Resistance to Tyranny: Treason, Right or Duty?

• Published date: 01 September 1960
• Date: 01 September 1960
• DOI: 10.1177/106591296001300302
• Subject Matter: Articles

RESISTANCE TO TYRANNY: TREASON, RIGHT OR DUTY?
GUENTER LEWY
Smith College
N
MAY 3, 1951, Otto Ernst Remer, second chairman of the Socialist
~
Reich party, publicly denounced the organizers of the attempt on Hitler’s
life on July 20, 1944, as betrayers of their country and in the pay of Ger-
many’s enemies. &dquo;You can rest assured,&dquo; he told a gathering of about one thou-
sand of his followers in Braunschweig, &dquo;that some day these traitors will be made
to render account before a German court.&dquo; Less than a year later Remer him-
self was on trial for having insulted the resisters of the twentieth of July and
slandered the memory of those who had perished in the unsuccessful uprising.
On March 15, 1952, Remer was found guilty of the charges and sentenced to
three months’ imprisonment.’
The legal proceedings against Remer attracted considerable attention all
over Germany. There were probably many who shared the sentiments expressed
by the Neo-Nazi. Others welcomed the chance of once and for all clearing the
good name and patriotic motives of the resisters. Since the accused tried to de-
fend himself by arguing for the truth of the allegations in question, the prosecu-
tion devoted most of its attention to the legal and moral justification of resistance
to the Nazi regime. One Catholic and two Protestant theologians as well as two
historians were called to the witness stand to give expert testimony on the prob-
lem of the right of resistance to tyranny. As a result the trial assumed the char-
acter of a scholarly debate with prosecution and defense vying with each other
in display of erudition and philosophical sophistication.
The court in its verdict accepted the opinion of the prosecutor that the
Third Reich represented a state devoid of justice (Unrechtsstaat), but it refused
to deny the Nazi regime all lawful status. The Third Reich in suppressing
all political opposition and persecuting and exterminating millions of Jews
had been clearly unjust, yet this did not decide the question of its &dquo;constitutional
legality.&dquo; 2 Thus, in effect, the court rejected the prosecutor’s contention that
resistance to Hitler’s Unrechtsstaat could not possibly have been illegal and that
everyone in Germany had been entitled to self-defense against a state daily com-
mitting ten thousands of murders.3
3
The resisters were cleared of Remer’s ac-
cusation of high treason on narrower grounds. The decisive question, declared
the verdict, was the motives and intentions of the conspirators. For section 88 of
the Criminal Code (1944 version) stated specifically: &dquo;Treason within the mean-
ing of this paragraph is committed by him who, with the aim of jeopardizing
the well-being of the Reich, permits the passing of secrets of state to another per-
son.&dquo; In a formal sense the plotters had committeed high treason by taking up
contact with Germany’s enemies. Yet, this had been done not in order to harm
1
Herbert Kraus (ed.), Die im Braunschweiger Remerprozess erstatteten moraltheologischen und
historischen Gutachten nebst Urteil (Hamburg, 1953) p. 105.
2

Ibid
.,
p. 123.
3
The plaidoyer of the prosecutor Fritz Bauer is reproduced in the periodical Geist und Tat,
VII (1952), 194-200.
581

---

582
their country but to serve it. At a time when the war for Germany was already
definitely lost, the resistance had tried to overthrow the Nazi regime and to fur-
ther their design they had sought the support of the West. They had done all
this for the sake of &dquo;the preservation of the German people and state in freedom
and independence.&dquo; Hence, it was impossible to reproach these men with the
charge of high treason.4 The conviction for treason of many of the conspirators
by the People’s Court (Volksgerichtshof ) in 1944 was dismissed as irrelevant on
the ground that the question of pay by a foreign power had not arisen in those
proceedings. Moreover, a sentence based exclusively on opposition to the Nazi
regime could no longer be considered binding. It was &dquo;irreconcilable with the
legal thinking of today.&dquo; 5
A
summary account of the highlights of the by now rather famous Remer-
profess cannot possibly reproduce the emotionally charged atmosphere of the
proceedings. In a sense, the trial at Braunschweig involved not so much the fate
of the accused Remer as it concerned the future of democracy in Germany. The
attempted assassination of Hilter, everyone realized, could become the basis of
a new stab-in-the-back legend or it might serve as a rallying point for those
Germans determined to prevent the recurrence of another meek surrender to
tyranny. The recognition of the importance of the issues raised by the Remer
trial in 1952 led to the formation of a group of officers, jurists, professors and
theologians which, under the name Europctische Publikation, dedicated itself to
the study of the military opposition and to the exploration of the theoretical
problem of a right of resistance.6
6
The members of this circle approach the question of the legitimacy of re-
sistance from somewhat different angles, but all are agreed upon the acuteness
of the problem for Germany, especially its Eastern part under Communist rule.
&dquo;We should beware,&dquo; writes one of the study group, &dquo;of for the second time fac-
ing unpreparedly a situation which will demand grave decisions....&dquo; 7 They are
also fairly unanimous in their praise of the military opposition. These men &dquo;were
the noblest of the nation. Even in going down in defeat they saved the honor of
the German name. We owe to their memory that we recognize and affirm the
justice of their action. They were not breakers but executors of right [Recht] .&dquo; 8
Opinions differ when it comes to the task of formulating a theory of resistance.
Karl August Weinkauff, president of the Federal Supreme Court at Karls-
ruhe, bases his argument for a right of resistance on an intuitively perceived
natural law. &dquo;The natural sense of feeling tells everybody with unmistakable
4
Kraus, op. cit., pp. 129-31.
5

Ibid
.,
pp. 132-33.
6
The group was founded upon the suggestion of Major-General (ret.) Hermann von Witzleben,
a cousin of Field-marshal Erwin von Witzleben executed on August 8, 1944. The first
publication of the group appeared in 1956 under the title Die Vollmacht des Gewissens
(Munich, Verlag Hermann Rinn). The members contributing to this volume are the jurist
Hermann Weinkauff, the Jesuit writer Max Pribilla, the Lutheran clergyman Walter Kün-
neth, the historians Helmut Krausnick and Georg Stadtmüller, and the journalist and editor
Kurt Sendtner.
7
Hermann Weinkauff, Über
das Widerstandsrecht (Karlsruhe, 1956), p. 3.
8

Ibid
.,
p. 20.

---

583
certainty, that what was done here by the [Nazi] government was the gravest in-
justice and that there must exist a lawful [rechtliche] possibility to resist and
eliminate such a government.&dquo; 9 Every impartial and unbiased person, follow-
ing the dictates of his reason and conscience, will grasp the broad outlines of
this higher law from which are derived the basic rights so consistently violated
by the Nazi state. Every human being, by virtue of his being human, is entitled
to claim the rights to life, liberty, conscience, dignity, self-determination, individu-
ality and property. The state may limit these rights only temporarily and ex-
ceptionally, in case of urgent necessity, and even then only in the form of a gen-
eral law. The state may not deprive kulaks and Jews of the protection of the law
and exterminate them, for they are members of the human race and thus entitled
to all the rights which this membership confers.&dquo;
If a government violates the rights of man, resistance is justified. Obedience
to the commands of the state is always conditional, i.e., it lasts as long as the
state maintains justice and serves the common good. A government which acts
unjustly may be opposed by any and all citizens except when the positive law
provides remedies for the unjust exercise of political power. If there exists a su-
preme court exercising judicial review or if the head of the government is respon-
sible to a parliament, then the individual citizen may not act. These conditions,
of course, no longer prevail in the modem totalitarian state and in such a case
every private individual may resist.&dquo; This resistance should merely be guided by
certain considerations. While it is certainly lawful to violate positive law in
order to restore life under a more comprehensive higher law, care should be
taken to employ only those means which promise success with a minimum in-
fringement of ordinary legality. Thus, if a dictator can be checked by threats, he
may not be deposed or killed. However, if no other method seems applicable,
the killing of a tyrant is allowed. Such a deed will &dquo;not have the legal character
of murder but rather that of the lawful execution of a criminal.&dquo; ~2
A
far more cautious and qualified acceptance of the right of resistance can
be found in the writings of the Lutheran theologian Walter K3nneth, another
member of the Europdische Publikation. His point of departure is Luther’s dis-
tinction of the two realms -
the inner and the outer. Hence, the Christian com-
munity as such cannot participate in or even encourage a revolution against the
legal order. &dquo;This would lead to the typical intermixture of the two realms
amidst a hopeless politicizing of the church.&dquo; 13 The Christian cannot accept the
9
Ibid., p. 13.
10

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