Burning the Reichstag: A Dialogue between History and Law

AHA Session 132
Central European History Society 6
Saturday, January 3, 2015: 2:30 PM-4:30 PM
Liberty Suite 5 (Sheraton New York, Third Floor)
Andrew I. Port, Wayne State University
Hilary C. Earl, Nipissing University
Devin Owen Pendas, Boston College
Pamela E. Swett, McMaster University
Benjamin C. Hett, Hunter College, City University of New York

Session Abstract

Historians of modern Germany are well aware of the controversy over who set fire to the Reichstag, Germany’s parliament building, on the evening of February 27, 1933. The fire gave Hitler’s new and shaky coalition government a welcome pretext for the passage of the draconian Reichstag Fire Decree, effectively putting an end to the rule of law and individual liberty in Germany. The jurist and political scientist Ernst Fraenkel called this decree the real constitutional charter of the Third Reich. For a generation, therefore, it seemed clear to most observers on the old principle of cui bono that the Nazis themselves had set the fire. But starting in 1959, as a result of the writings of the intelligence official Fritz Tobias and the forceful intervention of historian Hans Mommsen, the consensus among historians shifted. Today the prevailing view is that the 24-year-old Dutch journeyman stonemason Marinus van der Lubbe broke into the building and set the fire himself, without any Nazi involvement.

Now historian Benjamin Hett is attempting to revise the revisionists with his new book, Burning the Reichstag. Hett argues that newly available scientific evidence indicates that van der Lubbe could not have set the fire himself, and that a circumstantial case mostly drawing on legal documents points to Nazi stormtroopers as the real culprits. Perhaps more provocatively, he argues that the “single culprit” theory is little more than the absorption by historians of a legal defense strategy put forward by former Gestapo officers who were, in most cases, serious war criminals. Perhaps more provocatively still, he suggests that German historians’ acceptance of the single culprit theory is closely linked to the downplaying and distrust of “victim” narratives and sources, which, as some recent literature has suggested, was characteristic of West German historiography until the 1990s.

This argument raises many debatable questions, which will form the substance of this roundtable. Above all, because so much of the evidence and documentation about the Reichstag fire comes from court cases, these are questions about the interaction of legal and historical methods. How do the priorities of legal argumentation and evidence collection differ from those of historians, and how have these priorities shaped the evidentiary base for this controversy? Have specific characteristics of the German legal system had particular effects on the Reichstag fire controversy? How persuasive can any argument be when it must rest largely on the documentary products of legal investigations? How persuasive is Hett’s argument about the motives of former Gestapo officers to construct the “single culprit” narrative after the war? And if we rethink the Reichstag fire in the ways that Hett suggests, how might this change how we teach and write about 20th century German history? This panel, with the range of specialties the panelists provide, should provide an opportunity for a lively and stimulating debate on these cross-disciplinary themes.

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