisprudence, or the still more consequential differences in the elemental political spirit—the gestalt—of German and American jurists.Footnote ²³⁵ The authoritarian “otherness” of the German legal system was disregarded on the facile premise that, “What is good for the American people must be good for the German people. A law or institution which a reconstructor has not used in his home environment was basically distrusted, and an institution which had proved its value at home was basically considered valuable for the Germans.”Footnote ²³⁶ The incapacity (or unwillingness) of American officials to recognize German difference, Loewenstein contended, “runs through the entire US occupation policy and practice.” For the transformative aims of the occupation, this was a costly habit of thought. It impaired AMG in its ability to evaluate and govern former Nazis with an appropriately illiberal forcefulness.Footnote ²³⁷ At the moment of German surrender, in Loewenstein's view, the American leadership class lacked both the intellectual flexibility and the political will needed for the quasi-imperial suzerainty over foreign lands and peoples, still less German lands and peoples.

For Loewenstein, the upshot was plain. Little more than a year after Auschwitz had been overrun, Germans once again were being made “the judges of their own past.”Footnote ²³⁸ In recasting postwar German legal professionals as mainly good and well-meaning men (who themselves had been victimized by Hitler and Nazism), it had become possible for the American leaders to discount that the same men had been party to mass murder. Having watched his leaders retreat on de-Nazification and then hesitate even to superintend former Nazi lawyers, judges, and law professors, Loewenstein was moved to wonder, “[W]hy, then, have we fought this war?”Footnote ²³⁹

The answer to this rhetorical (and, for Loewenstein, unusually emotive) question, provides a useful window to the salient limitations of Loewenstein's critical assessment of AMG and its Legal Division. The short answer was that the Allies had fought to destroy the Nazi movement and war machine, and had done so. But in his passionate commitment to the war's transformative aims, Loewenstein discounted these fundamental achievements, just as he downplayed the enormous challenge faced by AMG in Germany after the war's end. In his voluminous writings on the occupation, Loewenstein only occasionally acknowledged that the postwar mission in Germany was one of “terrific” complexity and difficulty,Footnote ²⁴⁰ and that it was not a simple matter, not even for the richest country in the world, to remake the legal and political system of a great nation–state.Footnote ²⁴¹ A gifted thinker about politics, Loewenstein was oddly indifferent to the politics impinging on the decision-makers of AMG. Indeed, underlying Loewenstein's censure was the rather innocent assumption that the transformative mission in Germany might have been of radically different character and effect. But for the lack of more informed and deliberate planning, of more expert and dedicated leadership, of more militant and exacting policy, Loewenstein implied, the Americans might have induced the more rapid and deep-seated democratization of their Germans.Footnote ²⁴² It must weigh against Loewenstein's stature as a political thinker that he never carefully evaluated this premise. Intellectuals, in the end, are better engineers of abstractions than of the unruly disorder of real politics.

Postscript

In the late 1940s, after two return trips to Germany as a lecturer (in the American “Reorientation Program”Footnote ²⁴³), Loewenstein wrote a series of short pieces on the American mission in Germany. These meditations on the “balance sheet of the occupation”Footnote ²⁴⁴ display a detectable inner tension, even self-contradiction, not present in his earlier work. On one hand, Loewenstein continued to assert (as late as 1950) that the authoritarian predisposition of the Germans had changed very little during four years of Allied military occupation.Footnote ²⁴⁵ In his opinion, even the West Germans still were merely “going through the motions of democracy.”Footnote ²⁴⁶ He also clung to his belief that if American leadership in Germany had risen above its habitual “intellectual nationalism,”Footnote ²⁴⁷ democracy might have taken tighter hold of the German psyche. On the other hand, Loewenstein finally began to distance himself, if only tentatively, from the idea of military occupation as an effective instrument of political transformation. At the annual meeting of the American Political Science Association in December, 1949, Lowenstein told the assembly that sights had been set “too high” in Germany.Footnote ²⁴⁸ He now contended that it was “impossible, really, to reconvert a nation to democracy…for no nation can be forced to change from the outside, particularly the Germans.” But, having made this point, he quickly reverted to a more familiar theme. For the foreseeable future, the western Allies would need to remain vigilant of any sign of “extreme nationalistic reaction” in the German body politic, and, if necessary, act decisively in its suppression.Footnote ²⁴⁹ Even now, Loewenstein maintained, it was not too late for the militant supervision and control of Germany's dark spirits.Footnote ²⁵⁰