Hermann Weinkauff

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Hermann Weinkauff 1951

Hermann Karl August Weinkauff (born February 10, 1894 in Trippstadt , Pfalz , † July 9, 1981 in Heidelberg ) was a German lawyer . He mainly worked in various judge positions and was the first President of the Federal Court of Justice .

Life

Hermann Weinkauff attended grammar school in Speyer and then studied law in Munich , Heidelberg , Würzburg and Paris . In 1912 he became a member of the Corps Hubertia Munich .

He passed the first state law examination in 1920, the second in 1922. In the same year he was appointed court assessor in the State Ministry of Justice and worked there until 1923. From 1924 to 1926 he worked as a public prosecutor at the Munich Regional Court , then as a magistrate at the Labor Court Munich until 1928. From 1928 to 1929 he studied French law in Paris.

From 1930 to 1932 he was chief magistrate at the Berchtesgaden District Court , and from 1932 to 1937 director at the Munich I District Court . Weinkauff joined the Association of National Socialist German Jurists (BNSDJ) on February 1, 1934 , which in 1936 became part of the National Socialist Lawyers Association . In November 1934 he became a member of the National Socialist People's Welfare . From 1935 he was employed by the Reich Attorney General , temporarily with the Oberreichsanwalt Karl August Werner , and moved as 1st assistant judge at the Reichsgericht to Reichsgerichtspräsident Erwin Bumke in the III. Criminal Senate , which was also responsible for " racial disgrace" cases. On March 1, 1937, Weinkauff was promoted to the Reich Court Council, although he was not a member of the NSDAP . Bumke justified the promotion with the admission “... Your behavior also guarantees that you will always ruthlessly stand up for the National Socialist state. You have proven your Aryan descent [...]. "

In 2015 it became known that Weinkauff had participated in a revision judgment on the Blood Protection Act on September 2, 1936 , in which, as usual, five judges judged who was a “Jew” within the meaning of this law. As a result, the appeal of a man called a “Jew” was rejected, who had been sentenced by the Erfurt Regional Court to nine months in prison for a love affair with a woman called a “German”.

After the war he was interned in an American camp for several months. On April 1, he first took up a position as President of the newly opened Bamberg Regional Court , before becoming President of the Higher Regional Court from 1949 . In early October 1950, Federal President Theodor Heuss appointed him the first President of the Federal Court of Justice.

The University of Heidelberg awarded him an honorary doctorate in 1951 . He retired on March 1, 1960. He was subsequently awarded the Great Federal Cross of Merit with a star and shoulder ribbon and on May 9, 1961 with the Bavarian Order of Merit . Weinkauff wrote several books and articles in legal journals during his retirement. He died in Heidelberg at the age of 87.

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In his function as President of the Federal Court of Justice , Weinkauff made a name for himself , especially in 1953, when he sharply criticized a recently issued judgment of the Federal Constitutional Court , which had legal force ( § 31 BVerfGG ), and refused to follow the legal opinion of the Constitutional Court, a hitherto unique process in the Federal Republic of Germany. In this ruling, the Federal Constitutional Court had to decide on a constitutional complaint from 34 former Gestapo officials who, on the basis of the law regulating the legal relationships of persons falling under Article 131 of the Basic Law, asserted a right to be reinstated as a civil servant. The Federal Constitutional Court rejected the constitutional complaint and took the view that all civil servant relationships from the time of the Third Reich had expired on May 8, 1945. Accordingly, there is no entitlement to reinstatement. Weinkauff joined the protest of the lawyers, who mostly consisted of former National Socialists. Weinkauff dismissed the extensive illegal acts of the judges and civil servants listed by the Federal Constitutional Court as a mere "adornment" that would not have significantly influenced the actual work of the civil servants. In doing so, Weinkauff cited the peaks of German post-war law, which were largely identical to those of Nazi jurisprudence. Therefore, the Federal Constitutional Court opposed a different decision of the Great Civil Senate of the Federal Court of Justice BGHZ 13, 265 in a later judgment on Art. 131 GG, which these leading legal scholars of the post-war period had published during the Third Reich.

In his book The German Justice and National Socialism, Weinkauff advocates Gustav Radbruch's thesis that legal positivism made the German judiciary “defenseless” in the Third Reich against National Socialist injustice. Logically, Weinkauff instead represents the doctrine of a religious natural law , which he also tried to incorporate into the case law of the Federal Court of Justice.

The thesis of defenselessness is controversial. It says that the lawyers felt obliged to adhere to the legal positivist principle “law is law” and therefore did nothing against the laws of the National Socialists. Opponents of such theses emphasize that the judiciary was by no means a victim of National Socialism between 1933 and 1945, but that "judges and public prosecutors, administrative lawyers and law professors and (to a lesser extent) the legal profession were involved in the development of the ' Third Reich 'and abused the institution of the legal system for this [...] ", said Udo Reifner .

The historian Hans-Ulrich Wehler calls Weinkauff's remarks on the legal system under National Socialism a "difficult to bear apologetics ".

Works (selection)

  • The French judicial reform from 1926-1929 , in: Juristische Rundschau (JR) 1929, 221 ff.
  • Natural law from an evangelical perspective , in: Werner Maihofer (Ed.), Natural Law or Legal Positivism? , Darmstadt 1962, p. 211 ff.
  • Judgeship and legal finding in Germany , Tübingen 1952.
  • The military opposition to Hitler and the right of resistance , in: European publication eV (Ed.), Vollmacht des Gewissens. Problems of the military resistance against Hitler , vol. 1, Frankfurt am Main u. a. 1960, p. 152 ff.
  • Natural Law and the Great Judicial Reform. Thoughts on the basic questions of jurisprudence , in: Frankfurter Rundschau (FR) of April 6, 1960.
  • About the right of resistance. Lecture given to the legal study society in Karlsruhe [...] , Karlsruhe 1956.
  • The German Justice and National Socialism , Stuttgart 1968.

literature

  • Ralf Dreier (Ed.), Law and Justice in the Third Reich , Berlin 1989.
  • Friedrich Karl Kaul , History of the Imperial Court. 1933-1945 , Vol. 4, Glashütte im Taunus, 1971.
  • Ingo Müller , Terrible Jurists , Munich 1987.
  • Hubert Schorn, The Judge in the Third Reich , Frankfurt 1959.
  • Klaus-Detlev Godau-Schüttke, The Federal Court of Justice - Justice in Germany - , Berlin 2005.
  • Daniel Herbe, Hermann Weinkauff (1894-1981) - The first President of the Federal Court of Justice , contributions to the legal history of the 20th century, 55th volume, Mohr Siebeck Verlag Tübingen 2008, ISBN 316149461X .

Web links

Individual evidence

  1. ↑ Kösener Corpslisten 1960, 108/671.
  2. ^ Daniel Herbe: Hermann Weinkauff (1894-1981) - The First President of the Federal Court of Justice (Contributions to the Legal History of the 20th Century, Volume 55), Mohr Siebeck Verlag, Tübingen 2008, p. 49, note 192, ISBN 316149461X .
  3. ↑ a b Klaus-Detlev Godau-Schüttke: Blood and Robes , in: Die Zeit , September 17, 2015, p. 18
  4. ↑ BVerfG, judgment of December 17, 1953, Az. 1 BvR 147/52, BVerfGE 3, 58 - civil servant relationships.
  5. ↑ Volker Gerloff: Red robes against brown smell. The Federal Constitutional Court as "Guardian of the Constitution" against the brown swamp in the young Federal Republic of Germany Website of the working group of critical jurists at the Humboldt University in Berlin , accessed on August 21, 2018
  6. ↑ akj.rewi.hu-berlin.de: The changing times and the German judiciary . Retrieved November 28, 2013 .
  7. ↑ BVerfG, decision of February 19, 1957, Az. 1 BvR 357/5, BVerfGE 6, 132 - Gestapo.
  8. ^ Hans Peter Bull : Jurisdiction in the Nazi State , in: Die Zeit from September 20, 1968, accessed on November 28, 2013.
  9. ↑ Werner Sarstedt on Hermann Weinkauff: German Justice and National Socialism - Why We Failed , in Der Spiegel on December 23, 1968, accessed on November 28, 2018.
  10. ↑ koeblergerhard.de: Herbe.Daniel, Hermann Weinkauff . Retrieved November 28, 2013 .
  11. ↑ Werner Sarstedt on Hermann Weinkauff: German Justice and National Socialism - Why We Failed , in Der Spiegel on December 23, 1968, accessed on November 28, 2018.
  12. ↑ Udo Reifner: Lawyers in National Socialism. Critical remarks on the state of coming to terms with the past. In: ZRP , H. 1 (1982), pp. 13-19, here p. 18 f, quoted from Stephan Alexander Glienke: The dagger under the judge's robe. The processing of the Nazi justice in society, science and jurisprudence of the Federal Republic
  13. ^ Hans-Ulrich Wehler: German history of society. From the beginning of the First World War to the founding of the two German states 1914–1949 , CH Beck, Munich 2003, p. 1134, ISBN 3-4063-2264-6 .
personal data
SURNAME Weinkauff, Hermann
ALTERNATIVE NAMES Weinkauff, Hermann Karl August (full name)
BRIEF DESCRIPTION first President of the Federal Court of Justice
DATE OF BIRTH February 10, 1894
PLACE OF BIRTH Trippstadt , Palatinate
DATE OF DEATH July 9, 1981
Place of death Heidelberg