Black Earth(63)

Beyond manipulation itself there was no object or subject of politics. There was only the darkness that is consummate when gifted minds such as Schmitt’s cloak evil with unreason. As Germany undid Austria and Czechoslovakia, as the Soviet Union occupied and annexed Lithuania, Latvia, and Estonia, and as the two together destroyed Poland, Schmitt prepared the legal theory of statelessness. It began from the axiom that international law arises not from norms but from power. Rules are interesting only insofar as they reveal who can make exceptions to them. For Schmitt, “obsolete interstate international law” was a masquerade, since all that mattered was who could destroy states. If Germany followed its Führer and ignored “the empty concept of state territory,” German power would flow to its natural frontiers. The result would be a “sensibly divided earth,” untroubled by the normative restraints on political and military action that Schmitt described as Jewish.

Schmitt believed that the German understanding of law had to be purged of the Jewish “infection,” by which he meant principles that blocked conclusions such as his own. Affirming the end of the state meant applying the law of the jungle and presenting it as actual law. Might did make right, not just in practice, but as a matter of principle; and, of course, this conclusion came very close to abolishing the very idea of principle. The same case was made, in different ways, by other Nazi legal thinkers, such as Viktor Bruns and Edgar Tartarin-Tarnheyden. Arthur Sey?-Inquart, who presided over the end of the Austrian state and administered the occupied Netherlands, was a lawyer and doctor of law. In between those two assignments he was the assistant to Hans Frank, the governor-general of occupied Poland. In western Europe, said Sey?-Inquart, we have a function; in eastern Europe “we have a National Socialist mission.”

Frank, Hitler’s personal lawyer, never ceased to provide circular and specious defenses of the “legality” of what he was doing in occupied Poland: “The law is what serves the race, and lawlessness is what hurts the race.” Non-racist norms were simply the work of Jews, “who instinctively saw in jurisprudence the best possibility to carry out their own racial work.” Frank never forgot that racial triumph meant racial comfort, that Lebensraum was about the pleasures of his living room. He was the sort of man who not only stole a royal castle for his own residence, but actually made tours of other castles to steal their silver for his own table. He sent his wife to make shopping excursions to the Cracow ghetto, where the price was always right. When he left Poland he took its Rembrandts with him.

Lawyers were extremely prominent among those who exported anarchy from Germany. Bruno Müller, for example, commanded an Einsatzgruppe in Poland in 1939 and then an Einsatzkommando in the Soviet Union in 1941. He was a mass murderer of Poles and Jews in two campaigns to obliterate the state. At the first execution of his second campaign he lifted into his hands a two-year-old Jewish child and said: “You must die so that we can live.”

This is what law for the race and against the state had become—and indeed had always meant.

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Germany at war remained a state, if an altered one. For most Germans most of the time, law in its entirely traditional sense, implemented by state instances, still organized life. Policies directed chiefly against German citizens, such as the discrimination of Jews, were most significant as a preparation for a larger struggle. Policies that seemed to weaken the German state, such as the lawless zones of the concentration camps, were templates for the far larger stateless spaces that would arise in the East. Policies that seemed to transform the state, such as the creation of hybrid institutions that united both SS and traditional police, revealed their potential east of Germany, where prewar states were destroyed. Only beyond Germany could the exception truly become the rule, as Schmitt wished, because only beyond Germany could normal political life be obliterated and a new ethos of nihilistic power be created.

As the Einsatzgruppen followed the German army eastward into the doubly occupied lands and then into the prewar Soviet Union, their commanders sometimes communicated with Berlin. British authorities, aided by Polish cryptographers, had built for themselves a replica of the Enigma machine that the Germans used for encoding and decoding messages. As the British came to realize, what they were decoding were kill figures. “We are in the presence,” said Winston Churchill, “of a crime without a name.” Its perpetrators were human beings, operating with initiative and creativity in political circumstances of their own making. State destruction did not alter politics, but rather created a new form of politics, which enabled a new kind of crime.