Franz Gurtner

Biography

Gurtner was born in Regensburg, the son of a locomotive engineer. After secondary school in Regensburg, he attended the University of Munich where he studied law. During World War I, he served on the western front and in Palestine, receiving the Iron Cross (first and second class).

After the war, Gurtner pursued a successful legal career, being appointed Bavarian Minister of Justice on 8 November 1922, a position he held until his nomination by Franz von Papen as Reich Minister of Justice on 2 June 1932. A member of the German National People's Party, Gurtner was sympathetic to right-wing extremists such as Hitler. During the 1924 Beer Hall Putsch trial, Hitler was allowed to interrupt the proceedings as often as he wished, to cross-examine witnesses at will, and to speak on his own behalf at almost any length. Gurtner obtained Hitler's early release from Landsberg Prison, and later persuaded the Bavarian government to legalize the banned NSDAP, and allow Hitler to speak again in public.

After serving as Minister of Justice in the cabinets of Papen and Kurt von Schleicher, Gurtner was retained by Hitler in his post, and made responsible for coordinating jurisprudence in the Third Reich. Though a bureaucrat of the old school and a non-Nazi conservative, Gurtner nonetheless merged the association of the German judges with the new National Socialist Lawyers Association, and provided a veil of constitutional legality for the Nazi State.

At first, Gurtner also tried to protect the independence of the judiciary and at least a facade of legal norms. The ill-treatment of prisoners at concentration camps in Wuppertal, Bredow and Hohnstein (Saxony), under the jurisdiction of local SA leaders, provoked a sharp protest from the Ministry of Justice. Gurtner observed that prisoners were being beaten to the point of unconsciousness with whips and blunt instruments, commenting that such treatment

"reveals a brutality and cruelty in the perpetrators which are totally alien to German sentiment and feeling. Such cruelty, reminiscent of oriental sadism cannot be explained or excused by militant bitterness however great."

The protest proved to be in vain, for Hitler pardoned all those SA leaders and camp guards who were sentenced in the Hohnstein trial. Gurtner also complained about confessions obtained by the Gestapo under torture, but this practice, too, was upheld by Hitler.

In 1933, Gurtner came into conflict with one of his subordinates, Roland Freisler, over the issues of Rassenschande, or sexual relationship between an Aryan and a non-Aryan, which Freisler wanted immediately criminalized. Gurtner, in a meeting, pointed out many practical difficulties with Freisler's proposal. This did not, however, stop the passing of the Nuremberg Laws two years later, criminalizing it.

Despite these initial efforts to limit the brutality of the Nazi regime, Gurtner also played a role in legitimizing it. In the weeks following the Night of the Long Knives, a purge of SA officers and conservative critics of the regime that resulted in perhaps hundreds of executions, he demonstrated his loyalty to the Nazi regime by writing a law that added a legal veneer to the purge. Signed into law by both Hitler and Minister of the Interior Wilhelm Frick, the "Law Regarding Measures of State Self-Defense" retrospectively legalized the murders committed during the purge. Gurtner even quashed some initial efforts by local prosecutors to take legal action against those who carried out the murders.

Gurtner thus varied his role as Justice Minister by alternately protecting the regime and protesting against it. By the end of 1935, it was already apparent that neither Gurtner nor Frick would be able to impose limitations on the power of the Gestapo, or control the SS camps where thousands of detainees were being held without judicial review. During World War II, the feeble resistance of the Ministry of Justice was weakened still further, as alleged criminals were increasingly dealt with by the Gestapo and SA, without recourse to any court of law.

Instead of resigning, Gurtner stayed on, even going as far as joining the Nazi Party in 1937. He found himself providing official sanction and legal grounds for a series of criminal actions, beginning with the institution of Standegerichte (drumhead courts-martial) that tried Poles and Jews in the occupied eastern territories, and later for decrees that opened the way for implementing the Final Solution. A district judge and member of the Confessing Church, Lothar Kreyssig, wrote to Gurtner protesting (correctly) that the T4 program was illegal (since no law or formal decree from Hitler had authorised it); Gurtner promptly dismissed Kreyssig from his post, telling him, "If you cannot recognise the will of the Fuhrer as a source of law, then you cannot remain a judge."

Gurtner died on 29 January 1941 in Berlin.