Private Law in Perilous Times - Austrian Civil Law Jurisdiction under the Nazi Regime

Most publications dealing with civil law during National Socialism focus on decisions as well as the legal situation in the so called "Altreich" without regard to the development in "Austria". The 1968 published "classic" study "Die unbegrenzte Auslegung" by Bernd Rüthers was the first comprehensive account that broached the issue of legal methodology during National Socialism and its influence on the civil law jurisdiction. His groundbreaking work disenchanted the myth that the practice of civil law did not undergo fundamental changes after the National Socialist seizure of power in 1933. In 1988, Rainer Schröder argued in his book " aber im Zivilrecht sind die Richter standhaft geblieben" that although the majority of the decisions of civil law courts do not show any National Socialist imprint, there was definitely a tendency towards ideologically motivated decisions in civil law courts when it came to decisions involving groups considered hostile by the regime. A comprehensive study on the situation in "Austria" (respectively "Ostmark" or "Alpen- Donaugaue") and on the "Austrian" legal situation is yet to be completed. A few articles analyse the legal framework and the contemporary published literature, but the judicial practice is a rare sideshow at best. A single doctoral thesis by a historian (Inge Schinko, Ehescheidungen in der Zeit des Nationalsozialismus. Diskussionen zum Ehegesetz 1938 und die Praxis der Ehescheidungen in Wien zwischen "Rasse"- Politik und Bevölkerungspolitik, Diss. Univ. Wien 2003) takes random samples from the judgments in the "Wiener Stadt- und Landesarchiv" to portray the practice of divorce during National Socialism. The project`s aims are the review of the jurisdiction on Austrian Civil Law between 1938 and 1945, which is accessible in German and Austrian archives, as well as the comprehensive analysis of the methodological approaches to be found in these decisions. The key issue will be to find out, if and to what extent the legal methodology of the civil courts was modified due to the "Anschluss" of Austria to the German "Reich". During the course of this analysis, it will be crucial to examine the explicit and implicit patterns of argumentation and their open or implicit relation to National Socialist ideas of law. The objects of research that will be primarily used for this work are decisions of the Viennese civil law court available in the Municipal and Provincial Archives of Vienna, as well as decisions of the "Bezirksgerichte" or "Amtsgerichte", which are preserved in different archives. The topic will be completed by the examination of judgments of the "Reichsgericht" (and, if possible, of the OGH - the Austrian Supreme Court - from March 1938 to February 1939). As the jurisdiction of the "Reichsgericht" is only partially published, the examination within this project will also cover the unpublished jurisdiction of the "Reichsgericht", which is entirely preserved.

During the national socialist era in Austria it was not only the Criminal Law but also the Civil (Private) Law which was influenced and shaped by the nazi ideology. Judges played a crucial role in this process of ideological alteration of the legal system, they quickly absorbed at least in their language the nazi terminology and the national socialist racist and totalitarian concepts in their judicial application of the law.In an extensive research effort in the Viennese Municipal and Provincial Archives the project team analysed for the first time in a systematic and comprehensive way the still available case files of the Regional Viennese Court in Civil Law Matters (Landesgericht für Zivilrechtssachen, since 1939: Landgericht Wien) from the nazi era in Austria (1938-1945). The outcome is a database (which is freely accessible on the internet) containing basic data for the roughly 55 000 court files from the Landgericht Wien which are available in the Viennese Municipal and Provincial Archives. Up to nine project members were involved in this ground breaking work in the archives, reading and documenting the court files and discovering a number of sometimes quite obvious and sometimes rather hidden ideological aspects of civil law jurisdiction during the nazi regime.A detailed analysis of specific areas of civil court jurisdiction such as Paternity Law, Divorce Law, Testamentary Law and cases involving the Aryanization of Jewish Property revealed that the judges were not only close to National socialism via their party affiliation (in 1942 around 70% of the judges could be identified as members of the NSDAP) but also more or less enthusiastically applied national socialist ideology in their court rulings, in a number of cases it is even obvious that the ruling was primarily motivated by ideological goals.On the other hand, a comprehensive analysis of cases also shows quite a large spectrum of different methodological approaches and quite a wide range of different shades of compliance with national socialist ideological premises. Sometimes judges only pretended to use ideological arguments while ruling in a way which was contrary to the goals of the NSDAP. Another finding concerns the judicial policy in particularly sensitive areas (from the perspective of the racist nazi ideology) such as paternity annulments suits of jewish persons: in this area a strictly national socialist application of the law was secured trough channelling these cases to particularly ideologically reliable nazi judges.