Works by Fritz Bauer

Selected Writings.

The book is out of print.

“Bauer’s work is not only aimed at a specialised legal audience. His urban language is aimed at everyone. For him, law is potentially everyone’s business and not just that of an educated legal class. He hoped that young people in particular, students, to whom he often spoke, would be infected by a position of active humanism, which met with so much resistance in the judiciary and legal doctrine of the Adenauer era. Bauer’s writings contain treasures for the creation of a legal system with a human face.”

Source: From the introduction to the volume by Joachim Perels and Irmtrud Wojak, p. 33.

A contribution to the organisation of economic associations in Germany with comparative reference to the trust forms in the United States of America and Russia.

Fritz Bauer completed his doctorate in Heidelberg under Professor Karl Geiler. “An excellent work,” he wrote, which “rises above the average as far as its overall intellectual level is concerned. The author’s style alone and the way he knows how to formulate his thoughts demonstrate a pleasing mindset. But the content of the work is also based on a general intellectual education that goes beyond the realm of specialised science.” The title alone revealed that the subject matter was as complex as it was complicated. The doctoral certificate, issued on 14 February 1927 in Heidelberg, therefore also showed a “magna cum laude”.

In the foreword to the publication, Karl Geiler wrote: “I was particularly pleased to include the following work by one of my students in my series of publications. This is because its intellectual content rises considerably above the level of a normal doctoral thesis. At the same time, it is also clear proof of the fruitfulness of the commercial law method, without which it would be impossible to deal with such difficult modern legal problems as the trust problem. By combining sharp legal analysis and legal constructive theory with a clarification of the practical shaping of the law, including at the same time the public law, economic and economic sociological aspects of the problem and foreign law, the work expands into a fundamental work on the important economic form of trusts that promotes theory and practice in equal measure.” The Kartell-Rundschau of 1927 stated that the main value of the work lay “in the extraordinarily varied and detailed critical analysis […]. In any case, further academic treatment of cartel and trust issues will not be able to ignore this work.”

In the preceding motto, Fritz Bauer quoted the murdered former Foreign Minister Walther Rathenau, whose political and economic capacity would have been so bitterly needed for the establishment of the first German democracy. Bauer could have embarked on an academic career with his dissertation in 1926/27, but he decided otherwise: “I gave up my academic ambitions […] immediately after my assessor’s examination in favour of criminal justice and political activity,” he wrote to Max Horkheimer in 1937. He had been so deeply affected by the murder of Foreign Minister Rathenau that he later said he could still remember that he had contacted Kurt Schumacher, the head of the social democratic newspaper Schwäbische Tagwacht, immediately afterwards with “the inner urge to do something.”

Source: Irmtrud Wojak, Fritz Bauer 1903-1968. a biography. Munich: C. H. Beck 2009, p. 104ff.

During his short time in exile in Sweden (1943-1945), Fritz Bauer was elected to all the committees of the SPD’s exile organisation, wrote articles for magazines and also took part in discussions, but as in Denmark, he did not waste his time with the political intrigue that obviously flourished in Sweden. As far as his time allowed, he concentrated on new books. The work with which Bauer had begun in Denmark, the book on “money”, which he wanted to expand and revise, was published in Swedish as early as 1944: Pengar i går, i dag och i morgon – with a foreword by the Swedish trade union economics expert Richard Sterner. Sterner was a board member of the “Kleine Internationale”, where Bauer met him, and secretary of the Swedish Social Democrats’ commission that was to draw up the party’s post-war programme, making him an important interlocutor for Bauer, who continued to research post-war economic and legal problems. He described the book as an important contribution to our popular economic literature. Bauer’s concept of modern finance hoped for a final solution to all world economic problems after the war through the realisation of the Atlantic Charter.

Source: Irmtrud Wojak, Fritz Bauer 1903-1968. a biography. Munich: C. H. Beck 2009, p. 178.

A study by Fritz Bauer on the economic policy of the coming post-war period, written in exile in Sweden.

In exile in Sweden, Fritz Bauer continued to work on his book War Criminals on Trial, which dealt with questions of international law and the Allied war crimes trials. The book was published in Stockholm in 1944 and in Switzerland in 1945, but has not yet been published by a German publisher. The volume already contained all the topics that would occupy Bauer after his return to Germany (in 1949) until his death: The problems of an international criminal court and the question of how denazification could succeed, in other words, a serious legal punishment for National Socialist crimes.

As early as 1944, Fritz Bauer’s highly topical study on Krigs-Förbrytarna inför domstol, war criminals on trial, was also translated into Danish. And as far as the German situation was concerned, his urgent request that his book should soon be printed in German was realised that same summer of 1945 by the Zurich-based Europa-Verlag. The famous Swiss publisher Emil Oprecht rightly presented the work to the public on the inside flap of the dust jacket with the following announcement: “How the so-called ‘war criminals’ are to be punished, to whom exactly this designation is to be applied, and on the basis of which legal procedures the judgement can be made, this is one of the most burning problems facing the nations today”.

The Nuremberg trials had not yet begun, but Bauer had already justified the necessity and aim of the Allied trials in many respects. One main focus of his study was on the actual events, the crimes committed by the Nazi regime and its accomplices during the war. The key words here were: Crimes against the civilian population, occupation regime, devastation, hostage-taking, collective punishment, forced labour, deportation, “final solution to the Jewish question”. The culmination of the presentation and argumentation was reached in the chapters on guilt and punishment, with topical headings such as: “Crimes on higher orders”, “The master race’s ability to justify itself”, “No punishment without law”, “Guilt and punishment of the Quislings” in Norway and Denmark or “The aim of proceedings against war criminals”.

In all chapters, it became clear how precisely the author was aware of the actual conduct of the war, i.e. how he had utilised his opportunities and obtained information from Sweden, which had remained neutral. Finally, he quoted Friedrich Schiller, whose pupil he saw himself as throughout his life. In a fragment written in 1801, Schiller had called for German greatness to “fight for the freedom of reason” and thus “win the great process of time […]”. The actual conclusion of the book on war criminals on trial, however, was the sentence: “The German people need a lesson in international law”.

Source: Irmtrud Wojak, Fritz Bauer 1903-1968. a biography. Munich: C. H. Beck 2009, p. 191ff.

A lecture given by Fritz Bauer at the annual meeting of the Association for Young Offenders in Bad Nauheim.

In it, Bauer cites examples of self-administration by groups in Italy, the USA and the Soviet Union. He considers both self-administration, which tends to focus on an external task, and group therapy, which is intended to address the inner person, to be effective means of pedagogy, the aim of which should be to educate people to become social beings. The institutions, he emphasises, must find individual answers in each case.

“If this work had a scientific title, it would have to be criminology. Criminology is the science of crime and the fight against it,” Bauer introduced his work on the causes of crime and the defence of society. The aim of criminology – a realistic science, as Bauer found – was “to combat crime by investigating its roots and – within the bounds of what is humanly possible – by eliminating it”. This distinguishes it essentially from “Hegelian reasoning, which sees the punitive function of the state as a negation of the negation of law.”

In twenty-one chapters, Bauer presents the roots of criminal behaviour in his book, beginning with a chapter on “Causality or Free Will” and ending with one on “The Human Circle”, whereby he primarily analysed the results of American sociological studies, not least the great tragedies and novels that he knew well – above all Friedrich Schiller’s poetry. Ten chapters are devoted to the history of the fight against crime, its theories, legislation, misguided traditional thinking on guilt and atonement and the principle of resocialisation, to which Bauer attached particular importance. No criminal law, no trial and no penal system that set itself the goal of fighting crime through resocialisation could do without this idea of mutual help. For the jurist, the challenge lay in this idea of reciprocity, which presupposes starting points for social behaviour in people. “Criminological law is democratic, it takes the equality of all people seriously,” Bauer formulated, “and strives for a ‘we’ relationship, for an ‘I’ and ‘you’, for togetherness. It is co-civic and co-human.”

Bauer dedicated the last chapter of his book to the reform of the German penal code. He explained that not only a new, but a realistic criminal code was needed in Germany. He sharply criticised the conservative draft of the Criminal Law Commission, which had presented a draft at the end of 1956. It had missed the connection to the modern natural and social sciences and the circles of the International Movement for Social Defence, had instead suicidally plunged into the 150-year old and familiar “conceptual world of an idealistic Enlightenment”, represented a metaphysical concept of guilt and was “comparable to a hermaphroditic freak”, half sphinx, half lion. If the decision on measures against offenders remains in the hands of traditional courts, says Bauer, the training of lawyers dealing with crime must be reformed.

In this essay, Fritz Bauer unfolded the history of the right of resistance and the duty to resist from Roman law, through the Middle Ages and the confrontation of the medieval church with the Germanic right of resistance, to the Protestant discussion of the right of resistance, which for centuries stood “under the unfortunate star of German authoritarian thinking”. According to Bauer, it was only after the collapse of the Nazi state of injustice that “a Protestant reconsideration of the law and the limits of political violence in democracy and the totalitarian state” began. The discussion is in flux.

Bauer’s contribution was a plea for disobedience, for the “No to unlawful laws and orders, which is the only thing that matters as a rule.” According to Bauer, this ‘no’ was not ‘suffering obedience’, but passive resistance, which, like all active resistance, carried the risk of being fatal.” Subsequently, England and America became the “home of the right of resistance”, the Magna Charta and the American Constitution of 1775, with which the American states constituted human rights. On the European continent, however, developments went in the opposite direction. France committed itself to civil and human rights, but the Germans “did not make a revolution.” Fritz Bauer criticised the Germans’ devotion to the state, saying that the philosophers had “put an end to the right of resistance.”

The necessity of introducing a supervisory body in the Federal Republic of Germany

Attorney General Dr Bauer gave this lecture on 11 January 1964 at the Protestant Academy in Iserlohn on the occasion of a conference of the Artur Mahraun Society. Bauer took this opportunity to thank the criminal lawyer and criminologist from Denmark, Professor Stefan Hurwitz, who was present and who had succeeded in “uniting humanity and law in an exemplary manner” in criminology – he knew him from his exile in Denmark.

Bauer’s lecture focussed on the introduction of an ombudsman, which he advocated, who would exercise neither legislative nor executive power nor jurisdiction – in other words, a “fourth estate” whose background and problem was “the feeling of unease with the state”. The problem, according to Bauer, is the question of “how do people defend themselves against the bad state or the bad act of the state?” – and this problem is as old as the state itself. The ombudsman is a “striking embodiment of the democratic longing for controlled rule in our day and age.” He likes the comparison of the ombudsman to a dog that does not bark best: “Dogs that bark but do not bite are effective because they are there; the ombudsman speaks the liberating, clarifying word; he says what he considers to be right, expedient, good and humane. He should act like a cleansing thunderstorm. However, he himself does not create new legal relationships or correct existing ones. This is left to the other powers.”

Documents of the millennia.

In the year of the Auschwitz judgement, Fritz Bauer compiled an anthology of documents from two millennia for the Fischer Bücherei, which showed that the idea of resistance is as old as the history of mankind and humanity. One could say that the volume was the quintessence of his own library and world of thought, which he summarised here after the experience of the unjust state, persecution, concentration camp imprisonment and exile, and whose entire hope was based on the new Basic Law of 1949.

A brief introduction to the book states that the editor has compiled “records and documents from ancient Egypt and biblical Israel, from antiquity, the Middle Ages and modern times: the manifesto of the spiritual resistance fighter stands next to the appeal of the righteous indignant, the justification of the tyrant murderer next to the poet’s statement. These documents express the conviction that in our time there can be no resistance to the state’s usurpation of power and arbitrariness without democratic consciousness, and that there is no democratic reality without the right and duty to resist.” According to Bauer, the book should be understood “as a topos in which the myth of resistance finds expression, as an epic that makes people happy in their struggle for a better world.”

“Do Nazi Trials Serve Political Enlightenment?”

According to Bauer in the volume he co-edited, the question of whether Nazi trials serve political enlightenment assumes that “the criminal proceedings initiated for Nazi crimes have an instrumental character; they are understood as a means to an end, such as the purpose of raising political awareness.” The fact is, however, that the principle of legality applies in Germany and that the public prosecutor’s offices have to investigate if there is sufficient suspicion and are not allowed to make use of the case for utilitarian reasons. It sounds almost ironic when he added that even if the maxim of opportunity turned out to be “un-German”, the criminal proceedings are “an index of what is right according to the law and case law and thus at the same time an instruction manual for lawyers and laypeople on what may or may not be done in future, what should and should not be done by law.” In the area of unresolved issues such as the Nazi atrocities, he considered this to be “quite a useful thing”.

At the end of his contribution, Bauer formulated what he considered to be more important than retributive “compensation” through fixed-term or indefinite punishments with a quote from Albert Camus’ Plague: “(…) I say that there are whips and victims on this earth, and that one must try not to be on the side of the whips if possible. There should of course be a third group, that of the true doctors. But in fact you only meet a few, and it must be difficult. That’s why I’ve decided to side with the victims at all times, to minimise the damage. In the midst of the victims, I can at least seek how to reach the third group, i.e. peace among people. – When Tarrou finished, he dangled his legs and tapped one foot lightly on the terrace. After a moment of silence, the doctor straightened up a little and asked if Tarrou had any idea of the path to take to achieve peace. Yes, he disgusted Tarrou, the compassion.”

Frankfurt am MainText on the back cover: “This publication is based on a lecture by the Hessian Attorney General Dr Fritz Bauer on the roots of fascist and National Socialist activities, which he gave at the instigation of the Rhineland-Palatinate State Youth Council as part of a workshop on right-wing radicalism for representatives of the youth associations united in the Rhineland-Palatinate State Youth Council. The reproduction of the lecture, which was not distributed in bookshops and quickly sold out, and which was followed – in abridged form – by further private reprints, as well as publications in foreign newspapers, was taken – without significant changes – as the basis for the present publication, which has been adapted to the character of the res novae series.

The reason for this was that a new edition was suggested by various parties, especially from educational circles. The brochure published at the time by the Rhineland-Palatinate State Youth Council met with both approval and lively criticism. Fritz Bauer commented on the main objections in a letter dated 9 July 1962 to the Rhineland-Palatinate State Youth Council. This letter is attached to the reproduction of his presentation. The Landesjugendring Rheinland-Pfalz intended to make 2000 copies of its brochure available to the upper grades of secondary schools and the upper grades of vocational schools. However, the Ministry of Education and Cultural Affairs refused to distribute them. This refusal led to a major question from the SPD parliamentary group concerning the behaviour of the state government towards the Rhineland-Palatinate Youth Ring and a discussion in the Rhineland-Palatinate state parliament on 10 July 1962. Excerpts from the grounds for the major question, its answer by the Minister of Education, Dr Orth, and the subsequent debate in the state parliament are published here. A closing statement by Bauer, in which he discusses the participants in this debate, concludes the publication.”

EVA published a new edition of the volume in October 2016.

In the article, Fritz Bauer deals with the “Equation of morality and social ethics in current and projected law”, which prompted him to ask the provocative question: “Are really only lewd displays or means of preventing conception – to name a few of the paragraph headings – offences against ‘morality’, but not murder and manslaughter something in Auschwitz and Treblinka?”

After a “presentation of constitutional and neurotic sexual offenders”, the varieties of human behaviour, Bauer concluded his article with the question of what consequences can be drawn from this for humane criminal law and in particular sexual criminal law. He referred in particular to the American Law Institute ‘s model draft (1962) for a new criminal law and a commission set up by US President Lyndon B. Johnson to reform criminal law, which emphasised that legislators must “abandon the view that criminal law is a sure panacea for all ills in society”. Bauer thus criticised the draft of the German Criminal Law Commission of 1962, which had extended the provisions of criminal law instead of limiting them further.

According to Bauer’s plea, punishments should have a “medical character by contributing to the resocialisation of the offender and to the good of society.”

In his lifelong “search for justice”, according to an obituary by Günter Blau in the Monatsschrift für Kriminologie und Strafrechtsreform (51st Vol. 1968, H. 7/8), Fritz Bauer learnt that the goal was unattainable. In 1966, the Attorney General published his study on the ideas of law in the course of time. Here he explored the question of what justice actually is and used historical examples – the trial of Socrates, the trial of Jesus and the witch trials – to demonstrate the inadequacy of earthly justice.

Bauer’s interpretation of the Kafka story “The Penal Colony” was extremely sober, stating that there has always been horrific injustice in the name of “be just”. “Past things cannot be changed, but the present and the future can be shaped, because we all seek the right, the true right.” This could be described as a life maxim, or at least it was Bauer’s paraphrase for his tireless fight for freedom and human rights. For him, as he repeatedly emphasised, law and justice were distinct from ethics and morality. He found many people of the opinion that the barrel of morals and ethics was filled to the brim, “whereas the barrel of law and justice only contained part of the barrel of morals.” Those who hold this view, he said, regard justice and law as the “ethical minimum”. They argue, for example, that morality and ethics include the commandment to love one’s neighbour.

For Bauer, this was a view contrary to reason, as the commandment presupposes that everyone knows what is good and right, even for others. For him, this was based on a wishful thinking, a fixation “on the mere and pure intellectual capacity, the mere and pure emotional sensitivity and the mere and pure willpower” of everyone. In his view, the image of humanity that revolves around such a normal person already fails because of the colourful term “normal”, which can be a statistical term or a value concept of what the norm should be. “The ideal type of human being is without cause, just as causeless as God, he is free like him.”

Bauers looked away from the formal abilities of human beings (thinking, feeling, wanting) and wanted to focus on the differences, on the fact that “people think, feel and want differently” – because there is no such thing as a human being. He also saw individuality, which is influenced by many internal and external factors, as the causal determinant. It is true that pride, self-confidence and the idea of human prestige resisted the idea that we are objects, not just subjects. However, Bauer regarded the belief in everyone’s freedom as wishful thinking, which facilitates psychology, education and law, but cannot be our task. Divided into three chapters, “What is law?”, “The history of law and injustice” and “The present”, Bauer developed his view of law and justice in this book in contrast to morality and ethics, which are not quantitatively but qualitatively different from one another.

Contributions to the reform of criminal law.

Fritz Bauer saw the alternatives of a political criminal law in prevention, in social and educational policy, as well as in a final penalization of political law. He criticized a political pedagogy that saw its success in conveying a world view, which was not necessary as a promise. In Baur’s view, the pluralistic society itself provided such a world view with associated ethics.

For Bauer, the opportunity of democracy and the interests of the individual were identical and from this followed the “idea of co-determination in all areas of political, economic and social life”.

He formulated the same idea in a lecture held on March 6, 1968 at the Hochschulwoche für staatswissenschaftliche Fortbildung in Bad Nauheim (Zurich: Gehlen, 1968, offprint, 15 pages), which was published posthumously under the title “Alternatives to Political Criminal Law”. The lecture was a commitment to human rights, to political, ethical and religious tolerance, the right to freedom, equality and fraternity, which for Bauer followed from the diversity of human beings. In the lecture, the jurist addressed Otto Kirchheimer’s scientifically based skepticism (“Political Justice”) and explained that legal nihilism must stop short of the protection of human rights, which are not a borderline issue between “law and politics”.

The discussion of sexual criminal law could be based on the norms, the current law and legislation, on the reform proposals of the past and the legal-political debate or – as Fritz Bauer began his remarks on the causes of sexual offences – on the attempt to master the findings of the natural and social sciences. At the same time, he noted that the draft reform of 1962 showed little interest in the “nature of the matter” and ignored the deficient realities that it sought to eliminate through standards and paragraphs. The cause of most sexual offences is not that the perpetrator is “hypersexual” or follows an urge to “expand his sexual field of operation”, but rather a deficit: the failure or thwarting of human instincts and needs, of community, recognition, recognition and self-realisation through loving and being loved.

While other countries speak of sexual offences, according to Bauer, the 1962 draft for a new penal code still speaks of “offences against morality”, as did the penal code of 1871, whereby “morality” is understood to mean Christian moral theology, which is impartially equated with sexual taboos. Although moral indignation can be explained in religious terms, it cannot provide any justification and is not the task of an enlightened state, which is prohibited from “cheap speculation”. The state should not adopt diabolisms as its own, especially in sexual law. The jurist was ahead of his time when he stated: “Often enough, it is not even what is different that is persecuted, but what is one’s own that is seen in the other and crucified there. It becomes the scapegoat of one’s own temptations, one’s own daydreams and nightmares.”

If, on the other hand, “morality” were identified with the “ethical minimum”, Bauer wrote in 1968, there would be no objection to this, as this can be found in the Basic Law. The renunciation of interference and repression is “exemplified by respect for the private sphere, which in the sexual sphere directly affects the intimate sphere.” This is not an endorsement of libertinage, which in turn should not be criminalised. Bauer expressly emphasised that the Basic Law sees itself as a social constitutional state. This “means solidarity with all unfortunate people” and requires an attempt at resocialisation and self-restraint on the part of the criminal legislator, who, Bauer concluded his contribution with Goethe, “should he punish or spare, must see people as human beings”.