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The Alchemy of Occupation: Karl Loewenstein and the Legal Reconstruction of Nazi Germany, 1945–1946

Abstract

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.” 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.” This article sets forth the theoretical and observational bases of Loewenstein's assessment and evaluates its cogency.

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1. Karl Loewenstein, Occupation Diary (OD), August 22, 1945, Loewenstein Papers, Frost Library, Amherst College (FLAC), box 40. Loewenstein's diary entries were typed in haste, and are rife with typographical and spelling errors. In lieu of repeated use of the pedantic Latin term, “sic,” all unambiguous errors in quoted material have been corrected.

2. Ibid., January 8, 1946.

3. For an overview of the evolution of the American and Allied control elements in occupied Germany, see generally, Holborn Hajo, American Military Government: its Organization and Policies (Washington, D.C.: Infantry Journal Press, 1947), 5373.

4. Potsdam Protocol, II, A., 1. For the complete text, see United States Department of State, Foreign Relations of the United States: Diplomatic Papers: the Conference of Berlin (the Potsdam Conference), 1945, vol. II (Washington, D.C.: U.S. Government Printing Office, 1945), 1478–514.

5. Ibid., II, A., 3. (I)., 1502.

6. Ibid., III, A. 4., 1501.

7. Ibid., III, A. 4., 1502.

8. Loewenstein Karl, “Reconstruction of the Administration of Justice in American-Occupied Germany,” Harvard Law Review 61 (1948): 419.

9. Karl Loewenstein, Legal Reconstruction in Germany, unpublished ms. (1948), 1, Loewenstein Papers, FLAC, box 24.

10. Although there is an extensive historiography of American military government in occupied Germany, the subject of directed legal change has received comparatively little attention. The best published works focus on specific regions within the American zone. See Gaab Jeffrey S., Justice Delayed: The Restoration of Justice in Bavaria under American Occupation, 1945–1949 (New York: Peter Lang, 1999); and Szanajda Andrew, The Restoration of Justice in Hesse, 1945 – 1949 (New York: Lexington Books, 2007). The best work in German is Waibel Dieter, Von der Wohlwollenden Despotie zur Herrschaft des Rechts: Entwicklungsstufen der Amerikanischen Besatzung Deutschlunds 1944–1949 (Tubingen: Mohr, 1996). Valuable as they are in their own right, these works are not based upon complete excavations of the source materials generated by Loewenstein or Legal Division–Berlin. For useful critical assessment of Waibel's book, see Ledford Kenneth F., “Book Review,” The American Journal of Comparative Law 46 (1998): 225–29.

11. One exception is Joseph Bendersky's essay on American policy toward the German political theorist, Carl Schmitt. In this piece, the author draws extensively on the Loewenstein Papers (FLAC) and makes reference to Loewenstein's mounting “frustration” with American policy in postwar Germany. See Bendersky, “Carl Schmitt's Path to Nuremberg: A Sixty-Year Reassessment,” Telos 139 (Summer, 2007): 634. For a thorough treatment of Loewenstein's papers in relation to his work as a political theorist, see Lang Markus, Transatlantischer Denker der Politik (Stuttgart: Steiner Press, 2007).

12. For another important contemporary diary, one kept by an American political scientist assigned to advise AMG on governmental affairs, see Pollock James K., Besatzung und Staatsaufbau nach 1945: Occupation Diary and Private Correspondence 1945-1948 (Munchen: Oldenbourg Verlag, 1994).

13. Here I refer principally to two sets of documents: the extensive archive of Legal Division–Berlin (RG 260) at the National Archives and Record Administration (NARA), College Park, Maryland, and the Charles H. Fahy Papers at the Franklin Delano Roosevelt (FDR) Presidential Library, Hyde Park, New York.

14. In the “truths” he told about Germany, Loewenstein can be located among the “Other Germany” thinkers on postwar Germany. This school of thought, prominent in academic and German émigré circles, emphasized the need for the deliberate and painstaking de-Nazification and democratization of Germany during an indefinite period of military occupation; see Boehling Rebecca, A Question of Priorities: Democratic Reforms and Economic Recovery in Postwar Germany (New York: Berghahn Books, 1996), 20.

15. For Loewenstein's memoir of his relationship with Weber, see Loewenstein, Max Weber's Political Ideas (Springfield: University of Massachusetts Press, 1966), 91104.

16. As Loewenstein later wrote of his scholarship, he eschewed utopian visions for “the terra firma of established facts, historical experience, human nature in politics.” Political Reconstruction (New York: Macmillan Press, 1946), vii.

17. Loewenstein, Max Weber's Political Ideas, 100–101.

18. For further bibliography, see Commager Henry Steele, Doeker Gunther, Frankel Ernst, Hermes Ferdinand, Havard William C., Maunz Theodor, eds., Festschrift fur Karl Loewenstein (Tubingen: Mohr, 1971), 509–11.

19. Lang, Transatlantischer Denker, 67–69. In his approbation of the liberal and especially the democratic elements of the British constitution, Loewenstein stood apart even from the most liberal of Prussian constitutional theorists. See generally, Hahn Erich, “Rudolf Gneist and the Prussian Reichsstaat: 1862-78,” The Journal of Modern History 49 (4) (1977): D1361–D1381.

20. In the first part of 1933, Loewenstein began to apply for academic positions in the United States and England. His first choice was to work with (his friend) Harold Laski at the London School of Economics. When no offer was forthcoming from the LSE, he focused on the great law schools of the eastern United States. See Loewenstein to Mendelssohn–Bartholdy, May 16, 1933, Ernst Stiefel Papers, Center for Jewish History, reel 5.

21. According to one of his former bosses at Justice, Loewenstein recounted how he had been “run out of Munich promptly in 1933, in large part because he had always opposed [the Nazis] rather forthrightly.” Knapp to Fahy, July 5, 1945, Charles H. Fahy Papers, FDR Presidential Library, box 66.

22. A permanent position at Yale proved elusive for a number of reasons: the Depression-era budgetary crisis, general indifference to Loewenstein's scholarly work and field, his German–Jewish ancestry, and his difficult personality most prominently among them. See Lang Markus, “Juristen Unerwunscht?: Karl Loewenstein und die (nicht-) Aufnahme Deutscher Juristen in der Amerikanischen Rechtswissenschaft nach 1933,” in von Volker Gerhrdt Hrsg., Mehring Reinhard, Ottmann Henning, Thompson Martyn P., Zehnpfennig Barbara, eds., Politisches Denken-Jahrbuch 2003 (Steiner: Stuttgart, 2004): 68. Loewenstein was not alone among German jurists in his struggle to establish a scholarly career in America. See generally, Graham Kyle, “The Refugee Jurist and American Law Schools, 1933-1941,” American Journal of Comparative Law 50 (2002): 777818.

23. Loewenstein professed to love Amherst, and especially its liberal traditions of academic freedom and tolerance. And yet for his entire career he yearned to work at a more established university, preferably at a law school with a renowned postgraduate program. For one of the many letters he wrote in pursuit of this ambition, see Loewenstein to McDougal, November 16, 1947, Loewenstein Papers, FLAC, box 29.

24. For an interesting autobiographical discussion of German emigration to the United States in the 1930s, and the decision of many to remain there after 1945, see Neumann Franz L., “The Social Sciences,” in The Cultural Migration: The European Scholar in America (New York: Barnes & Co., 1953), 1719. See also, “Roundtable Discussion,” in Kielmansegg, Mewes and Glaser–Schmidt, eds., Hannah Arendt and Leo Strauss: German Emigres and American Political Thought after World War II (Cambridge, Mass: Cambridge University Press, 1995), 171–82; and also, Lehmann Hartmut and Sheehan James J., An Interrupted Past: German-Speaking Historians in the United States after 1933 (Cambridge: Cambridge University Press, 1991).

25. Loewenstein published his first important article in English (in the American Political Science Review) in 1935. By 1950 he had published additional articles, inter alia, in the Chicago, Columbia, and Harvard law reviews. For a complete bibliography, see Commager et al., Festschrift fur Karl Loewenstein, 509–11.

26. Loewenstein, Political Reconstruction.

27. This section outlines what Loewenstein thought about law and politics generally and about Germany specifically. It does not assess its originality, coherence, or intellectual rigor. For critical assessments of Loewenstein's political science, see generally, Commager et al, Festschrift fur Karl Loewenstein; Lang, Transatlantischer Denker. For general background to Loewenstein's thought, see Stirk Peter M.R., Twentieth-Century German Political Thought (Edinburgh: Edinburgh University Press, 2006).

28. For a summary of Loewenstein's liberal convictions, see Loewenstein, “An International Bill of Human Rights,” Current History 9 (1950): 273.

29. Ibid. In 1942, Loewenstein accepted the invitation of the American Law Institute to work with “liberal elements” from eight nations to devise and draft an International Bill of Human Rights.

30. Loewenstein Karl, Brazil under Vargas (New York: Macmillan Press, 1942), 4.

31. Loewenstein Karl, “Freedom is Unsafe without Self-Government,” Annals of the American Academy of Political and Social Science 243 (1946): 47.

32. Loewenstein, Political Reconstruction, 131.

33. Loewenstein KarlMilitant Democracy and Fundamental Rights I,” American Political Science Review 31 (June, 1937): 423.

34. Ibid., 423.

35. Ibid., 424.

36. Ibid., 430.

37. Ibid., 431.

38. Ibid., 432.

39. Ibid., 427.

40. Loewenstein's stern criticisms of the Weimar-era judiciary were remarkably similar to those of Otto Kirchheimer and Franz L. Neumann, the leading German émigré intellectuals of the Left. For Kirchheimer's and Neumann's main writings on German law and politics in the Weimar and Nazi eras, see Scheuerman William E., ed., The Rule of Law under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer (Berkeley: University of California Press, 1996). For further discussion of the intellectual affinities and cleavages among German émigrés before and during the Second World War, see Hughes H. Stuart, “Franz Neumann: between Marxism and Liberal Democracy,” in Fleming Donald and Bailyn Bernard, eds., The Intellectual Migration: Europe and America, 1930–1960 (Cambridge, Mass.: Harvard University Press, 1969), 446–62; and Katz Barry M., “The Criticism of Arms: The Frankfurt School Goes to War,” The Journal of Modern History 59 (3) (1987), 439–78.

41. Loewenstein's view on the Nazification of German law is summarized in his piece, “National Socialist Law and Administration of Justice,” Encyclopaedia Britannica XVI (1944).

42. For more recent treatments of the “coordination” and the German legal system in the Nazi period, see Jarausch Konrad H., The Unfree Professions: German Teachers, Lawyers, and Engineers, 1900–1950 (New York: Oxford University Press, 1990), 116–20; Muller Ingo, Hitler's Justice: The Courts in the Third Reich (Cambridge: Harvard University Press, 1991), 3645; Stolleis Michael, Law and the Swastika: Studies on Legal History in Nazi Germany (Chicago: The University of Chicago Press, 1998), 1322; and Ledford Kenneth F., “German Lawyers and the State in the Weimar Republic,” Law and History Review 12 (1995): 317–19.

43. Loewenstein Karl, “Law in the Third ReichYale Law Journal 45 (1937): 781.

44. The Weimar constitution was neutered by the “enabling law” of 1934, but never thereafter formally abolished. The Nazi constitution was therefore de facto. Ibid., 802.

45. The Führer's legal primacy was first established negatively by the swift destruction of the main features of liberal constitutionalism. It was then established positively by the institutionalization of the unitary state under the monopoly policy and decision-making power of the Fuhrer and his Party. Ibid., 788.

46. For the Nazification of the German bar, see generally, Kenneth F. Ledford, “Lawyers and the Limits of Liberalism: the German Bar and the Weimar Republic,” in Terence C. Halliday and Lucien Karpik, eds., Lawyers and the Rise of Western Political Liberalism (Oxford: Clarendon Press, 1997), 229–64.

47. Ibid., 802.

48. Loewenstein Karl, Hitler's Germany: The Nazi Background to War (New York: Macmillan Press, 1940), viiviii.

49. More specifically, Loewenstein was sent to Montevideo as legal advisor to the Justice Department's “Emergency Advisory Committee for Political Defense of the Inter-American Treaty.” The primary objective of the unit was to identify and dispel fascist propaganda in Latin America.

50. This was the second occasion that an arm of the American federal government had asked Loewenstein for general guidance on German affairs and social psychology. In the summer of 1942, the military intelligence section of the War Department asked Loewenstein for advice on how to diminish German morale while preparing the German people to accept an eventual Allied victory. Loewenstein thought that the destruction of Nazism would create a “tremendous spiritual gap” that would not easily be filled by “democratic slogans.” Loewenstein thought that it would be imperative for the occupiers to encourage the “revival of religious desires” among Germans while they orchestrated a selective but merciless program of “retributive justice” against the Nazi elite. “Memorandum on the Methods for Lowering the Morale of the German People…,” July 30, 1942, Loewenstein Papers, FLAC, box 29.

51. Soon after Loewenstein wrote this memorandum, American planning for the legal reconstruction of Germany was shifted from the Justice Department to the Civil Affairs Division of the War Department and then, in May 1944, to the Legal Branch of the Supreme Headquarters of the Allied Expeditionary Force (SHAEF) in London.

52. Karl Loewenstein to W.C. Smith, “De-contamination of German Law after the Fall of the Nazi System,” April 30, 1943, Loewenstein Papers, FLAC, box 29.

53. Loewenstein, Political Reconstruction.

54. Ibid., 337.

55. Ibid., 337.

56. Ibid., 348–49.

57. In his cover letter, Loewenstein emphasized that he “probably had more knowledge of German legal matters than most American trained lawyers and twelve years in this country have enabled me to learn the spirit and system of law.” Interestingly, Loewenstein did not mention that he was then finishing a book on political reconstruction. Loewenstein to Fahy, June 27, 1946, Fahy Papers, FDR Presidential Library, box 66.

58. His boss, Laurence Knapp, described Loewenstein as a “tremendously industrious” but “opinionated” and often meddlesome man, who would require “close supervision” in Germany. Knapp thought that Loewenstein would be an invaluable researcher but that he “lacked judgment on broad and important international problems.” Knapp made no mention of Loewenstein's scholarship or wartime memoranda. Knapp to Fahy, July 5, 1945, Fahy Papers, FDR Presidential Library, box 66.

59. There is evidence (in the form of a curriculum vitae complete with an Office of Strategic Services telephone number) that Fahy's first choice for the post as expert advisor to Legal Division had been the German émigré lawyer and political scientist, Otto Kirchheimer. Kirchheimer, however, remained with the OSS. See Fahy Papers, FDR Presidential Library, box 66.

60. Loewenstein's body of academic writing is given relatively little attention in a leading English language book on German political thinkers in the mid-twentieth century. See Stirk, German Political Thought, 109–10. For an assessment of Loewenstein's intellectual legacy, see Lang, Transatlantischer Denker, 299–315. See also, Devin O. Pendas. Review of Lang, Transatlantischer Denker. H-German, H-Net Reviews. April, 2010.

61. For analysis of the planning, development, and operation of American military government in occupied Germany after the Second World War, see Holborn, American Military Government, 7-10; Harold Zink, The United States in Germany (New York: Van Nostrand, 1957), 26–42; Gimbel John, The American Occupation of Germany: Politics and the Military (Palo Alto: Stanford University Press, 1968); Peterson Edward N., The American Occupation of Germany: Retreat to Victory (Detroit: Wayne State University Press, 1977), 54113; and Boehling, A Question of Priorities, 41–71.

62. Although their assimilated rank theoretically entitled AMG's civilian employees to equal treatment with commissioned military officers, the reality, as Loewenstein soon discovered, was different. Regular military officers got the lion's share of all privileges and perquisites. In a host of ways, Loewenstein complained, civilians were “tangibly discriminated against by the very army which clamors for their services.” Loewenstein, undated draft letter to the New York Times. Loewenstein Papers, FLAC, box 14. For a sardonic contemporary memoir of the misadventures of American military occupiers in Germany, a work greatly admired by Loewenstein, see Knappen Marshall, And Call it Peace (Chicago: University of Chicago Press, 1947).

63. The bulk of private papers relating to Fahy's work in Germany can be found in the Charles H. Fahy Papers of the FDR Presidential Library. Some fragmentary material from this period of his career also is available as part of the Papers of Charles Fahy, Manuscript Division, Library of Congress.

64. Roster of USGCC, Legal Division, August 22, 1945, NARA, RG 260, Legal Division (LD)-Legal Advice Branch (LAB), box 64.

65. Fahy Charles, “Legal Problems of the German Occupation,” Michigan Law Review 47 (1948–1949): 16; and Fahy Charles, “The Lawyer in Military Government of Germany,” Department of State Bulletin 15, November 10, 1946, 852–59.

66. Loewenstein was one, an expatriate Jewish Berliner named Wilhelm J. Dichmann (his name later anglicized as “William Dickman”) another. In the early 1930s Max Rheinstein had been a Berlin lawyer and university lecturer in private law. The German–Jewish lawyer, Fritz E. Oppenheimer, the chief legal officer at USFET, had also been a Berlin lawyer until 1936. There were, however, at least two Austrian lawyers on Fahy's staff.

67. William Dickman was finally forced from his Berlin law practice in 1938. See Dickman obit, Washington Post, November 1, 1987.

68. Loewenstein, OD, November 26, 1945.

69. Fahy, “Legal Problems,” 17.

70. In some part this was due to President Roosevelt's firm belief that detailed planning for the occupation should not take place until it was certain that the war had been won. In cooperation with the British, some plans had been made for securing legal records and institutions in the immediate aftermath of German defeat, but almost no work had been done on the longer term. As FDR put it to Cordell Hull in October, 1944, “Speed on these matters is not essential at this moment. I dislike making detailed plans for countries we do not yet occupy.” As quoted in Boehling, A Question of Priorities, 28.

71. The relative imprecision of JCS 1067 gave executive officers considerable latitude for improvisation. See generally, Gimbel, American Occupation, 1–23.

72. In the lead up to D-Day, some American and British legal officers attached to the Legal Branch of SHAEF in London were asked to begin work on the de-Nazification of German law during the first phase of Allied military occupation. The material generated by this group [and its Special Legal Unit (SLU)], was controlled by its senior officer, the German-born lawyer and now American army officer, Fritz Oppenheimer. Oppenheimer oversaw the creation of numerous memoranda and reports on the prospective abrogation and revision of Nazi law, first at SHAEF and then, after German surrender, at USFET. The writer has found only piecemeal remnants of these documents among the papers of Fahy's Legal Division. For an overview of the history of American legal reform work relating to Germany, see “Historical Notes of Colonel John M. Raymond,” March 23, 1949, RG 260, Legal Division, Administration of Justice Branch (LD-AJB), box 11.

73. Fahy was born in Rome, Georgia, in 1892, to a Catholic father (a merchant) and Jewish mother. Educated at Notre Dame and Georgetown, he was called to the bar in Washington in 1914, and won a Navy Cross in action over France in 1917.

74. But Fahy's liberalism was flexible and pragmatic. As a wartime solicitor general, in fact, it had proved flexible enough that he could advocate strenuously, in at least one instance, unethically, in favor of the prerogatives of the state over basic civil liberties. The archive concerning the habeas corpus litigation initiated by a Japanese–American detainee, Fred Korematsu, contains compelling evidence that Fahy deliberately suppressed evidence that might have led to Korematsu's exoneration. For a discussion of this incident, see Irons Peter, Justice at War (New York: Oxford University Press, 1983), 280–92.

75. Cohn Sherman L., “Charles Fahy,” Georgetown Law Journal 68 (1979–1980): vi.

76. In the spring of 1945, Fahy had acted as a special legal advisor to the American delegation to the San Francisco Conference.

77. Philip Elman, as quoted in Silber Norman I, ed., With All Deliberate Speed: The Life of Philip Elman: An Oral History Memoir (Ann Arbor: University of Michigan Press, 2004), 147. Fahy's ultimate ambition was to secure an appointment to the Supreme Court. It never happened.

78. The most cogent evidence in support of this view is that Fahy accepted a job at the State Department (in April 1946) only nine months after he had begun work in Germany. By this time, Fahy had developed a close personal and professional relationship with Clay, and the general pressed him to remain in Germany for at least a full year. Clay relented when Fahy told the general that it was his “lifetime ambition” to work as legal advisor to the State Department. Smith Jean Edward, ed., The Papers of General Lucius D. Clay: Germany 1945-1949, vol. I (Bloomington: Indiana University Press, 1974), 171.

79. Ibid. Among other former National Labor Relations Board lawyers, Fahy hired (as an associate director) Judge J. Warren Madden (the former Chairman of the NLRB), Alvin Rockwell, and Mortimer Kollender. Fahy also hired (as second associate director) the Californian international business lawyer and sometimes government consultant, Herman Phleger. Phleger does not appear to have had any dealings with Loewenstein's section. He left Legal Division–Berlin in December 1945. For description of Fahy's work at the NLRB, see Irons Peter, New Deal Lawyers (Princeton: Princeton University Press, 1982), 234–48.

80. The subordination of experts to neophytes was the norm in the American occupation bureaucracy in Germany. See Boehling, A Question of Priorities, 45.

81. Loewenstein was not alone in this assessment. The chief of the British legal mission in Germany (after his first meeting with his American counterpart) diarized that Fahy seemed “very ignorant” of German affairs. Furthermore, Fahy and his lieutenants seemed to be content to exist “in a vacuum of their own without consulting in any way the well-informed people…they have.” See Wilberforce Richard, Reflections on my Life (Durham: Roundtuit Publishing, 2003), Diary entry: August, 21, 1945, Appendix 3, 164.

82. Loewenstein, Legal Reconstruction in Germany, 62.

83. For the development and implementation of American de-Nazification policy, see generally, Herz John H., “The Fiasco of Denazification in Germany,” Political Science Quarterly LXII (1948): 569; Niethammer Lutz, Entnazifizierung in Bayern (Frankfurt: Fischer Press, 1972), 244–50; Vollnhals Clemens, ed., Entnazifizierung: Politische Sauberung und Rehabilitierung in den vier Besatzungszonon (Munich: Deutscher Taschenbuch Verlag, 1991); Gimbel, American Occupation, 101–10; Peterson, Retreat to Victory, 138–66.

84. Loewenstein, OD, August 29, 1945.

85. See generally, Ledford, “German Lawyers and the State in the Weimar Republic,” 317–49; Jarausch, The Unfree Professions, 115–20.

86. See generally, Muller, Hitler's Justice, 6–26; and Stolleis, Law under the Swastika, 14–21.

87. Loewenstein, OD, September 14, 1945.

88. In the first months of the occupation, the American de-Nazification directive was enforced with particular harshness in Bremen. See “Military Government of Germany—Legal and Judicial Affairs,” Monthly Report of Governor US Zone, October, 1945, 2.

89. Loewenstein, OD, August 31, 1945. For an excellent study of how German jurists rationalized their work for the Third Reich, see Nathans Eli, “Legal Order as Motive and Mask: Franz Schlegelberger and the Nazi Administration of Justice,” Law and History Review 18 (2000): 281304.

90. Loewenstein, OD, August 22, 1945.

91. Loewenstein, Political Reconstruction, 337.

92. Loewenstein to Litchfield, June 5, 1946, Loewenstein Papers, FLAC, box 40.

93. Loewenstein, Political Reconstruction, 337.

94. Loewenstein to Fahy, September 14, 1945, NARA, RG 260, LD-AJB, box 52.

95. For a general account of the penetration of the Nazi party in German civil society after 1933, see Evans Richard J., The Third Reich in Power 1933-1939 (New York: Penguin Press, 2005), 14. By 1945, some 8.5 million Germans were members of the Nazi party, 90 percent having joined after 1933. See also, Kater Michael H., The Nazi Party: A Social Profile of its Members and Leaders 1933–1945 (Cambridge, Mass.: Harvard University Press, 1983).

96. According to the figures gathered by the Americans themselves, “Approximately 80 percent of all the judges at the time of Germany's surrender have disqualified themselves by their past actions and party memberships, thereby falling into removal categories.” See “Military Government of Germany—Legal and Judicial Affairs,” Monthly Report of Governor US Zone, October, 1945, 1. In some regions of the American zone, the rate of Nazi party membership among judges and prosecutors (in 1945) may have exceeded 90 per cent. See Szanajda, Restoration of Justice, 28.

97. Loewenstein estimated that by 1945 about 60 percent of the bar in Bremen had joined the Nazi party. The rate was similar in Berlin. Loewenstein to Fahy, September 14, 1945, NARA, RG 260, LD-AJB, box 52. See Gaab, Justice Delayed, 73.

98. Boehling, A Question of Priorities, 52–60.

99. Loewenstein, OD, August 23, 1945.

100. Loewenstein, “Reconstruction of Justice,” 447. A judgment confirmed by subsequent historians. See generally, Gimbel, American Occupation, 101–10; Peterson, Retreat to Victory, 138–66.

101. Exit interview with Loewenstein, July 10, 1946, NARA, RG 260, LD, box 40.

102. Loewenstein to Fahy, September 14, 1945, Loewenstein Papers, FLAC, box 14.

103. Loewenstein, “Reconstruction of Justice,” 444.

104. Loewenstein was not alone among German émigré scholars in advocating for a “militant” program of postwar institutional de-Nazification. In helping to plan the American occupation for the OSS, Franz Neumann, John Herz, and Otto Kirchheimer had advocated a similar policy. See Katz, “Frankfurt School Goes to War,” 459–65.

105. Loewenstein to Fahy, September 14, 1945, Loewenstein Papers, FLAC, box 14.

106. The Committee consisted of six men, including Fahy and the chiefs of AMG intelligence and economic affairs, along with the senior “Political Advisor” to AMG, Robert Murphy. For background, see Gimbel, American Occupation, 101–3.

107. Peterson, Retreat to Victory, 147.

108. Ibid.

109. Oppenheimer, a decorated veteran of the German army in the First World War, practiced corporate and international law in Berlin from 1922 until he emigrated to England in 1936. After becoming a barrister in London, he emigrated to the United States in 1940, enlisting in the United States army as a private soldier in 1942. In the final months of the war in Europe, Oppenheimer was a major assigned to Eisenhower's general staff, helping to coordinate the first American efforts in taking control of the Nazi legal system. After the surrender, he was promoted to lieutenant–colonel and assigned to General Clay's staff as a general advisor of German affairs. See generally, Oppenheimer obituary, New York Times, February 6, 1968.

110. In his support of this policy, Oppenheimer was in direct and sometimes acrimonious conflict with Loewenstein. The two men clashed on the issue during their time with AMG in Germany and afterward. For an account of their policy differences on de-Nazification, see Oppenheimer, “Denazifying Germany,” New York Times, January 12, 1947.

111. See ibid; and “Minutes of the Meeting at Stuttgart of the Ministers of Justice of the South-German Länder,” December 18, 1945, Loewenstein Papers, FLAC, box 28.

112. Loewenstein to Fahy, November 30, 1945, Loewenstein Papers, FLAC, box 28.

113. As Loewenstein later wrote, “I admit that it is a fundamental right of man not to be a hero. But the fact that a person of integrity loaned his name, for selfish and opportunistic reasons, to a party which he now professes to have despised” was no basis either of respect or trust. Loewenstein, “Comment on Denazification,” Social Research 14 (1947): 367.

114. Loewenstein to Fahy, November 30, 1945, Loewenstein Papers, FLAC, box 28.

115. Loewenstein, OD, January 31, 1946.

116. Loewenstein, OD, November 30, 1945.

117. Loewenstein, OD, August 29, 1945.

118. This Loewenstein called the “glib and persuasive technique of the Germans in absolving themselves.” Loewenstein, “Comment on Denazification,” 367.

119. In key meetings with German officials in December 1945, Loewenstein alleged, Oppenheimer “was less rigorous than the Germans themselves. He seemed to protect the Germans against their own proposals.” Loewenstein, OD, December 18, 1945. “Rheinstein and Oppenheimer,” he diarized on January 31, 1946, “are leaning back to get as many ‘nominal’ Nazis [as possible] back into the fold.”

120. “Summary of discussion of denazification laws,” December 18, 1945, NARA, RG 260, LD-Legal Advice Branch (LD-LAB), box 52. For Oppenheimer's similar account of these meetings, see “Denazifying Germany”.

121. “Preliminary Report by Working Committee to Denazification Policy Board,” December 20, 1945, Fahy Papers, FDR Presidential Library, box 59.

122. Loewenstein to Fahy, January 5, 1946, Loewenstein Papers, FLAC, box 28.

123. Loewenstein, OD, January 3, 1946.

124. Having offered these “basic objections,” Loewenstein proceeded (“with resignation”) to provide a “section-by-section analysis” of the German proposal, suggesting amendments that might render it at least “serviceable.” Loewenstein (through Elman) to Fahy, January 5, 1946, Loewenstein Papers, FLAC, box 28.

125. Loewenstein, OD, January 3, 1946; Loewenstein, “Reconstruction of Justice,” 450–52.

126. “Report of the Denazification Policy Board,” January 15, 1946, Loewenstein Papers, FLAC, box 28.

127. Clay to Minister–Presidents, March 5, 1946, Fahy Papers, FDR Presidential Library, box 60.

128. In a telephone conversation with his superior at Civil Affairs Division, General Hilldring, on March 1, 1946, Clay stated that, “Actually, if you gave me 10,000 people over here, I couldn't do that job [of de-Nazification]. It's got to be done by the Germans.” Smith, ed., The Papers of General Lucius D. Clay, 172.

129. Clay was aware that in the United States news of the new de-Nazification policy would garner a “tremendous amount of abuse”. Ibid.

130. Loewenstein, OD, January 31, 1946.

131. Ibid., January 18, 1946.

132. In his first two months alone Loewenstein had also written thirty-nine memoranda on at least two dozen different topics, including agricultural, criminal, tax, real property, and family law. Loewenstein, “Record of Written Work, 15 August–18 October 1945,” Loewenstein Papers, FLAC, box 28.

133. Loewenstein to Fahy, August 21, 1945, NARA RG 260, LD-AJB, box 4. See also, Loewenstein's summary of these problems in Legal Reconstruction in Germany, 88–93, Loewenstein Papers, FLAC, box 24.

134. Loewenstein Karl, “Law and Legislative Process in Occupied Germany: I,” Yale Law Journal 57 (March, 1948): 734–35. For an overview of the problems raised by the general reform of German law, See Szanajda, Restoration of Justice, 78.

135. On August 30, 1945, the ACC's Law No. 1 (effective September 20, 1945) repealed a long list of Nazi laws “of a political or discriminatory nature upon which the Nazi regime rested.” See Official Gazette of the Control Council for Germany, 29.10.1945, no. 1, 6–8.

136. This was because of the paucity in the Division of German-literate and trained legal specialists, and the absence even of a comprehensive library of Nazi-era laws. Loewenstein to Fahy, August 21, 1945, NARA RG 260, LD-AJB, box 74.

137. By war's end Oppenheimer's SLU had produced more than a score of analytical surveys of various aspects of Nazi-era German substantive and procedural law. Some of these reports were in circulation at Legal Division–Berlin in 1945. However, Loewenstein thought that the reports were generally “inaccurate and not intelligible.” See Loewenstein, OD, November 26, 1945.

138. Loewenstein later revisited these issues in greater depth in his article, “Law and Legislative Process in Occupied Germany,” 734–39.

139. Loewenstein to Fahy, August 21, 1945, NARA, RG 260, LD-AJB, box 74.

140. For discussion of the paradoxical notion of “progress” in legal science during the Nazi regime, see Stolleis, The Law under the Swastika, 48–63. This theme is revisited by Stolleis in his essay, “Prologue: Reluctance to Glance in the Mirror. The Changing Face of German Jurisprudence after 1933 and post-1945,” in Joerges Christian and Ghaleigh Navraj Singh, eds., Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Traditions (Oxford: Hart Publishing, 2003), 118, passim.

141. Ibid.

142. But Loewenstein objected to a British proposal, made in November 1945, for the Allies to establish a committee of German lawyers to undertake a “global de-Nazification of the entire German statute book since 1933.” His reason was that a German committee would be disinclined to “ferret out” the more subtle presence of fascist, militaristic, and nationalist influences on German law. Loewenstein to Madden, November 20, 1945, NARA, RG 260, LD-AJB, box 74.

143. Loewenstein later revisited these issues in greater depth in his article, “Law and Legislative Process in Occupied Germany,” 734–39.

144. Legal Division did however have a series of meetings with a British team of lawyers about the potential coordination of law reform programs. Loewenstein, OD, September 5, 1945.

145. Loewenstein often complained that Legal Division was too reluctant to hire qualified German experts. The prevailing view at the Division was that a “Kraut is a Kraut.” OD, December 12, 1945.

146. The quadpartite “Working Party on German Law” met six times in September 1945. NARA, RG 260, ACC-DLEG, Chairman's report, October 12, 1945.

147. Loewenstein, “Law and Legislative Process,” 738–39. Whereas the British and American positions were broadly compatible, the Soviets operated on entirely illiberal assumptions about what was entailed by the “democratization” of a legal system. The French, although liberal in their basic approach, obstructed any policy that might tend to reconstitute a centralized German state. For an overview of the complicated diplomacy of the ACC, see generally, Gimbel, American Occupation, 16–18; Smith, The Papers of General Lucius D. Clay, 233–34.

148. Having achieved little of substance by the time Germany was partitioned in 1947, the projects and deliberations of the “German Law Revision Committee” of the ACC has not received scholarly attention.

149. Loewenstein, OD, December 6, 1945.

150. Ibid., December 11, 1945.

151. In Loewenstein's opinion, the “ominous feature of the case” was that the “allegedly democratic judges whom the American military government recently has appointed, are so far removed from…the new concept of administering law according to democratic justice that they did not feel compelled to acquit the defendant or quash the case altogether…”. Loewenstein to Fahy, December 27, 1945, Loewenstein Papers, FLAC, box 40.

152. Loewenstein would resign unless he was transferred out of the Administration of Justice Branch operated by his despised boss, Norman Shepard. Nothing came of this incident. OD, December 28, 1945.

153. Ibid., January 5, 1946.

154. Ibid., January 13, 1946.

155. Ibid.

156. Ibid., January 8, 1946.

157. Unlike Fahy, however, Madden arrived in Germany with a career position as a federal judge, and returned to the same bench immediately following his year with Legal Division.

158. For the political and diplomatic background to these developments, see generally, Eisenberg Carolyn Woods, Drawing the Line: The American Decision to Divide Germany, 1944-1949 (Cambridge: Cambridge University Press, 1996).

159. Gimbel, American Occupation, 44, 92–93.

160. Loewenstein Karl, “Law and the Legislative Process in Occupied Germany II,” Yale Law Journal 57 (1947–1948): 996.

161. Staffed by judges who had not been members of the Nazi Party, these courts were permitted to try petty criminal and divorce cases involving German citizens. Szanajda, Restoration of Justice, 59–60.

162. ACC, Proclamation No. 3: “Fundamental Principles of Judicial Reform”. See generally, Loewenstein, “Reconstruction of Justice,” 421.

163. Although the courts would not exercise jurisdiction over cases involving Allied personnel, policies or actions, they would enjoy broad authority in the interpretation and application of German civil and criminal law in cases involving German citizens. ACC, Law No. 4: “Reorganization of the German Judicial System”. Ibid.

164. Loewenstein, “Reconstruction of Justice,” 430.

165. Loewenstein, OD, February 8, 1946.

166. For a summary of American reports on the reopened courts, see Loewenstein Legal Reconstruction in Germany, 17.

167. Loewenstein, OD, January 28, 1946.

168. Ibid., March 5, 1946.

169. Loewenstein to Fahy (through McLendon), March 25, 1946, NARA, RG 260, LD-AJ, box 74.

170. Loewenstein's contention is broadly supported in the historical literature. See generally, Ledford, “German Lawyers and the State in the Weimar Republic,” 317–49; Nathans, “Legal Order as Motive and Mask,” 281–304.

171. Loewenstein to Fahy (through McLendon), March 25, 1946, NARA, RG 260, LD-AJB, box 74.

172. The judges of the Nazi period fully vindicated the earlier observation of Karl Kraus that Germany was not only a land of “dichter und denker” (poets and thinkers) but also of “richter und henker” (judges and executioners). My thanks to Carl Landauer for bringing this remark to my attention. For a general discussion of the operation of criminal justice in the Nazi era, see generally, Evans, Third Reich in Power, 71–80.

173. Loewenstein, OD, March 20, 1946.

174. Loewenstein later revisited this point in a scholarly article. Loewenstein, “Reconstruction of Justice,” 431–33.

175. Ibid.

176. Loewenstein, OD, March 18, 1946.

177. Ibid., April 20, 1946.

178. Madden's pick was the German–Jewish émigré lawyer, Max Rheinstein. Loewenstein was contemptuous of (what he viewed as) Rheinstein's strange, even neurotic desire to exonerate former Nazi jurists. As Loewenstein bitterly diarized on April 25, 1946, “Rheinstein is a true fifth columnist and doesn't wish to touch the pure and nice Germans… . They will be alright after what they have suffered, look at their wantonly destroyed cities, etc. He does not remember that after 1919 the courts sabotaged deliberately the young republic, to the delight of the entire bourgeoisie… . I try and hold him back so at least the internal controls which the Germans themselves wish to institute will get into our final draft.”

179. The draft plan called for the use of “former referendars [graduates of law who had not yet qualified for the German bar] who left Germany after Hitler” as court supervisors. In Loewenstein's opinion, referendars had far too little experience and prestige “to be capable of exercising the function of control” over judges. Loewenstein to McLendon, April 29, 1946, Loewenstein Papers, FLAC, box 28.

180. Loewenstein, OD, May 27, 1946.

181. McLendon and Shepard, too, had come to Germany without specialized expertise in German law, history, or language. In his diary, Loewenstein was caustically critical of both men. After working for many months with Shepard, Loewenstein flatly concluded that he was too “stupid” for such a challenging job. OD, January 28 and March 13, 1946. Of the chief of the section, Colonel McLendon, Loewenstein saw him as “a charming Southern gentleman” who had been put in a position far beyond his intellectual depth and training. OD, July 2, 1946.

182. For a summary of the deficiencies of the court supervision program, see Loewenstein, Legal Reconstruction in Germany, 47–57.

183. Ibid.

184. See generally, Peterson, Retreat to Victory, 347–52; Boehling, A Question of Priorities, 210–67.

185. Loewenstein, Legal Reconstruction in Germany, 59–60.

186. Ibid., 57–58.

187. Ibid.

188. Loewenstein to Madden, December 14, 1945, Loewenstein Papers, FLAC, box 28.

189. Loewenstein, OD, December 5, 1945. According to Loewenstein, the Nazis had taken a relatively decentralized system of bar regulation and had subjected it to “Prussian” central controls by the Justice Ministry in Berlin. Loewenstein to Madden, May 4, 1946, Loewenstein Papers, FLAC, box 28. For a general description of the German system of bar organization and admission, see Ledford, “German Lawyers and the State,” 325–28; and Jarausch, Unfree Professions, 9–10, 131–34.

190. Loewenstein lamented that only two colleagues provided comments on the (crucial) German language version of the proposal, and then only on technical points of drafting. OD, January 5, 1946.

191. The ministers opposed the plan on the ostensible basis that it ran contrary to the Allied commitment at Potsdam to decentralize German government and to promote democratically-elected regional government. The ministers were also concerned by the prospect of a large and rapid influx of German lawyers (deportees and economic refugees) who had no connection or affinity for their home regions. Loewenstein to Madden, May 27, 1946, Loewenstein Papers, FLAC, box 24.

192. Loewenstein to Madden, May 4, 1946, Loewenstein Papers, FLAC, box 28.

193. Ibid.

194. Loewenstein to Madden, June 10, 1946, Loewenstein Papers, FLAC, box 28.

195. Loewenstein, Legal Reconstruction in Germany, 60–62.

196. Loewenstein to Madden, June 10, 1946, Loewenstein Papers, FLAC, box 28.

197. Loewenstein, Legal Reconstruction in Germany, 60–62.

198. In late May1946, Madden asked Loewenstein to work on a “comprehensive law on the legal career and education” in answer to the Soviet proposals. OD, May 29, 1946.

199. Loewenstein to Fahy, April 23, 1946, Loewenstein Papers, FLAC, box 28.

200. Ibid.

201. Ibid.

202. Ibid.

203. Ibid. The reassertion of influence by the Nazis was so brazen that when the University opened its doors for the first postwar session in January 1946, its Nazi-appointed chair in “Racial Science” (the Professor Prinz Ysenburg) had offered a full course of lectures.

204. Loewenstein, OD, April 8, 1946.

205. New York Times, April 23, 1946, 8.

206. According to Loewenstein, Taylor “had to do a lot of explaining” to his bosses in the wake of the story. OD, May 11, 1946. For the decision to reopen the law school at Munich, see Fahy to Internal Affairs, March 30, 1946, NARA, RG 260, LD-AJ, box 89.

207. Loewenstein, OD, May 11, 1946. Loewenstein recorded that there had been an unfortunate “coincidence” of timing and sources but that he had neither met nor communicated with the Times' reporter.

208. Loewenstein to Fahy, May 10, 1946, Loewenstein Papers, FLAC, box 28.

209. Fahy to Loewenstein, April 29, 1946, Loewenstein Papers, FLAC, box 28.

210. Loewenstein, Legal Reconstruction in Germany,76–81.

211. Loewenstein to Knappen, December 20, 1947, Loewenstein Papers, FLAC, box 29. Loewenstein's pessimistic assessment of the de-Nazification of Munich University has been largely borne out by subsequent scholarly study. For a detailed study of similar problems at the University of Heidelberg, see Remy Steven P., The Heidelberg Myth: The Nazification and Denazification of a German University (Cambridge: Harvard University Press, 2002).

212. Loewenstein, OD, April 16, 1946.

213. Ibid., April 10, 1946.

214. Ibid., April 12, 1946.

215. Ibid., April 20, 1946.

216. Ibid., April 29, 1946.

217. Ibid., May 7, 1946.

218. Ibid., July 14, 1946.

219. Ibid., June 28, 1946.

220. However, on the invitation of the cultural affairs and educational departments of AMG, Loewenstein returned to the American zone in the summers of 1947 and 1948 to deliver a series of public lectures (in German to German audiences) on the meaning and practice of political democracy.

221. This inhospitality does not appear to have stemmed mainly, or even substantially, from the fact that Loewenstein was a Jew. In fact, in his diary Loewenstein frequently noted that other Jewish advisors (Fritz Oppenheimer, most prominently) exerted too much influence at AMG. For a discussion of the intensification of anti-Semitic prejudice at AMG after 1946, see Bendersky Joseph W., The “Jewish Threat”: Anti-Semitic Policies of the US Army (Perseus Books: New York, 2000), 366–67.

222. For his summary of these points, see Loewenstein's letter to the New York Times, December 8, 1946.

223. As Loewenstein later summarized the point, “The Germans have never, and do not now, consider Nazism as evidence of social or moral turpitude. Nazism cannot be held a crime now because under the regime Party membership was legal and desirable.” Ibid.

224. As Loewenstein generalized the point, “Professions which are instrumental in the formation of public opinion should be thoroughly and ruthlessly purged of even nominal Nazis.” Ibid.

225. As Loewenstein recorded in his diary, “The most distressing and amazing development I found here was the distinction between the bad Nazis and the good German people…Not a single one of the anti-Nazi lawyers I talked to seemed to be aware that the Nazis were the majority of the German people.” OD, August 29, 1945.

226. Or so Loewenstein summed up this manner of thinking. Soon after he returned to the United States in the late summer of 1946, Loewenstein expressed concern (to an important official at AMG) that in American circles “Russophobia has reached dangerous proportions,” and that the Germans would skillfully exploit this fear in blunting the edge of American reform programs. Loewenstein to Edward Litchfield, October 18, 1946. NARA, RG 260, Civil Affairs Division, box 75.

227. Loewenstein, OD, May 4, 1946. See also, Loewenstein, Letter to the New York Times, December 8, 1946. Interestingly, Fritz Oppenheimer, having returned to his law practice in the United States, published an attempted rebuttal of Loewenstein's views. See Oppenheimer, Letter to the New York Times, January 12, 1947.

228. Loewenstein, Legal Reconstruction in Germany,41.

229. As Loewenstein stated (prophetically) in January, 1946, “And we are turning over the government to the ‘good’ Germans so rapidly that within a year from now all the Nazis will be back and those who were excluded now will be the heroes and even compensated by the state for their martyrdom.” OD, January 7, 1946. For confirmation of his prediction in the modern historiography, see generally, Michael Stolleis, “Prologue: Reluctance to Glance in the Mirror,” in Darker Legacies of Law in Europe, ed. Joerges and Ghaleigh,1–19; Gaab, Justice Delayed, 64–70; and Szanajda, Postwar Hesse, 125–39.

230. Loewenstein summarized these views in his letter to the New York Times, Dec. 8, 1946.

231. Although Loewenstein probably overestimated this threat, it was not inconsequential. For the growing body of work on the impact of Nazism on the postwar German legal system, see generally, Stolleis, “Prologue: Reluctance to Glance in the Mirror”. The Nazi legacy was especially acute in the context of postwar German prosecutions of crimes during the Third Reich. See generally, Teschke John P., Hitler's Legacy: Germany Confronts the Aftermath of the Third Reich (New York: Peter Lang, 1999), 61104; von Miquel Marc, “Explanation, Disassociation, Apologia: The Debate over the Criminal Prosecution of Nazi Crimes,” in Coping with the Nazi Past: West German Debates on Nazism, ed. Gassert Phillip and Steinweis Alan E. (New York: Berghahn Books, 2006), 5063.

232. Loewenstein once observed of Fahy that he was “a considerable politician, but not exactly what is needed for this job. The Legal Division of AMG cannot be run like a Department of Justice. It must have some dynamism of its own.” OD, March 22, 1946.

233. Loewenstein was not alone in decrying this fact. Early in 1946, Howard Becker, an expert in German sociology who had worked with the OSS, and then briefly with AMG in Bavaria, expressed a similar opinion in a letter to the War Department: “I feel our policy of choosing administrators for civilian affairs in Germany is basically wrong..”. In his experience, none of the top men at AMG “spoke any German, knew anything about Germany, or, indeed, had ever manifested any interest in the continent of Europe before being thrust into their difficult tasks. The results are deplorable…”. Becker to General Hilldring, February 19, 1946, NARA, RG 165, Civil Affairs Division, box 173.

234. Loewenstein, OD, January 7, 1946.

235. As Loewenstein later wrote, “Few of the legal staff realized in advance the degree of moral erosion to which Germany had been subjected by the Nazi regime, nor were they educated for the even more exacting assignment of rediscovering under the Nazi rubble the Gestalt of the German social and legal order.” Loewenstein, “Law and the Legislative Process II,” 996.

236. Loewenstein, Legal Reconstruction in Germany, 32.

237. As Loewenstein once put the point in his diary: “Why not admit that democracy doesn't have force for former Nazis. This is my idea of militant democracy…Why not say openly that we confine democracy to the non-Nazis.” OD, January 17, 1946.

238. Ibid., 41.

239. Ibid., February 8, 1946.

240. Ibid., May 4, 1946.

241. Ibid., May 4, 1946.

242. The chief of the British legal mission in Germany, Richard Wilberforce, also observed Loewenstein argue as if “perfect plans” might be made for the democratization of the German legal system. In his belief that “if you work long and hard enough you can be right about everything,” Loewenstein seemed almost stereotypically “German,” and completely out of sympathy with his pragmatic American colleagues. Wilberforce, Reflections on my Life, Diary entry: September 5, 1945, Appendix 3, 167.

243. For Loewenstein's report on his activities in Germany in the summer of 1948, see Civil Affairs Administration–Democratization Branch to Legal Division, February 25, 1949, NARA, RG 260, LD, Box 6.

244. Karl Loewenstein, “The Political Balance Sheet of the Occupation,” Paper delivered before the American Political Science Association Meeting, December 28, 1949, Loewenstein Papers, FLAC, box 28.

245. In his briefing of Roger Nash Baldwin (president of the American Civil Liberties Union) in September, 1950, Loewenstein presented a “very discouraging picture” of German democratization. In Loewenstein's view, the best way of preventing Germany from reverting to its “autocratic patterns” was in “bringing [it] into a larger unity in an organized Europe.” Nash briefing notes, September 15, 1950, Roger Nash Baldwin Papers, Princeton University, box 17.

246. Loewenstein interview, Springfield Daily News, January 19, 1949, Loewenstein Papers, FLAC, box 28.

247. Loewenstein, “Law and the Legislative Process in Occupied Germany II,” 997.

248. Ibid.

249. Ibid.

250. Loewenstein observed that the Occupation Statute (of April, 1949) “however badly drafted,” still provided the western Allies with means to impose “external controls” on the West Germans. According to Norbert Frei, such intervention was in fact “inestimably important to the young West German state.” In its absence, Frei argued, “the risk of an organizational merging of nationalist and Nazi political currents would have been far greater.” See Frei, Adenauer's Germany and the Nazi Past: The Politics of Amnesty and Integration (New York: Columbia University Press, 2002), 306.

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