Fritz Hartung

Fritz Hartung (4 April 1884 - 14 May 1973) was a German jurist and influential advisor on law reform at the Justice Ministry during the 1920s. After the war he became more widely known as a commentator on criminal law and criminal process in the German Federal Republic (West Germany).

Biography Provenance and early years Fritz Hartung was born at Homberg, a small town in the hills south of Kassel. His father was a specialist teacher of the deaf and dumb. He attended school locally, passing his school final exams with high marks early in 1903 as a pupil at the Wilhelmsgymnasium (secondary school) in Kassel. Later that year he enrolled at the University of Marburg to study Classical Philology. After a term he switched to Jurisprudence.

War years War broke out in July 1914 and Hartung was conscripted back into the army less than a month later. He fought in the 20th Infantry Regiment, and saw action both on the "Western Front" and in the Serbia campaign. He evaluated critically the Goldschmidt/Schiffer draft of 1919/20, thereby triggering the Emminger amendments, and oversaw the implementation of these in Prussia. In effect, that meant that Hartung drafted what became the 1924 Prussian Arbitration Regulations. which extended the "mandatory atonement" requirement to six additional classes of offence. Fritz Hartung's interest in arbitration process is evident from the specialist monthly journal "Schiedsmannszeitung" (loosely, "Arbitration Newspaper"), of which he was the producer and principal contributor between 1926 and 1967. had served its purpose, Hartung immediately resigned his membership of the DDP, and in 1932 he also withdrew from membership of the "Republic Judges Association". By that time he had secured appointment, effective 1 December 1929, as an Associate Judge of the Supreme Court ("Reichsgerichtsrat").

During the Hitler years Hartung, as a member of the Third Criminal Senate, is seen as one of those responsible for case law in support of the government's infamous "Race Defilement" ("Rassenschande") doctrine. The court on a number of occasions interpreted the 1935 "Law for the Protection of German Blood and German Honour" in line with known National Socialist dogmas even where not required to do so by the wording of the law itself. For some of this period Fritz Hartung was himself deputy head of the Third Criminal Senate. In 1945, after the Nazi nightmare had been terminated by military defeat, Hartung nevertheless asserted that under Supreme Court President Erwin Bumke, the Third Criminal Senate could take some credit for having "prevented worse".

In a book published in 1971, a couple of years before his death, Hartung provided a lengthier lawyerly mitigation plea in respect of legal developments in Germany during the twelve National Socialist years: "...in terms of the justice system, and in particular when it came to criminal justice, the National Socialist régime ... delivered some progressive elements of a fundamental nature ..., improvements which endure to this day, and the removal of which from the criminal code is unthinkable".

In 1954 Hartung cited the tragic 1940 "Badewannenfall" ("Bath Tub Case"), in which he had presided, as an example of an ad hoc extended legal interpretation of the "subjektive Teilnahmelehre" (loosely, "subjective inducement to participate") doctrine, which he said he had applied in order to reverse a decision by a lower court whereby he was able to avoid imposing an otherwise mandatory death sentence on a young girl who had drowned her sister's new-born baby at the overwhelming insistence of the sister. (The "loophole" through which the Third Criminal Senate (court presided over by Fritz Hartung) had jumped came from the fact that the relevant law made a clear distinction between perpetrators and accomplices.) The participants in the act were to be differentiated between either (1) instigators or (2) helpers. But the law was silent on the precise difference between the two. By resorting to what other German judges would surely have viewed as unwarranted over-interpretation, the court under Hartung preserved the girl who had actually killed her terrified sister's new-born infant from the death penalty. Hartung, when recalling the case fourteen years later, held it out as classic case of the end justifying the means in the event of an extreme case. Despite a certain amount of ensuing confusion on the matter, a new panel subsequently confirmed the initial verdict as to his party membership.

In his own memoirs Hartung implicitly imputes the verdict that he had ever actually been a Nazi Party member to a misunderstanding, resulting from a propaganda article in the "Schiedsmannszeitung" ("Arbitration Newspaper") which carried his name due to an oversight. More recently the party membership lists, which initially seem to have been kept out of the public domain by the Soviet, American and British authorities, have been scrutinised by scholars, and it has been determined that in May 1937 Fritz Hartung did indeed join the Nazi Party, and served it at some stage it in a monitoring capacity as a "Blockleiter" (loosely, "locality supervisor" or sometimes, in common parlance, "snooper"). Hartung took issue with this approach, arguing in support of a traditionalist "pre-republic" view.

In 1950 he took a lead in founding the Association of [West] German Arbitrators ("Bund Deutscher Schiedsmänner und Schiedsfrauen"). The Association appointed him to its honorary presidency in 1952.