Erich Schwinge

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Erich Schwinge (c.1942)

Erich Schwinge (born January 15, 1903 in Jena , † April 30, 1994 in Marburg ) was a German military lawyer. In 1931 he became a professor of law and from 1936 onwards he wrote the legal commentary on German military criminal law, which was authoritative during the National Socialist era . In the Federal Republic of Germany he again received a professorship in law and was a sought-after defense expert in criminal proceedings against Nazi perpetrators . In his 1977 work on Nazi military justice (1933–1945), which was long regarded as a historical standard work on the subject, he described it as an "anti -Nazi enclave of the rule of law " against the facts known today . In doing so, he influenced German case law, for example on compensation claims for victims of Nazi military justice , until 1995.

education

Rocker visited the secondary school in Jena and studied 1921-1924 jurisprudence at the University of Jena , Humboldt University of Berlin and Ludwig Maximilian University of Munich . He then completed his legal clerkship in Jena, Weimar , Camburg , Berlin and Hamburg . He received his doctorate in 1926 and completed his habilitation in 1930 at the Rheinische Friedrich-Wilhelms-Universität Bonn for criminal law , criminal procedural law , civil procedural law and legal philosophy . In 1931 and 1932 he was initially a substitute professor at the University of Kiel . From 1932 he worked as a professor at the University of Halle .

time of the nationalsocialism

As early as 1930, Schwinge represented legal ideas that were in line with National Socialism and which they later implemented. So he pushed the method of interpreting legal norms according to the meaning and purpose of the regulations ( teleological interpretation ) in criminal law to the extreme.

In 1933 he joined the Association of National Socialist German Lawyers . Just a few months after the seizure of power by the Nazis, he called for a replacement of his opinion to "mild" and "indulgent" Criminal Justice of the Weimar Republic through a possible "authoritative" criminal justice. Finally, he questioned the prohibition of analogy even before the legislature abolished it with the amendment to the Criminal Code of June 28, 1935.

In 1936, Schwinge was appointed to a chair at the University of Marburg . He dealt with the military penal code for the German Reich (MStGB). This was in force until 1945 and has been amended several times. In the Second World War in particular , many of the punishments provided for in it were tightened. Schwinge wrote a legal commentary on this military penal code , which was subject to six editions by 1944 and was the then authoritative, in practice much used interpretation aid for around 3,000 military power funnels.

Among other things, he propagated " male discipline ", that is, the unconditional recognition of military obedience and the fulfillment of military duties in the sense of National Socialism, as the top priority. This must absolutely uphold the jurisprudence in order to guarantee the internal cohesion of the troops and thus the effectiveness of the Wehrmacht. Accordingly, he called for the death penalty for “destroying the military”, for example through desertion , for general prevention regardless of the examination of the individual motives, i.e. even if mitigating circumstances could exist. These demands were met by the “ Special War Criminal Law Ordinance ” that the Nazi regime issued at the end of August 1939 shortly before the start of the German attack on Poland . In November 1939, the range of penalties for violations of “male discipline” was tightened again to the effect that any offense assessed in this way could be punished with the death penalty at the discretion of the courts. Schwinge welcomed this tightening in the following new edition of his legal commentary because it made it possible "in each individual case ... to the death penalty".

From 1937 to 1939 Schwinge was dean of the law faculty at Marburg University. In 1940 he moved to the University of Vienna . Together with his Marburg colleague Leopold Zimmerl, he criticized the criminal law doctrine of the two Kiel professors Georg Dahm and Friedrich Schaffstein . He accused them of representing criminal irrationalism. This dispute arose above all from the concept of legal interest , which was rejected by the members of the Kiel School as incompatible with National Socialism. Schwinge himself stuck to the concept of legal interests and had already developed a National Socialist doctrine of legal interests in 1933: legal interests were to be interpreted in accordance with the prevailing doctrine of National Socialism. In doing so he claimed to oppose the teaching of the Kiel School with a more scientific method. He was a permanent employee of the magazine for military law published by Heinrich Dietz .

In 1941 Erich Schwinge was first a public prosecutor , then a military judge at Division 117 in Vienna . He applied for the death penalty against at least ten forcibly recruited Germans who wanted to avoid military service for various reasons. In at least eight cases he himself passed death sentences, even when a lighter sentence would have been possible. The case of the then seventeen year old Anton Reschny met with particular criticism after 1945. As a member of the Wehrmacht who had not yet been instructed about his duties, he had taken a wallet and two wristwatches while cleaning up. He was then charged with theft taking advantage of the war (Section 242 of the Reich Criminal Code , Section 4 of the Ordinance Against Public Pests ), for which a prison sentence of up to 10 years was provided. However, Schwinge applied the provisions of the Military Criminal Code on looting . The court sentenced Reshny to death on this basis. However, the death penalty was not carried out.

From 1945

In 1945 Schwinge was taken prisoner of war. His writings soldierly obedience and responsibility (Elwert, Marburg 1939), The development of the discipline in the German, British and French armed forces since 1914 (Schweitzer, Berlin 1941) and Military Criminal Code (Junker u. Dünnhaupt, Berlin 1943) were in the Soviet occupation zone on the list of literature to be discarded is set.

Schwinge was expelled from Austria after his release from captivity, and his professorship at the University of Vienna was terminated. However, in 1948 he was appointed professor at the University of Marburg, where he served as dean of the law faculty for twenty years, and in 1954/1955 also as rector of the university. He also represented former members of the Wehrmacht and the Waffen SS in around 150 criminal cases .

He was politically active in the FDP and was temporarily a member of the FDP state executive in Hesse and a candidate for the Bundestag .

Between 1962 and 1972, Schwinge published a collection called “Famous Criminal Trials ” under the pseudonym Maximillian Jacta , which was translated several times. The work is assigned to the literary genre of the Pitavale . It made Schwinge known beyond the Federal Republic. The pseudonym was chosen in order to be able to market the work internationally, as the publisher saw the name Erich Schwinge as too strange in other language areas.

With his work Praxis des Revisionsrechts (1960), Schwinge had an influence on case law in the Federal Republic of Germany. In the 1960s he tried to have student criticism of him prohibited. After a student newspaper published a critical article about his role in the Nazi judiciary and how it was dealt with in 1964, he prohibited its distribution and unsuccessfully initiated disciplinary proceedings against those responsible. He tried to prevent the distribution of a reader published by the AStA with uncommented quotes from Schwinge with an injunction . This approach received considerable press coverage.

In the 1970s, together with Otto Schweling , Schwinge wrote the first comprehensive historical work on military justice during the Nazi era (published in 1977), which was long regarded as a standard work. In it he claimed that the German military jurisdiction was largely independent of the Nazi regime and that it was within the framework of the law. Her many harsh judgments were necessary to maintain morale in the Wehrmacht. The Allies also had a comparable jurisdiction with similar severity. The judgments of the German military courts of the Nazi era should therefore be recognized as legal. These theses were criticized as early as the 1950s, but were long ruling opinion . The Federal Social Court followed this view until 1985. It only gave up the relevant jurisprudence expressly with a judgment of September 11, 1991 and from then on assumed the presumed unjust character of the judgments that the German military courts had passed during the Nazi era.

In the trial of Hans Filbinger against Rolf Hochhuth (February to July 1978) Schwinge wrote in a legal opinion: The case of the sailor Walter Gröger , for whom Filbinger had applied for the death penalty for deserting abroad and had later carried out, could not be legally or morally charged (see Filbinger affair ).

Schwinge's and Schweling's account of military justice during the Nazi era was refuted in 1987 by new historical research by the military historians Manfred Messerschmidt and Fritz Wüllner, and from then on criticized as scientifically untenable apologetics and serious injustice trivializing whitewashing.

Publications (selection)

  • Military Criminal Code. Explained by Erich Schwinge. 374 pages, Junker and Dünnhaupt , Berlin 1936. Overall title: Comments on German Reich Law - Vol. 1. In 1939 a second revised edition with 448 pages appeared, in 1940 a third revised edition with 488 pages, in 1940 an unprocessed 4th edition with a supplement (509 pages in total).
    • Military Criminal Code and Special War Criminal Law Ordinance was the title of the 5th revised edition of the Military Criminal Code , also Junker + Dünnhaupt, Berlin 1943, with 446 pages.
  • Irrationalism and the holistic view in German jurisprudence . Röhrscheid Bonn 1968
  • Soldier obedience and responsibility . 2nd edition, Elwert'sche Verlagsbuchhandlung, Marburg 1939. Series title: Marburger Universitätsreden, No. 1
  • The development of male breeding in the German, British and French Wehrmacht since 1914 . Schweitzer Verlag, Berlin 1940. Several editions appeared.
  • Erich Schwinge, Otto Schweling: The German military justice in the time of National Socialism. 1st edition: Marburg 1977, ISBN 3-7708-0590-9 ; 2nd edition: Elwert-Verlag, Marburg 1978, ISBN 3-7708-0619-0
  • Balance of the war generation . Elwert, Marburg 1979, (14th edition 1988, 38th – 40th Tds.)
  • The statesman. Demand and Reality in Politics . Universitas, Munich 1983
  • Falsification and truth. The picture of the Wehrmacht jurisdiction , published in the right-wing extremist Hohenrain-Verlag , Tübingen-Zurich-Paris 1988.

As co-editor:

  • Souvenir for Max Grünhut (1893–1964) . Edited by Hilde Kaufmann , Erich Schwinge a. Hans Welzel et al. a., Elwert, Marburg 1965. Subtitle: Max Grünhut. With bibliography M. Grünhut (pp. 231–235).

literature

  • Detlef Garbe : The Marburg military lawyer Prof. Erich Schwinge - commentator, enforcer and apologist for National Socialist martial law . In Albrecht Kirschner (ed.): Deserters, disruptors of military strength and their judges. Marburg interim balance sheet on Nazi military justice before and after 1945 . Published on behalf of the Marburg History Workshop. Publications of the Historical Commission, Volume 74, Marburg 2010, ISBN 978-3-942225-10-6 .
  • Detlef Garbe: "In each individual case ... up to the death penalty". The military criminal lawyer Erich Schwinge: A German legal life. Hamburg Foundation for Social History , Hamburg 1989, ISBN 3-927106-00-3 .
  • Ernst Klee : The dictionary of persons on the Third Reich. Who was what before and after 1945? 2nd Edition. S. Fischer, Frankfurt am Main 2005, ISBN 3-596-16048-0 .
  • Ingo Müller : Terrible lawyers. The unresolved past of our judiciary. Kindler, Munich 1989, ISBN 3-463-40038-3 .
  • Joachim Perels , Wolfram Wette (Ed.): With a clear conscience. Military power judges in the Federal Republic and their victims . Berlin 2011, ISBN 978-3-351-02740-7 .
  • Stefan Chr. Saar: Erich Schwinge (1903–1994). In: Eckart Klein et al. (Ed.): Between the rule of law and dictatorship. German lawyers in the 20th century (= legal history series. Bd. 326). Lang, Frankfurt am Main 2006, ISBN 3-631-54716-1 , pp. 105-129.
  • Ursula Schwinge-Stumpf (Ed.): Erich Schwinge. A legal life in the twentieth century. Autobiography. Societäts-Verlag, Frankfurt am Main 1997, ISBN 3-7973-0654-7 .
  • Fritz Wüllner: The Nazi military justice and the misery of historiography. A basic research report. Nomos, Baden-Baden 1991, ISBN 3-7890-1833-3 .
  • Fritz Wüllner, Manfred Messerschmidt: The Wehrmacht Justice in the Service of National Socialism. Destroying a legend. Nomos, Baden-Baden 1987, ISBN 3-7890-1466-4 .

Web links

Individual evidence

  1. ↑ Erich Schwinge: Teleological concept formation in criminal law , Bonn 1930
  2. ↑ Kurt Fricke: The red ox in Halle from 1933 to 1989 , in: Werner Freitag / Katrin Minner (ed.): History of the city of Halle. Vol. 2: Halle in the 19th and 20th centuries , Mitteldeutscher Verlag, Halle an der Saale 2006, ISBN 3-89812-383-9 , p. 127
  3. ↑ Volker Ullrich: "I pushed myself out ..." The lot of tens of thousands of German deserters in World War II , in: Wolfram Wette (Ed.): Deserteure der Wehrmacht , plain text, 1st edition 1995, p. 110
  4. ↑ Erich Schwinge: Irrationalism and the holistic view in German jurisprudence . Bonn 1938.
  5. ↑ Erich Schwinge: The current situation of criminal justice , Halle 1933, p. 22
  6. ↑ Otto Gritschneder: Compensation for the widows of executed conscripts. In: Wolfram Wette (Ed.): Deserteure der Wehrmacht , clear text, 1st edition 1995, p. 255
  7. ↑ Example: Tobias Walkling: Deterrence is necessary. In: Ohne Uns - magazine for total conscientious objection , issue 5/93 ; Stephan Baier: "The death sentence of the court martial Dr. Schwinge " KJ 1988, p. 340 ( PDF ).
  8. ↑ Ingo Müller: Furchtbare Juristen , Knaur 1989, ISBN 3-426-03960-5 , p. 192
  9. ↑ [1] ; [2] ; [3]
  10. ↑ Günter Spendel : Foreword to Maximilian Jacta, Famous Criminal Trials , Approved Special Edition. Orbis Verlag, Munich 2001, ISBN 3-572-01242-2
  11. ↑ Ernst J. Cohen: Scholar in times of confusion. In: Hans Ulrich Evers, Karl Heinrich Friauf , Ernst Walter Hanack, Rudolf Reinhardt (Hrsg.): Personality in Democracy - Festschrift for Erich Schwinge on his 70th birthday. Cologne / Bonn 1973, ISBN 3-7756-7700-3 , p. 5
  12. ^ FSI Jura Erlangen: Hitler's compliant helpers - terrible jurists before and after 1945
  13. ↑ see # publications (selection)
  14. ↑ See last BSozG NJW 1985, 1109
  15. ↑ BSozG NJW 1992, et seq .; 934 critical of the judgment: Erich Schwinge, NJW 1993, 368; ders., Wehrmacht jurisdiction a terror justice? Thoughts on a judgment of the Federal Social Court , series of publications by the Ring of German Soldiers' Associations, Volume 3; positive on the judgment: Otto Gritschneder, NJW 1993, 369.
  16. ↑ Horst Bieber, Joachim Holtz, Joachim Schilde, Hans Schueler, Theo Sommer (Die Zeit, May 12, 1978): Shoot, Sargen, Abtransportieren
  17. ^ Heinrich Senfft: Judges and other citizens. 150 Years of Political Justice and New German Rule Policy , Nördlingen 1988, p. 37
  18. ↑ see #Literature. On the development: Frithjof Harms Päuser: The rehabilitation of deserters of the German Wehrmacht from historical, legal and political points of view with commentary on the law to repeal wrongful National Socialist judgments (NS-AufhG of May 28, 1998) (Diss. Munich 2000) ( Memento of November 14 2012 in the Internet Archive ); Marcus Stortz: “While young men and old men rush to the flags, he is deserting.” Deserters, German Wehrmacht justice and the never-ending story of rehabilitation. in: forum historiae iuris, June 30, 2002 ( Memento of February 9, 2012 in the Internet Archive )
  19. ↑ Klaus-Detlev Godau-Schüttke: From denazification to renazification of the judiciary in West Germany , in forum historiae iuris (June 6, 2001), paragraph 50
  20. ↑ Bernd Rüthers: Beautified Stories - Beautified Biographies. Socialization cohorts in Wendel literature. An essay. Tübingen 2001, ISBN 3-16-147651-4 , p. 92
personal data
SURNAME Swing, Erich
ALTERNATIVE NAMES Jacta, Maximilian
BRIEF DESCRIPTION German lawyer and university professor
DATE OF BIRTH January 15, 1903
PLACE OF BIRTH Jena
DATE OF DEATH April 30, 1994
Place of death Marburg