October 18, 2016
Germany is the rare case of a society that had to come to terms with a totalitarian past twice within half a century. This is an exceptional opportunity to study the reactions of the population toward such procedures that are based on law within the same legal culture and tradition. By such a comparison general factors that influence the evaluation of fairness and the acceptance of such procedures might be identified. Processes of coming to terms with the past comprise two types of procedures: criminal procedures against former elites and “mass procedures” concerning those on the middle and lower echelons of the state bureaucracy, the economy and political and social institutions. Procedural justice theory serves as a framework for the comparative approach. The Nurernberg trials and denazification after 1945 are compared to analogus procedures after 1989: Criminal procedures against the leading elites of the former GDR as well as against soldiers, who killed refugees at the border, the removal of party functionaries from their positions, and procedures that concern employees and collaborators of the Secret Service (Staatssicherheit). The analysis is based on surveys that were carried through by the US Military Government in the US-Zone from 1945 to 1949, and on surveys in the former GDR (the five new states) between 1989 and 1994. The analysis reveals remarkable parallels between both procedures as well as general factors that influence ratings of fairness and acceptance in the population: (a) The evaluation of procedures against elites is outcome-oriented, of mass procedures procedure-oriented; (b) from the start the population discriminates between those at the “top” who bear responsibility, and those “at the bottom”, who followed orders or were simply fellow travellers; the more procedures guarantee such a discrimination and the attribution of individual guilt, the more they are rated as fair and are accepted; (c) neither after 1945 nor after 1989 the economic Situation or the political belief system has a decisive role in the evaluation of procedures. Especially for denazification the importance of a “third party” is shown. Several conclusions with regard to the successful establishment of such procedures are drawn.