‘Do not judge others, and you will not be judged’ – Fritz Bauer on the potential and responsibilities of human justice
| Author | Károly Bárd |
| Published date | 01 September 2020 |
| Date | 01 September 2020 |
| DOI | http://doi.org/10.1177/2032284420923409 |
| Subject Matter | Analysis/Opinion |
Analysis/Opinion
‘Do not judge others, and you
will not be judged’ – Fritz
Bauer on the potential
and responsibilities
of human justice
K´
aroly B´
ard
Department of Legal Studies, Central European University, Hungary
Abstract
This article, besides evoking the exceptional achievements of the legendary Hesse Chief Prose-
cutor Fritz Bauer and reminding us of his legacy, sets out to identify the interrelationships in his
life’s work and also to reveal the tensions and contradictions between them, both ostensible and
real. Besides identifying the interconnections between the different elements of Bauer’s overall
project, I will show how, in his own perception, cracks began to show in all the components of his
overarching program.
Keywords
Fritz Bauer, national socialism, human rights, Nazi trials, Auschwitz trial, determinism
This homage to Fritz Bauer, the legendary chief prosecutor of the German State of Hesse, is
admittedly somewhat belated. More than a year has passed since politicians and the legal
profession, mainly but by no means exclusively in Germany, commemorated t he 50th anni-
versary of Bauer’s death. Notwithstanding this delay, however, it is essential that we honour
the memory of this outstanding representative of our most precious European values in this
journal.
On 1 July 2018, Frank-Walter Steinmeier, President of the Federal Republic of Germany, gave a
speech at a ceremony marking the 50th anniversary of the passing of Fritz Bauer.
1
The event took
Corresponding author:
K´
aroly B´
ard, Department of Legal Studies, Central European University, Nador utca 9., Budapest, 1051, Hungary.
E-mail: bardk@ceu.edu
1. Frank-Walter Steinmeier, President of the Federal Republic of Germany, ‘Speech by Federal President Frank-Walter
Steinmeier at a ceremony marking the 50th anniversary of the passing of Fritz Bauer’ (speech in Frankfurt am Main,
1 July 2018)
New Journal of European Criminal Law
2020, Vol. 11(3) 267–281
ªThe Author(s) 2020
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DOI: 10.1177/2032284420923409
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place in the Paulskirche in Frankfurt. This is the church where the German National Assembly met
for the first time in 1848, and it was also where the work to draft the first constitution for a united
Germany (the Grundgesetz or Basic Law) was carried out. The venue for the memorial ceremony
was not chosen at random. This was the appropriate place to hold the commemorative event:
Germany’s Basic Law was adopted in 1949, which was also the year when Fritz Bauer returned
from exile. With the entry into force of the Grundgesetz, the Federal Republic had become a
democracy; but, as the president pointed out, it needed people like Fritz Bauer to make it a
‘republic of democrats’.
In his speech President Steinmaier described the funeral of Fritz Bauer, who passed away much
too early in 1968. A few close friends were present at the service, which was held on a rainy day in
July. It was a wordless funeral, without speeches, in keeping with the wishes of the deceased.
Theodor W. Adorno was responsible for the music, and he requ ested Beethoven’s late string
quartets, which are said to ease pain. They did not. The president recalled that the friends were
disconsolate, not only at the loss of Fritz Bauer, but also because he had experienced so little
consolation during his life in Germany, a country for which only very few have done as much as
the chief prosecutor of Hesse. Looking back, the president described Bauer as ‘one of the key
figures in the young democracy that paved Germany’s route back into the community of nations’.
President Steinmeier spoke of the Auschwitz trial, a milestone in the history of the Federal
Republic which, he noted, would not have happened without Fritz Bauer. He also recalled Bauer’s
relentless efforts to bring the mass murderers such as Eichmann and Mengele, or the architects of
the Nazi euthanasia program, to trial.
As regards the Auschwitz trial in Frankfurt, it was in fact Bauer who initiated the holding of a
single, all-encompassing trial instead of bringing several prosecutions in various far-flung German
cities with one or two defendants in each case. He called on the German Supreme Court to assign
the cases of all suspected Auschwitz murderers to the high court (Landgericht) of Frankfurt. In this
way, as the trial unfolded, he intended to demonstrate the operation of the death machinery. By
presenting the genocidal mechanism in its entirety, Bauer’s aim was to educate the German people
and highlight for them the terrible consequences of their obedience, the Untertan mentality, to
which they had been conditioned throughout the centuries.
Bauer was an educator outside the courtroom too, and he was constantly searching for the
sources of Nazism. His famous lecture series was titled ‘The roots of Fascism and Nazism’.
2
The
talks were held at the invitation of youth organisations, and the hosts’ originally intended to have
the lectures published as teaching material for secondary school students. In 1960, however, the
authority to make decisions remained in the hands of a generation infected by the Nazi epidemic
who did not wish to be reminded of their disease. The students’ initiative was thus rejected by the
ministry in charge.
3
In recent years, Bauer has been portrayed in films (such as ‘The State against Fritz Bauer’ by
Fritz Kraume and ‘Labyrinth of Lies’ by Giulio Ricciarelli) as the tireless official who went after
Nazi criminals. There has been much less commentary on Bauer’s criminal poli cy views, his
Todestag-Englisch.pdf;jsessionid¼056890F8490AE95570EBD58A1414C556.1_cid362?__blob¼publicationFile>
accessed 10 April 2020.
2. Fritz Bauer, Die Wurzeln faschistischen und nationalsozialistischen Handelns (first published 1965, Neuausgabe,
Europa¨ische Verlagsanstalt, Hamburg 2016).
3. Ibid 77.
268 New Journal of European Criminal Law 11(3)
ambitious project to redesign the entire penal system, although his contemporaries took the view
that the fight against the Nazi past did not take centre stage in Bauer’s life. Thus, commemorating
Bauer, both the Hesse justice minister and the Ilse Staff, a friend who conducted intensive research
into the responsibility of jurists for the Nazi terror, highlighted his endeavours to humanise the
administration of justice and the prison system. Perhaps, they both thought that through his then
unrealised criminal policy ideas, Bauer would remain with them even after his death.
4
This article,
besides evoking Bauer’s exceptional achievements and reminding us of his legacy, sets out to
identify the interrelationships between these streams of his life’s work and also to reveal the
tensions and contradictions between them, both ostensible and real. Besides identifying the inter-
connections between the different elements of Bauer’s overall project, I will show how, in his own
perception, cracks began to show in all the components of his overarching program.
During his lifetime and for about three decades following his death, Bauer’s criminal policy
ideas met with almost no response outside a c lose circle of his intellectual associat es. When
commemorating Bauer, Richard Schmid considered it shameful that Bauer was not invited to the
committee (Grosse Strafrechtskommission) set up in 1954 to work on the comprehensive reform of
the German criminal code. As he wrote, ‘there must have been clear reasons for this, but post-war
German justice certainly cannot be commended for this fact’.
5
It was not until the 1990s that his
work in this area, which included treatises on such fundamental issues as the relationship between
morals and law, the concept of natural law, the limits of criminal sanctions or the treatment of
juvenile offenders, as well as his comprehensive reform projects, started to be intensively
researched and commented upon.
Bauer was born in Stuttgart to a relatively affluent Jewish family in 1903. He concluded his
studies in law with a dissertation on economic law, and also published in this field later on, but
instead of embarking on a career as a business lawyer he opted to join the judiciary. At the age of
26, he was appointed as one of the youngest judges in Germany. At the time of his appointment, he
had been a long-standing member of the Social Democratic Party, and for this reason, he was
interned in a concentration camp after the National Socialists gained power. Following his release,
he emigrated to Denmark and then, after the occupation of that country, to Sweden. Here, he was
editor-in-chief of the Sozialistische Tribu¨ne, which he founded with others including Willy Brandt,
who was later to become German Chancellor. Bauer returned to Germany in 1949 and, due in part
to his close connections with the social democrat leadership, he was appointed chief prosecutor in
Braunschweig and later in Frankfurt.
In documentaries and semi-documentaries, Bauer is portrayed as a zealous and relentless Nazi
hunter.
6
This term is commonly associated with Simon Wiesenthal and, as we know from Bettina
Stangeth’s research, much of the credit for what was attributed to Wiesenthal is actually due to
Bauer, as it was he who furnished essential information on Eichmann’s whereabouts leading to the
4. Werner Renz, Fritz Bauer und das Versagen der Justiz. Nazi-Prozesse und ihre ‘Trago¨die’ (CEP Europa¨ische Ver-
lagsanstalt, Hamburg 2015) 174. Gu
¨nter Blau also expressed the hope that Bauer’s name would not be associated
exclusively with the Nazi trials but also with his tireless fight for humanising the criminal law of the future. Gu
¨nter Blau,
‘Fritz Bauer’ (1968) 51 Monatsschrift fu
¨r Kriminologie und Strafrechtsreform (MSchKrim), 363.
5. Richard Schmid, ‘Fritz Bauer 1903-1968’ (1968) 1 Kritische Justiz, 61.
6. Werner Renz mentions in his excellent essay commemorating the 50th anniversary of Bauer’s death that the films
present Bauer as a Nazi hunter-hero, but he was completely misunderstood. If anything, the coldness of the Federal
Republic left him feeling resigned: Werner Renz, ‘Staatsanwalt wider Willen’ Die Zeit (Hamburg 27 June 2018) 28.
B´
ard 269
capture of the mass murderer. Thus, the term ‘Nazi hunter’, as it appeared in newspapers,
7
may
even seem pertinent. Bauer did not like the term, however, and President Steinmeier expressed the
view of all those who knew him when he stated that ‘Fritz Bauer was neither a Nazi hunter nor a
god of vengeance’.
8
It is true that he pursuedNazi criminals, but – as he himself repliedto questions from journalists –
he was only doing his duty, as would any other prosecutor of the Federal Republic.
9
He was not a
bloodthirstyhunter and even lacked the temperament of a prosecutor.Indeed, on the 50th anniversary
of Bauer’s death, one of the most knowledgeable scholars ofhis life’s work wrote an article in ‘Die
Zeit’ with the headline ‘The Reluctant Prosecutor’.
In fact, it must have been painful for Bauer to charge defendants under the obsolete penal
provisions of his time, which were antithe tic to the views expressed by him in his schol arly
writings, in the media and in public appearances. He firmly rejected the then prevailing retributive
criminal policy, saw little sense in locking people up in prisons and found the penitentiary system
to be completely outdated. In a letter to one of his friends, he commented that he carried the title of
chief prosecutor with distaste.
10
He made this remark despite having dreamed of becoming a
prosecutor since childhood. Once, he was attacked by his schoolmates after class for being the
only one to correctly answer the teacher’s question. ‘It was you and your parents who killed Jesus
Christ’, they screamed at him. Perhaps, as a child, he was not yet aware of the roots of anti-
Semitism, the frustration of the blockheaded at their own impotence, the feeling of intellectual and
moral inferiority, the envy of the stupid. Nevertheless, he resolved to become a prosecutor.
Granted, he had his own image of what prosecutors are for, that is, to protect the rights and
well-being of people against the arbitrary actions of both state and non-state actors. That is why
he found the German term Staatsanwalt (state attorney) misleading. To Bauer, prosecutors were
not guardians of the state’s interests but defenders of human rights. He saw them as the noblest
caste of attorneys.
11
That said, Bauer did make strenuous efforts to have Nazi criminals put on trial. He thought the
Auschwitz trial was just the beginning, and the murderers involved in the euthanasia programme
should also face justice. He resolutely investigated Eichmann’s whereabouts, with the intention of
having the commander responsible for the extermination of the Hungarian Jewry put on trial in
Germany.
12
Like Ben Gurion, Bauer was less interested in Eichmann as a person, though their
7. Per Mossin, Interview with Fritz Bauer, ‘Ich vergesse den Mo¨rder von Kaj Munk nicht’ in Lena Foljanty and David
Johst (eds), Fritz Bauer. Kleine Schriften (1921-1961 Band 1, 1962-1969 Band 2) (Campus Verlag, Frankfurt/New
York 2018) 1425; Hans Herman Petersen, Interview with Fritz Bauer, ‘Neuer Hitler wu
¨rde heute leichtes Spiel haben’
in Lena Foljanty and David Johst (eds), Fritz Bauer. Kleine Schriften (1921-1961 Band 1, 1962-1969 Band 2) (Campus
Verlag, Frankfurt/New York 2018) 1415.
8. Steinmeier (n 1).
9. Fritz Bauer, ‘Das Lehrstu
¨ck von Kain und Abel’ in Lena Foljanty and David Johst (eds), Fritz Bauer. Kleine Schriften
(1921-1961 Band 1, 1962-1969 Band 2) (Campus Verlag, Frankfurt/New York 2018) 1793.
10. Renz (n 6).
11. Fritz Bauer, ‘Im Kampf um des Menschen Rechte’ in Lena Foljanty and David Johst (eds), Fritz Bauer. Kleine
Schriften (1921-1961 Band 1, 1962-1969 Band 2) (Campus Verlag, Frankfurt/New York 2018) 661–662. Bauer’s text
was originally published in 1955 in the book edited by Elga Kern. Besides Bauer other leading intellectuals including
Bertrand Russell, Pablo Casals and Martin Buber also presented their views on the post-war ‘new world’. Elga Kern
(ed.) Wegweiser in der Zeitwende. Selbstzeugnisse von Bertrand Russell ([inter alia] Reinhardt, Mu
¨nchen, Basel 1955).
12. Fritz Bauer, ‘Deutsche mit Nazi-Vergangenheit konfrontiert’ in Lena Foljanty and David Johst (eds), Fritz Bauer.
Kleine Schriften (1921-1961 Band 1, 1962-1969 Band 2) (Campus Verlag, Frankfurt/New York 2018) 1036.
270 New Journal of European Criminal Law 11(3)
concerns differed somewhat: to the Israeli prime minister what mattered was that the Jewish people
should sit in judgment over the monster,
13
while Bauer – who for a long time hoped that Germany
would seek Eichmann’s extradition
14
– wished to educate his nation through t he trial and to
demonstrate to the world that Germany was willing and able to deal with its Nazi past. He believed
that through prosecuting Eichmann, the German people could learn their lesson and that Germany
could find its way back into the community of nations.
None of the Nazi murderers as individuals were of interest to Bauer.
15
He remarked that any one
of them was interchangeable with the other. In saying this, he contradicted the criminal-policy
credo that he himself espoused throughout his career: the premise that only individualised sanc-
tions that reflect on the causes of crime, and are adjusted to the offenders’ personality, are justified.
This is perhaps one of the most glaring of tensions and contradictions in his oeuvre. Right up until
his death, he was one of the most radical proponents of a criminal policy based on strict determin-
ism and focused on the offender’s personality. This brought him into conflict with the predominant
German doctrines of criminal guilt (Schuldstrafrecht) and retributive punishment (Vergeltungs-
strafrecht). These concepts are founded upon the free will of the individual, and see the criminal
sanction as just retribution for the wrong decision of the individual, and the means of restoring the
moral order. Accordingly, punishment should not pursue any expediency considerations but should
be strictly proportionate to the gravity of the wrongdoing. Bauer’s proposition is that the concept of
retributive justice is a dead end; it is founded on false premises, and its perception of the human
being is distorted. Adherents of Schuldstrafrecht and Vergeltungsstrafrecht (also referred to as the
absolute theory of criminal law) misinterpret the notion of human dignity, the central value in the
German Basic Law (Grundgesetz), which ostensibly provides justification for the penal system
they argue in favour of. Bauer’s undertaking was clearly a herculean one: to justify his proposition,
he had to refute the theological and philosophical theses elaborated by such authorities as Thomas
Aquinas and the giants of German idealism, Hegel and Kant. Only by toppling the ideological
pillars of the absolute/retributive theory could he prove that the dominant interpretation of human
dignity is false, and consequently, retributive justice founded on the assumption of individuals’
free will runs counter to the German Constitution.
To substantiate his proposition, Bauer begins with passages from the Bible saying that judgment
over humans is the prerogative of the divine power. The Biblical ban on ‘passing judgment on one
another’ (Romans, 14) does not of course pro hibit humans from establishing the facts of the
offence and nor does it forbid the award ing of compensation to victims or the imp osition of
sanctions that serve the offender’s resocialisation. What the Bible outlaws is ‘loveless judging’
(das lieblose Richten),
16
the imposition of wrong as a punishment in retaliation for the wrong
committed. Thus, the proposition of the German idealists, specifically that retributive criminal
punishment is warranted by the transcendent moral imperative to restore the equilibrium and that
retaliation is the expression of respect for the offender’s human dignity, runs counter to what the
13. Tom Segev, ‘Die zwei Gesichter des Eichmann Prozesses’
accessed 10 April 2020.
14. Fritz Bauer, ‘Recht oder Unrecht – mein Vaterland’ in Lena Foljanty and David Johst (eds), Fritz Bauer. Kleine
Schriften (1921-1961 Band 1, 1962-1969 Band 2) (Campus Verlag, Frankfurt/New York 2018) 293.
15. Lena Foljanty and David Johst, ‘Einleitung’ (Introduction) in Lena Foljanty and David Johst (eds), Fritz Bauer. Kleine
Schriften (1921-1961 Band 1, 1962-1969 Band 2) (Campus Verlag, Frankfurt/New York 2018) 49.
16. On the interpretation of ‘loveless judging’, see CK Martin Chung, ‘Against Loveless Judging: Fritz Bauer and
Transitional Justice in Post-War Germany’ (2018) 12 Int J Transitional Justice 9–25.
B´
ard 271
Bible commands. In Bauer’s view, ‘just retribution’ is simply revenge (as expressed using the
German pun ‘gerecht is gera¨cht’), and in refutation of Hegel and Kant, he invoked the words of
Nietzsche and Schopenhauer, who argue that retribution is a throwback to our prehuman existence,
which should be abandoned and relegated to the animal world where it belongs.
17
Adherents of the
absolutist theory may, however, argue that retributive criminal sanctions are not the same as pure
revenge, since they are predicated on the voluntary choice, the free will of the individual. Here,
again, Bauer invoked religious and philosophical arguments to rebut the claim of the existence of
freedom of choice. Protestant credo denies the free will of individuals, as evidenced by Luther’s
formulation: those who preach free will deny Christianity. The commandments teach us what we
should do but do not provide us with the strength needed to follow them. They merely show us how
fallible we are and teach us to mistrust ourselves.
18
However, many scholars who cannot produce empirical evidence for the existence of free will
claim that it must be presupposed in order for criminal law to function. Bauer’s counterargument is
that the assumption was perhaps needed in the past, even at the end of the 19th century when the
German Penal Code was drafted, in the absence of adequate knowledge on human behaviour.
However, he posits that due to the immense progress in science, it had become obsolete and
unnecessary. Plato and Zarathustra had no test tubes, so they speculated during their afternoon
walks – what else could they have done?
19
Bauer claimed that the accumulated knowledge of the
natural, medical, human and social sciences guarantee that the societal causes of crime can be
identified and eliminated, and the offenders’ behaviour can be altered.
But to bring about legislative change it was not sufficient to point out that retributive theory was
outdated. Bauer had to prove that the absolute/retributive penal doctrine violated the Grundgesetz,
and that the claim that the retributive sanction was predicated on human dignity, a core value of the
Constitution, was erroneous. Under the Grundgesetz, the Federal Republic was duty bound to
guarantee the rule of law but also the obligation to discharge its social function (sozialer
Rechtsstaat).
20
This is what the concept of human dignity dictates. The assumption of free will,
of humans’ liberty to make autonomous choices is used, Bauer maintains, to absolve the state of its
social responsibility to remove the causes that induce people to commit crimes. Bauer concludes
from all of this that only a penal policy which focuses on the offender (and not on the crime), and
always imposes individualised sanctions, is consistent with the German Constitution. In the 20th
century, he claims, modern med ical science, genetics, psy chology and sociology amasse d an
immense body of knowledge that can be used to find the most expedient sanction that best fits
the needs of a given offender.
The system of sanctions built upon Bauer’s radical determinism is not profoundly original; he
follows Franz von Liszt and Gustav Radbruch’s programme and has borrowed much from Marc
Ancel’s nouvelle d ´
efence sociale.
21
Accordingly, reformatory sanctions serve offenders’
17. Bauer quotes from Schopenhauer’s ‘The World as Will and Representation’ and Nietzsche’s ‘Human All Too Human’.
Fritz Bauer, ‘Die Schuld im Strafrecht’ in Joachim Perels and Irmtrud Wojak (eds), Fritz Bauer – Die Humanita¨t der
Rechtsordnung – Ausgewa¨hlte Schriften (Campus Verlag, 1998) 275.
18. Ibid 268.
19. Fritz Bauer, ‘Die Reformbedu
¨rftigkeit der Strafrechtsreform’ in Joachim Perels and Irmtrud Wojak (eds), Fritz Bauer –
Die Humanita¨t der Rechtsordnung – Ausgewa¨hlte Schriften (Campus Verlag, 1998) 293.
20. Grundgesetz art 20.1.
21. On the nouvelle d´
efence sociale, see Marc Ancel, Social Defence – A Modern Approach to Criminal Problems
(Routledge & Kegan Paul, London 1965) 2.
272 New Journal of European Criminal Law 11(3)
reintegration, security measures protect society from those who prove to be incurable and the so-
called punitive measures are meant to reinforce the legal order (Besta
¨tigung der Rechtsordnung).
Although Bauer fails to give a clear explanation, it appears reasonable to assume that punitive
measures serve the functio n of retribution. In contrast to reformatory and security sanctions,
punitive measures do not target the perpetrator; the addressee is the community, which has to
be made aware that the norm remains in effect despite having been violated. Punitive measures,
however, run counter to Bauer’s creed that prohibits the imposition and aggravation of sanctions
for the purpose of deterring others.
One could of course argue that compliance with norms might be furthered by means other than
deterrence and intimidation. It may suffice to demonstrate the wrong, and the community will draw
the appropriate conclusion, not out of fear but by being persuaded of the correctness of the norm
and the impropriety of its violation. However, can the community learn its lesson from the
violation of a norm if the perpetrator, as Bauer asserts, lacking free will, simply has no other
option than to break the law? For the criminal justice system to accomplish its socio-pedagogic
function, it does not suffice to expose the wrong; the perpetrator also has to be penalised. The
violation of the penal norm that has to be shown to be valid must, by definition, invoke some kind
of sanction. The wrong is translated into a legally relevant crime by having criminal sanctions
attached to it. Therefore, the question is this: Can we impose criminal sanctions to reinforce the
norms, without acknowledging individuals’ free will?
Bauer was dramatically confronted with this dilemma during the Nazi trials. The punishment of
Nazi criminals could not be justified with the need to reform them or with the objective of
protecting society. His friends had no explanation as to why Bauer, who held that only preventive,
forward-looking sanctions are warranted, insisted on trying law-abiding, docile men, whom the
community had no reason to fear and who were not in need of resocialisation. Bauer’s argument
was that the Nazi trials also served prevention: by being confronted with the horrors presented at
the trials, the audience would learn ‘how to behave’. Recalling the genocide in the courtroom
would serve as a valuable historical, legal and moral lesson for the future.
22
However, Bauer had to
concede that the community would only be educated if the trials also revealed that the defendants
had another option and that they were guilty because they freely chose to be part of the genocidal
machinery.
23
Bauer’s radical determinist theory is flawed. Without accepting individuals’ free choice and
culpability (Schuld), punishing Nazi criminals simply makes no sense. Therefore, a criminal policy
approach that focuses exclusively on the offender turns out to be unworkable: although Bauer
proclaims the need for individualised sanctions, thereby renouncing the prevalent Tatstrafrecht,
the personalities of Nazi criminals were of no concern for him. After all, the matter of whose
example is used to teach the audience their lesson is completely irrelevant. The 22 defendants of
the Auschwitz trial, Bauer admits, simply serve as instruments for accomplishing the given objec-
tive.
24
Adorno rightly observes that there is a kind of philosophical incongruence here,
25
and Bauer
himself concedes that this is the schizophrenia he has to live with.
26
22. Ronen Steinke, Fritz Bauer oder Auschwitz vor Gericht (Piper, Mu
¨nchen Berlin Zu
¨rich 2016) 155–156.
23. Lena Foljanty and David Johst (eds), Fritz Bauer. Kleine Schriften (1921-1961 Band 1, 1962-1969 Band 2) (Campus
Verlag, Frankfurt/New York 2018) 30.
24. Steinke (n 22) 157.
25. Ibid 155.
26. Blau, ‘Fritz Bauer’ (n 4) 365.
B´
ard 273
Bauer’s texts on how to deal with offenders under ordinary conditions (when disregarding
others’ rights constitutes deviance) and those who commit crimes on the orders of an infernal
political system (where violation of human rights is the norm) reveal the clue to Bauer’s disinterest
in the Nazi criminals’ personalities. He rightly made a distinction between the extermination of
Jews, the systematic, well-organised production of corpses, and the ‘ordinary’ murder. The Holo-
caust is not the sum of individual incidents, he opined. Splitting it into stand-alone criminal acts
would distort its true nature. As he wrote, the Auschwitz trial could have been one of the shortest
trials in Germany; there was no need to prove the individual crimes committed by the defendants.
The facts of the case and the legal assessment were simple: There was an order to liquidate the
Jews, and whoever acted as part of the infernal machinery was liable for murder . For Bauer,
members of the Nazi criminal organisation were faceless cogs within the genocidal apparatus; for
him, it was irrelevant what role they played within the machinery, nor were their personal motives
of any interest. The simple fact that they took part in the murderous operation of the machinery,
provided of course that they knew about its aim, the liquidation of Jews, made them liable as
principals for murder.
27
Bauer’s position was in stark contrast to the judicial practice of German courts. For the courts,
there were only two groups of principal perpetrators (Ta
¨ter): firstly, Hitler, Heydrich and other
leaders of the Nazi regime, and secondly, the so-called excess-perpetrators, those driven to kill by
hideous personal motives or serious perversions or deficiencies such as sadism or psychopathy; in
other words, those who took part for the reasons why people may also kill under ‘normal condi-
tions’, when murder is deviance and does not constitute the norm. All the others running the
infernal machinery were only convicted of being accessories to murder.
28
For Bauer, the personal
motives of those participating in the bureaucratically organised and state-directed’ mass murders
29
were irrelevant. In contrast, the courts tried to determine whether the perpetrators identified
themselves with the killings, conceiving the murders as their own act, or whether they were simply
the executors of an alien will. The German courts’ focus on individual motives, whereby only a
small group of sadistic torturers were convicted as principals while the contribution of the rest was
classified as being an accessory to murder, absolved huge masses of the population. They were
presented as misled and manipulated individuals who did not identify with the killing they took
part in. The members of the judiciary, including the Auschwitz judge Hofmeyer, who were doing
their job by implementing the objectives of the National Socialist state, were similarly absolved:
they, too, were simply implementing objectives that were allegedly not their own.
30
As indicated earlier, Fritz Bauer’s publications provoked little academic response during his
lifetime, and he was not given the opportunity to shape post-war German criminal law. He
remained an ‘outsider’, and most of his contemporaries viewed him as an alien. The reasons for
Bauer’s exclusion from the elite of German criminal lawyers, the Strafrechtler, are manifold.
27. Fritz Bauer, ‘Im Namen des Volkes. Die strafrechtliche Bewa¨ltigung der Vergangenheit’ (1965) in Joachim Perelsand
Irmtrud Wojak (eds), Fritz Bauer – Die Humanita¨t der Rechtsordnung – Ausgewa¨ hlte Schriften (Campus Verlag, 1998)
83–84.
28. For details, see Werner Renz, Auschwitz vor Gericht. Fritz Bauers Verma
¨chtnis und seine Missachtung (Europa¨ische
Verlagsanstalt, Hamburg 2018) 145–154.
29. Devin O Pendas, The Frankfurt Auschwitz Trial, 1963-1965: Genocide, History, and the Limits of the Law (Cambridge
University Press, Cambridge 2006) 2.
30. Michael J Bazyler and Frank M Tuerkheimer, ‘The Frankfurt Auschwitz Trial’ in Michael J Bazyler and Frank M
Tuerkheimer (eds), Forgotten Trials of the Holocaust (New York University Press, New York and London 2014) 244.
274 New Journal of European Criminal Law 11(3)
Firstly, he himself contributed to the outsider image by consciously disregarding the established
conventions. From time to time, he published in law journals, mainly commenting on court
decisions. However, he wished to address a wider audience, so most of his writings appeared in
daily newspapers, in political science journals and in publications of the trade unions or of the
Social Democratic party, and he made himself accessible to journalists, giving int erviews for
magazines and even tabloids. His intention was to educate his people, which is why he adopted
an engaging and comprehensible style, frequently invoking parables from the Bible and making
reference to religious authorities, grand philosophers and men of letters. He cared little for aca-
demic conventions and ignoring what was (and perhaps remains) a basic prerequisite for being
taken seriously by the research community, he did not litter his writings with citations. To the
‘professionals’, he must have come across as not serious, not sufficiently ‘scientific’. At the same
time, his erudition, the broadn ess of his knowledge, and the lite rary style of his texts would
certainly have been a source of envy.
Another reason for Bauer’s lack of popularity within the academic community was his disdain
for his contemporaries’ research agenda.
31
What is more, he called into question the competency of
the criminal lawyers’ elite, the Strafrechtler, to play a significant role in legislation. Lawmaking
for him was essentially a policy matter, and he argued that disputed issues should be resolved by
politicians and parliament.
32
Bauer’s ostracisation was also due to his criminal policy agenda, which was decades ahead of
that of his contemporaries. As early as the 1950s, he was calling for the humanisation of the prison
system, then some 20 years later, some of his proposals found their way into the law on corrections
adopted in 1976.
33
In 1961, 10 years before discussions started in Germany on the pros and cons of
the bifurcated common law-ty pe trial, Bauer proposed splitt ing the trial into two phases and
inviting experts in the second stage to help judges determine the optimal sentence.
34
While the
victims’ movement achieved its first victories in the early 1980s – the UN adopted the Declaration
of Basic Principles of Justice for Victims of Crime and Abuse of Power in 1985 – Bauer was
already urging the strengthening of victims’ rights in the 1950s.
35
Long before the issue became a
topic of public discussion, he proposed the adoption of the day fine system in Germany and the
setting up of restorative mechanisms.
36
Immediately after World War II, Bauer vehemently urged
the reform of the outdated regulation of sexual offences, which reflected the hypocrisy of Victorian
morality; in the name of artistic freedom and respect for private life, he pressed for the abolition of
obsolete prohibitions. His efforts failed, however, as the Zeitgeist favoured strict prudishness.
Rigid purity was thought to stem the advance of ‘threatening modernity’, Americanisation and
democracy forced on Germans from the outside. Bigoted Christian morality seemed to be justified
31. Fritz Bauer, ‘Die modernen Aufgaben einer Strafrechtsreform’ in Lena Foljanty and David Johst (eds), Fritz Bauer.
Kleine Schriften (1921-1961 Band 1, 1962-1969 Band 2) (Campus Verlag, Frankfurt/New York 2018) 580.
32. Fritz Bauer, ‘Strafrechtsreform und Bundestag’ in Lena Foljanty and David Johst (eds), Fritz Bauer. Kleine Schriften
(1921-1961 Band 1, 1962-1969 Band 2) (Campus Verlag, Frankfurt/New York 2018) 1094.
33. Werner Pa¨ckert, ‘Fritz Bauer und die Reformdes Strafvollzugs’ in Katherina Rauschenberger(ed.), Ru¨ckkehr in Fein-
desland? FritzBauer in der deutsch-ju¨dischen Nachkriegsgeschichte (CampusVerlag, Frankfurt/New York 2013) 209.
34. Fritz Bauer, ‘Hauptverhandlung in zwei Etappen? Sollen Strafe und Massnahmen erst in einer zweiten Verhandlung-
eventuell durch ein sachversta¨ndiges Gremium-bestimmt werden?’ in Lena Foljanty and David Johst (eds), Fritz
Bauer. Kleine Schriften (1921-1961 Band 1, 1962-1969 Band 2) (Campus Verlag, Frankfurt/New York 2018) 1103–
1139.
35. See eg Fritz Bauer, ‘Zum Begriff des Verletzten in der StPO’ (1953) 8(10) JuristenZeitung Jg. 298–300.
36. Fritz Bauer, ‘Ein neues Strafrecht’ Frankfurter Rundschau (Frankfurt am Main 23 October 1954).
B´
ard 275
response to the National Socialists’ godlessness and anticlericalism. Accordingly, adultery was a
criminal offence until 1969, and it was only in 1994 that consensual sexual relationships between
adult males were legalised in Germany.
Bauer was one of the few to properly conceptu alise the Holocaust as the bureaucrat ically
organised, state-directed liquidation of an entire group of people that cannot be properly appre-
hended by concepts courts employ when trying ordinary murder committed by individuals for
personal motives. German courts were prevented from addressing the systematic annihilation of
Jews as crime against humanity or genocide but had to try Nazi criminals under the Penal Code that
was in effect at the time. However, Bauer showed that the provisions of the 1871 Penal Code could
be also be applied, using the traditional ju dicial methodology, in a manner that reflec ted the
systematic nature of the Holocaust as a feature that distinguished it from ‘ordinary’ murder.
Auschwitz, he argued, was a single complex and the annihilation of Jews constituted a single
offence.
37
There was one order to exterminate the Jews, and Auschwitz, Treblinka and so on were
the murder weapons. Anyone who knew that and contributed to the operation of the extermination
machinery was liable for murder. To obtain a conviction, there was no need to prove individual
participation in specific offences.
38
His position was not shared by the Frankfurt court. It took half
a decade for the German judiciary to recognise that it was Bauer’s ‘one single offence’ concept that
truly expressed the criminal liability of individuals for crimes committed within the extermination
machinery.
It is highly likely that Bauer’s Jewishness also contributed to his being an alien in the eyes of
most of his contemporaries. The marginalisation of Jews, and later their expulsion from the legal
sphere, had already started in the first decades of the 20th century. After Hitler took power, the
‘crown jurist of the Third Reich’, Reichgruppenwalter Carl Schmitt, proclaimed in 1936 that it is
not enough to simply reject ‘some flagrantly intrusive and unpleasant Jewish phenomena. Instead,
we need epistemological proof on the inferiority of Jewish jurisprudence’.
39
Epistemological,
scientific evidence indeed! But there is no reason to suspect a joke: in the same year, Philipp
Lenard published his textbook of German Physics laying down the principles that distinguished
Arian physics from Jewish physics. In the foreword, Lenard commented that he could have used
the terms ‘Arian Physics or the ‘Physics of the Northern Race’ because science, just like any other
phenomenon created by humans, was determined by the blood of the race.
Scholars of the ‘scientifically-proven-to-be-inferior Jewish legal theory’ who did not manage
to escape in time ended up in concentration camps. And Germany’s capitulation did not stem the
tide: Jewish returnees were not well received, and anti-Semitism survived. In an interview, Bauer
explained that hatred of Jews prevailed: ‘The difference is that they do not yell ‘‘Jewish sow,’’
but ‘‘what a shame you escapedthe gas chamber.’’’
40
Anti-Semitism did not disappear, while the
37. For details, see Fritz Bauer, ‘Ideal-oder Realkonkurrenz bei nationalsozialistischen Verbrechen?’ (1967) 22(20) Jur-
istenZeitung 625–628.
38. Fritz Bauer, ‘Im Namen des Volkes. Die strafrechtliche Bewa¨ltigung der Vergangenheit (1965)’ in Joachim Perelsand
Irmtrud Wojak (eds), Fritz Bauer - Die Humanita¨t der Rechtsordnung - Ausgewa¨hlte Schriften (Campus Verlag, 1998)
83.
39. Deutscher Rechts-Verlag (ed.), ‘Das Judentum in der Rechtswissenschaft, Heft 1. 14.o.’ cited by Christian Busse in
‘‘‘Eine Maske is gefallen’’ – Die Berliner Tagung ‘‘Das Judentum und die Rechtswissenschaft’’ vom 3./4. October
1936’ (2000) Kritische Justiz 4, 584. For a summary of Schmitt’s gruesome speech, see Hans Ulrich Wehler, Der
Nationalsozialismus:Bewegung, Fu
¨hrerschaft, Verbrechen, 1919-1945 (C.H. Beck, Mu
¨nchen 2009) 139–140.
40. Hans Herman Petersen (n 7) 1416–1417.
276 New Journal of European Criminal Law 11(3)
former Reichsgruppenwalter, the proponent of the superior German legal theory, had been
elevated to the status of ‘outstanding representative of European public law’ – this being the
title that the community of German jurists bestowedonCarlSchmittathis70thbirthdayinthe
late 1950s.
41
But another reason why his contemporaries perceived Bauer as an alien was that, in a sense, he
was one. He had spent 13 years in exile, and the Germany to which he returned was an unknown
country for him. As if awakening from a decade-long coma, he might have thought that he had
returned to the Weimar Republic of the 1920s. He believed that the grand project started by his
idol, Gustav Radbruch, could now be brought to fruition. When asked why he had returned to
Germany he replied: ‘I thought I could bring with me the optimism and faith of the young
democrats of the Weimar Republic’.
42
Indeed, unlike many of the left-wing intellectuals who –
believing that the Shoah was not an unfortunate slip – gave up their optimistic Weltanschaung or
faith in the inexorability of progress,
43
Bauer retained the hope that the values of Weimar, namely
humanism and democracy, would prevail.
His optimism was due to his faith in young Germans. Speaking about the Nazi trials, he asserted
that it was the ‘new generation, eager to know what had happened, that made us go ahead’.
44
Bauer’s conviction that the new generation, the ‘68ers, had inherited nothing of their fathers’
Nazism is best illustrated by the fact that one of his closest confidantes was Thomas Harlan, the
son of Goebbels’ prot´eg´e Veit Harlan, who had directed Jud Su
¨b, the antisemitic propaganda film
that all guards in Auschwitz were required to watch. Veit Harlan was prosecuted several times after
the war but never convicted. When asked about the reason for his father’s acquittal Thomas Harlan
replied bluntly: ‘Because the judge, too, was a murderer’.
45
It was partly Weimar as an ideal, and partly his frustration over its fall, that made Bauer a
radical advocate of offender-centred criminal law (Ta¨terstrafrecht) and of the supremacy of natural
law over positive law. He believed that the reform of the penal system launched by Gustav
Radbruch, which set out to use the achievements of science to explore and eliminate the determi-
nants of crime, could be completed in the new Germany. He also believed that jurists’ uncondi-
tional obedience to positive law was a reflection of the Germans’ subservient attitude, which in
turn had been the source of Nazism. He was hoping that the Nazi horrors had taught the Germans
that there were higher values that took precedence over positive law, and he claimed that this
natural law not only permits but mandates resistance to inhuman statutory provisions. Bauer’s
radical determinism and focus on the offender, as well as his enthusiasm for supra-positive natural
41. Hans Barion, Ernst Forsthoff and Werner Weber (eds), Festschrift fu¨r Carl Schmitt zum 70. Geburtstag dargebracht
von Freunden und Schu
¨lern (Duncker & Humblot, 1959). See also Hans Barion, Ernst Wolfgang Bo¨ckenfo¨rde, Ernst
Forsthoff and Werner Weber (eds), Epirrhosis, Festgabe fu¨r Carl Schmitt zum 80. Geburtstag (Duncker & Humblot,
Berlin 1968).
42. Unsere Weihnachtsumfrage, ‘Warum sind Sie zuru
¨ckgekehrt?’ in Lena Foljanty and David Johst (eds), Fritz Bauer.
Kleine Schriften (1921-1961 Band 1, 1962-1969 Band 2) (Campus Verlag, Frankfurt/New York 2018) 1274.
43. Raphael Gross and Sybille Steinbacher, ‘Vorwort’ (Foreword) in Lena Foljanty and David Johst (eds), Fritz Bauer.
Kleine Schriften (1921-1961 Band 1, 1962-1969 Band 2) (Campus Verlag, Frankfurt/New York 2018) 27.
44. Unbewa¨ltigte Vergangenheit, Interview with Fritz Bauer, ‘Ein Jurist nimmt Stellung’ in Lena Foljanty and David Johst
(eds), Fritz Bauer. Kleine Schriften (1921-1961 Band 1, 1962-1969 Band 2) (Campus Verlag, Frankfurt/New York
2018) 1047.
45. Edo Reents, ‘Besuch bei Thomas Harlan – Wie es war, als mir Goebbels eine Ma¨rklin kaufte’ Frankfurter Allgemeine
Zeitung (Frankfurt 15 January 2007)
es-war-als-mir-goebbels-eine-maerklin-kaufte-1407439-p4.html> accessed 12 April 2020.
B´
ard 277
law, also contributed to the German legal community’s perception of Bauer as an alien and his
concepts as disquieting. They had first-hand experience of Nazi legal ideology and knew only too
well that prominent representatives of National Socialist jurisprudence were also proponents of
Ta¨terstrafrecht, albeit in its perverted form. They were also aware that the Nazis too had con-
demned legal positivism.
In his writings chastising the dominant retributivist Tatstrafrecht, Bauer regularly invokes
Schiller: ‘The thought matters far more than the act, and much more important than the effects
of the act is the source of the thought’.
46
Schiller formulates the humanistic idea that we must
reveal the human behind the deed. For representatives of the aborted Nazi Gesinnungsstrafrecht,
the action as it is manifested in the outside world is completely irrelevant. What counts is the
individual’s disposition, their attitude. According to the doctrine of the normative criminal type,
developed by a prominent National Socialist criminal lawyer, thieves are not those who steal, but
only those who by their disposition, their ‘inner substance’, belong to the species of thieves.
47
The
National Socialist concept of Ta¨terstrafrecht made its way into the German Criminal Code when,
in 1935, the National Socialists abandoned the principle of nullum crimen sine lege. Consequently,
courts could convict individuals even in the absence of a criminal provision in the Special Part of
the Code, if they found that the individual had acted contrary to the spirit of the law or to the
‘healthy sentiment’ of the people (‘gesundes Volksempfinden’). This is how National Socialism
perverted the noble idea of focusing on the personality of the offender. Hitler’s ‘blood judge’,
Roland Freisler, expressed the essence of this rule with brutal simplicity: ‘The legislator does not
construe the criminal through the constituent elements of the crime. It bluntly presents him to the
judge, who examines him and proclaims: he deserves the rope’.
48
It is comprehensible, therefore,
that Bauer’s concept of focusing on the offender and not the gravity of the deed was met with
silence at best. His colleagues had experienced Nazi madness first hand, and many of them had
been infected by the epidemic themselves. They did not wish to be reminded of their prior selves.
This was one of the reasons why German jurists returned to legal positivism, following the brief
natural law revolution, after World War II. Bauer, for his part, kept on arguing for a higher law that
is superior to statutory provisions. He saw the German jurists’ unconditional subordination to any
statute, irrespective of its substance, as a sign of unqualified obedience, which in turn he consid-
ered to be the source of Nazism. One of the symptoms of the Germans’ abandonment of personal
autonomy and freedom, he argued, was th e dereliction of ancient German law th at had been
consistent with the community’s religious and moral values. This ancestral law was replaced by
Roman law ‘with its merciless logic and brilliant system of definitions, which, diverging from the
higher values, has acquired an autonomous existence in the form of man-made statutes’.
49
Bauer
posited that legal positivism, the fetishisation of statutory law by jurists, was one of the causes of
the Weimar Republic’s failure. But National Socialist legal scholarship had also proclaimed the
war against ‘degenerate legal positivism, which has replaced the ancient German law with soulless
46. Friedrich Schiller, Verbrecher aus verlorener Ehre (1786).
47. Georg Dahm developed his doctrine in the monograph titled ‘Der Ta¨tertyp im Strafrecht’ published in 1940. Cited by
Hans-Heinrich Jescheck and Thomas Weigend, in Lehrbuch des Strafrechts: Allgemeiner Teil (Duncker & Humblot,
Berlin 1988) 48.
48. Cited by Thomas Fischer, in ‘Vo¨lkisches Recht’ Die Zeit (Hamburg 12 December 2013) 51
51/mord-paragraph-nationalsozialismus> accessed 12 May 2019.
49. Fritz Bauer, ‘Die ungesu
¨hnte Nazi-Justiz’ in Lena Foljanty and David Johst (eds), Fritz Bauer. Kleine Schriften (1921-
1961 Band 1, 1962-1969 Band 2) (Campus Verlag, Frankfurt/New York 2018) 960; Bauer (n 2) 39–41.
278 New Journal of European Criminal Law 11(3)
formalism and legal processes rooted in Roman law’.
50
They, too, had called for a return to a
higher authority, and for the Nazis, this superior instance was the racially determined conscience of
the German blood community.
Throughout his life, Bauer maintained that it was the Germans’ Untertan mentality that had
developed over the centuries that allowed the Nazis to come to power, their unconditional sub-
ordination to authority which for them was identical with brutal power. This authority induced fear,
but this was exactly why it could be respected.
As to the role played by legal positivism in Nazis’ rising to power, Bauer subsequently revised
his position shortly before his death. He realised that the practice of the conservative judiciary,
which hated the new democracy and persistently laboured to restore the pre-republican political
regime, had nothing to do with the positivist interpretation of laws. On the contrary, under the
gown of judicial independence and a particular variant of natural law, they favoured the right-wing
political forces and deliberately obstructed the republic, which they abhorred since it was tolerant
instead of brutality and its principal value was freedom as opposed to uncritical obedience and
order.
51
Fritz Bauer’s resolute struggle to expose the source of Nazism and lay the foundations of
democracy in Germany started with ‘restoring, through the legal process, the integrity of those
who stood up against Hitler’s infernal regime’.
52
In the early 1950s, Otto Ernst Remer, a candidate
for the neo-Nazi Sozialistische Reichspartei, libelled Graf Stauffenberg and the other participants
in the attempted assassination of Hitler as traitors during an election campaign. In the defamation
trial, Bauer personally represented the prosecution. As a matter of fact, the trial was not about
Remer; his person was irrelevant to Bauer, who did not even put forward a motion on the sanction
to be imposed on the defendant.
53
Rather, the trial provided the opportunity for presenting the
troubled German people with a behavioural pattern for the future. For this, exemplars were needed
and Stauffenberg, the chivalrous German aristocrat who for years had been loyal to Hitler, seemed
ideal to demonstrate that the Nazi regime was in fact the negation of all that was truly German. The
trial was to prove that the revolt against Hitler’s regime was consistent with the Germans’ ancient
right to resist tyranny and that Stauffenberg and his co-conspirators were patriots. They followed
Christian ethics and possessed all the virtues consecrated by German culture. Bauer first quotes
Stauffacher from Schiller’s Will iam Tell: When oppression become s unbearable, one ‘makes
appeal to Heaven / And thence brings down his everlasting rights, / Which there abide, inalienably
his, / And indestructible as are the stars’ (Act 2, Scene 2). The appeal to a ‘higher authority’ is the
substance of natural law, and Bauer, the advocate thereof, might even have stopped at this point.
But he had to convince the legal positivists, the judges, so he provided a detailed analysis con-
cluding that the National Socialist regime had no valid legal grounds for its existence. Hitler came
to power through a violation of the Weimar Constitution, as the merging of the functions of the
head of state and of the chancellor was unlawful and therefore invalid. Civil servants and the
military had not been relieved of their oath of allegiance to the Weimar Republic before they swore
50. Joachim C Fest, ‘Hans Frank – Kopie eines Gewaltmenschen’ in Joachim C Fest, Das Gesicht des Dritten Reiches
(Piper, Mu
¨nchen Zu
¨rich 1997) 289.
51. Fritz Bauer, ‘Justiz als Symptom’ in Lena Foljanty and David Johst (eds), Fritz Bauer. Kleine Schriften (1921-1961
Band 1, 1962-1969 Band 2) (Campus Verlag, Frankfurt/New York 2018) 1326.
52. ‘Einleitungder Herausgeber’in Joachim Perelsand Irmtrud Wojak (eds), FritzBauer - Die Humanita¨t der Rechtsordnung -
Ausgewa
¨hlte Schriften(Campus Verlag, Frankfurt/New York 1998)15.
53. Steinke (n 22) 151.
B´
ard 279
loyalty to Hitler. A dual oath is null and void and thus it could not be breached. In summary, de
jure, the Nazi state simply did not exist, and a non-existent state is by definition incapable of being
betrayed (ist hochverratsunfa¨hig).
54
Bauer’s agenda throughout his life was to prevent the fate of the Weimar Republic from
reoccurring. It was this overarching objective that connected the elements of his program, his
activity as educator, prosecutor and legal scholar. He sensed that the new republic was fragile, and
its breakdown could only be averted if Germans were to shed their servile obedience and the
accompanying brutality committed against the weak if ordered by those in authority. He returned
from exile full of optimism, convinced that when confronted with the Nazi hell the new generation
would opt for freedom instead of servitude; for reason, tolerance and empathy instead of brute
force. To present inhumanity, the trial of the Nazi murderers was needed. At the same time, it had
to be shown that there was an alternative to inhumanity. The Remer trial served this purpose, with
Stauffenberg as the main protagonist – the embodiment of the best German tradition, who revolted
against tyranny at the cost of his life.
Bauer was a radical determinist, who believed that people can be reformed. He was confident
that the social conditions that induce people to commit crime can be altered and that h uman
personality can be shaped through education and psychotherapy and, if needs be, through medical
intervention. It is the young people who are open to education and can be reformed. The older
generation who have been trained throughout their life to servility and have slavishly served any
regime, Bauer rightly thought, are so unreceptive as to be hopeless.
Shortly before his death, he was plagued by doubts regarding the success of his project as its
individual elements started to falter. It was at that time that he became aware of the destructive
consequences of his extremist determinism and fanatic faith in the potential of science. He realised
that modern science, which he thought would guarantee the victory of the Ta¨terstrafrecht, may also
be abused to manipulatethe human personality and destroy humandignity.
55
In 1961, he declared in
an interview that the majority of the population, and the younger generations in particular, believe
that it is essential to try Nazi criminals. The reaction to the Auschwitz trial shattered his illusions:
only 60%of Germans had even heard of the trial, and two-thirds opined that it was time to end the
prosecution of the Nazi criminals. ‘The educative impact of the trials is minimal’, he noted in an
Israeli newspaperafter the verdict was announced.
56
He was also disappointed by the German youth.
He had sided with the generation of 1968, sharing many of their ideas and being eager to maintain
contact with the young.But when the revolt against the ‘fathers’generation’ turned into violence,he
was alarmed. It was a serious strategic mistake, he argued, when ‘the protesters thought they could
bring about changes by teaching society to feel dread’.
57
Bauer also felt betrayed by young col-
leagues whom he had seen as his fellow combatants. Oneof the young prosecutors in the Auschwitz
trial left theorganisation and made good use ofthe knowledge acquired underBauer’s mentorship as
the defence counsel of Nazimurderers, in exchange for handsome remuneration.
58
Bauer’s relatio n-
ship with his closest young friend, Thomas Harlan, was also fraught with tension.
54. Fritz Baue r, ‘Eine Grenze der Tyrannenmacht. Pla¨doyer im Remer-Prozeb[1952]’ in Joachim Perels and Irmtrud
Wojak (eds), Fritz Bauer – Die Humanita
¨t der Rechtsordnung – Ausgewa
¨hlte Schriften (Campus Verlag, 1998)
169–179.
55. Blau, ‘Fritz Bauer’ (n 4) 364.
56. Steinke (n 22) 254.
57. Ibid 265.
58. Ibid 273.
280 New Journal of European Criminal Law 11(3)
Bauer died at the age of 65, disillusioned, lonely and under curious circumstances. It has been
rumoured that he might have committed suicide, and a recent expert opinion rekindled a suspicion
that he was murdered. According to the official expertise handed down right after his death, it was
cardiac insufficiency that put an end to his life. As noted in the obituary published in the Frank-
furter Allgemeine Zeitung ‘those who were close to him knew that he was burning inside and the
flames had consumed him’.
59
Perhaps, it was the desperate vision of the new republic collapsing
just like Weimar that sapped his vitality. But he was wrong. The Auschwitz trial marked a new era
in the history of the new republic. ‘The facts documented in the 900-page judgment cannot be
denied anymore. The depressing silence of the young Bundesrepublik has been broken and the
‘‘awakening 60s’’ have started’.
60
In 1995, the institute named after Bauer was established at Goethe University in Frankfurt,
where scholars research the history of the Holocaust and its effects. One decade after Bauer’s
passing, the German Parliament abolished the statute of limitations for murder. Starting from the
1990s, Bauer’s position on how to apply the 1871 Penal Code to crimes committed in the frame of
the terroristic Nazi regime, which had been rejected by the judges of the Auschwitz trial, was
adopted by the German judiciary. The courts ruled that desk murderers are also liable as principals
(and not just as abettors), just the same as the actual executioners. In the Demjanjuk case, the
Munich court held in 2011 that ‘those who were serving in the death camps knew that they were
part of a murderous machinery, and are liable for all the murders committed in the camp’.
61
Following this principle, the SS corporal Oskar Gro¨ning – who performed services at the platforms
where victims were selected to be killed in the gas chambers – was found guilty in 2015 for the
murder of 300,000 Hungarian Jews.
62
The judgments were handed down by members of the new
generation. They had clearly learned the lesson.
Declaration of conflicting interests
The author(s) declared no potential co nflicts of interest with respect to the re search, authorship, and/or
publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
ORCID iD
K´aroly B´ard https://orcid.org/0000-0002-6165-8987
59. Cited in Steinke (n 22) 273.
60. Ronen Steinke, ‘Fritz Bauer-ein deutscher Held’ Su¨ ddeutsche Zeitung (Munich 20 December 2013)
sueddeutsche.de/politik/jahre-frankfurter-auschwitz-prozess-fritz-bauer-ein-deutscher-held-1.1848015> accessed 12
April 2020.
61. LG Mu
¨nchen II, Urt. v. 12.5.2011 – 1 Ks 115 Js 12496/08 – Demjanjuk.
62. LG Lu¨ neburg, 15.07.2015 – 27 Ks 9/14, 27 Ks 1191 Js 98402/13 – Gro¨ ning.
B´
ard 281
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