Hyman: People must stand up to injustice, not ignore it

Hyman: People must stand up to injustice, not ignore it



April 18, 2012

By Michael B. HymanSpecial to the Law Bulletin

Judge Michael B. Hyman, a former president of The Chicago Bar Association, sits in the General Chancery Division of Cook County Circuit Court. He is the president of the Jewish Judges Association of Illinois.

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The utter failure of Nazi Germany's judges and lawyers to rebuke an evil regime and evil laws serves as a harsh reminder, especially on Holocaust Remembrance Day, of the incalculable consequences whenever the legal profession abandons its duty to defy injustices. This year Holocaust Remembrance Day begins this evening.

A usual justification for the blatant cowardice and complicity of the German legal profession is that their lives and livelihoods would have been endangered, if not ruined or worse. (Another, of course, is blatant anti-Semitism.) Regardless, even if overt defiance was risky, the stagnant apathy by a profession that supposedly cherishes fairness, truth, and protecting individual rights eludes understanding. Then again, the Holocaust itself eludes conventional explanation, let alone understanding.

"Defying Hitler," written in the 1930s, is the autobiographical account of a law student with a social conscience who conceals his anti-Nazi sentiments. The author, Sebastian Haffner, remains silent while witnessing the exclusion of Jewish judges and lawyers from the courts and the gradual dehumanization of German Jews.

Particularly chilling is his observation of his own impassiveness and that of the legal community. Haffner's words confront us: "Few things are more ridiculous than the calm, remote manner in which I, and others like me, observed the events around us, as if we were spectators at the theater."

Although the Holocaust is unique; today, still, terror and madness and atrocity stalk the world. Not a day passes without another mother losing her child to violence; without another example of racism, xenophobia or extremism in our workplaces, neighborhoods and cities; without another threat to somebody's civil liberties.

Are we, for whom fairness, truth and protecting individual rights matter, also mere "spectators at the theater?"

Early days of Nazi rule

Within weeks of Adolf Hitler taking power in 1933, the Nazis ordered German police not to protect Jews or their property, barred Jews from juries and dismissed Jewish judges, lawyers and clerks from government positions. About 16 percent of all German lawyers were of the Jewish faith.

Haffner writes about a visit to the local courthouse on one of the early days of Nazi rule. There, he saw Jewish attorneys "as though this were a day like any other." Haffner withdrew to the library. Suddenly noises erupt. The dreaded SA (known as storm troopers or brown shirts).

Soon, Haffner writes, shouts of "Out with the Jews!" stab the air. Someone in the library reports that the Jews have left, provoking a smattering of giggles. Haffner recognizes the offenders as fellow law students.

Although the Jewish judges "had removed their robes and left the building quietly and civilly, going down the staircase lined with SA men," Jewish lawyers who resist are dragged to the street. Haffner learns that at least one attorney was beaten, a proud wounded veteran of the world war.

The storm troopers finally arrive in the library to inspect for Jews. A brown shirt comes up to Haffner. Is he Aryan? Immediately Haffner replies, "Yes." Haffner adds, "He took a close look at my nose — and retired. The blood shot to my face. A moment too late I felt the shame, the defeat. I had said 'Yes'! Well, in God's name, I was indeed an 'Aryan.' I had not lied, I had allowed something much worse to happen. … I had failed my very first test."

Later, the guilt-ridden Haffner calls into question the reaction of the lawyers and law students in the library: "Why didn't anyone get up spontaneously and object? Why didn't they protest, if not against everything, then at least against some specific injustice, some unfair incident that took place in their midst?"

Historians have revealed hardly a public instance of Nazi Germany's judiciary or bar associations lamenting or sympathizing with the plight of their Jewish brethren.

Due to the standing of judges in German society, according to the U.S. Holocaust Memorial Museum, the judiciary "might have effectively challenged Hitler's authority, the legitimacy of the Nazi regime, and the hundreds of laws…." Moreover, "most [judges] not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis' ability to carry out their agenda."

Similarly, German bar associations went along with hardly a murmur of disapproval. In August 1933, the German Lawyers' Association threatened a boycott of law firms that had not dismissed their Jewish lawyers. The next month the German Bar Congress banned Jewish lawyers.

By ridding the court system of Jewish judges and lawyers, and in short order civil cases involving Jewish litigants, the Nazis virtually cut off Jews from access to the courts. Jews found themselves at the mercy of the murderous Nazis. It is not unusual for repressive governments to initially target the legal profession — society's guardians of justice, defenders of minorities, keepers of liberties.

Undeniably, a prerequisite to ensure that justice flourishes is the strong presence of diverse judges and lawyers in the profession. Injustice breeds in the absence of diversity. This is one reason for the existence of the Jewish Judges Association of Illinois, the Decalogue Society of Lawyers, the Illinois Judicial Council, the Cook County Bar Association, the Hispanic Lawyers Association of Illinois, the Alliance of Illinois Judges and dozens of other legal groups.

Another reason these organizations and the mainstream bar associations exist is to ensure access to justice for all. Without refuge to the courts, the vulnerable and violated can easily become victims and estranged from society, which is why performing pro bono services is so critical.

The heinousness of the Holocaust should not obscure another lesson gleaned from Haffner's story — how we respond on hearing or seeing or reading about a terrible injustice committed here and beyond. Do we giggle? Do we nod our heads, but move on to the next file? Or, do we take action to end it?