1. Introduction

See, for example, Arendt (1951) and Gleason 1995).

For examples of the traditional view of authoritarian courts, see Tate (1995, pp. 27–37) and Solomon (2007, pp. 122–45).

For research which suggests some degree of judicial autonomy, see, for example, Pereira (2005), Hilbink (2007) and Ginsburg and Moustafa (2008). On some of the potential determinants of judicial autonomy, see Widner (2001), Finkel (2008), Helmke and Rosenbluth (2009, pp. 345–366) and Smith and Farrales (2010, pp. 163–193).

Much of this research is perforce country specific in its focus. Taking the case of East Germany as an example, for analysis of the underlying dynamics of demise, see Kopstein (1997) and Pfaff (2006). As for research on its formative years, see, for example, Malycha (2000); Pritchard (2000); Naimark (1995); Zank (1987); Benedikt (2003) and Allinson (2000). A useful introduction to the literature is given in Lammers (2002, pp. 333–342).

The immediate post-war period, before the advent of the Cold War, was the exception. As Hans Rothfels (1949, p. 15), Professor of Modern History at the University of Chicago, and one of many prominent academics of Jewish origin forced to emigrate from Nazi Germany, lamented in his 1948 book Die Deutsche Opposition gegen Hitler: ‘at the time it was an almost universally accepted view in this country [the USA] that there was not and never had been a German opposition to Hitler worth speaking of; that the Germans, differently from any other people and because of either inborn wickedness or an acquired habit of obedience or a specifically obnoxious political philosophy, voluntarily adhered or meekly submitted to a tyrannical regime of gangsters; that they deliberately closed their eyes to horrible crimes committed by Germans’. This value judgement attributed ‘collective guilt’ to the entire adult German population between 1933 and 1945, implying moral blame for Nazi crimes. Germans were forced to come to terms with certain elements of the past, specifically the legacy of Nazism and the Holocaust, through the Nuremberg War Crimes Trials and de-Nazification proceedings. These events occupied the attention of politicians, historians and the general public alike in the period preceding and shortly after the publication of Rothfels’ book. It is not surprising that in this climate the issue of German resistance against National Socialism was largely ignored, as it sat rather uncomfortably alongside the key values perceived as essential in the rehabilitation of the German nation: atonement, punishment and compensation.

Mommsen (1966, pp. 75–76), for example, has shown that the ideas of national-conservative resisters were not inspired by the ideals of democracy but rather could be traced back to the pre-Weimar period.

The linking of anti-fascist resistance with anti-capitalist values was not based on hard historical analysis. Indeed, communist resistance against Nazism appears to have had little to do with the roots of fascism in bourgeois society; see Wippermann (1998, pp. 269–70).

The Bavaria Project consisted of six volumes.

Broszat (1986, pp. 68–91) highlighted the shortcoming of ‘resistance’ as defined in early post-war writings: ‘The definition of exceptional cases [fundamental and active opposition] produced an idealised and undifferentiated picture of German resistance’.

Mallmann and Paul, for example, seek to replace the term Resistenz with reluctantly loyal; see Mallmann and Paul (1993, pp. 99, 105).

Kershaw (2015, p. 239), Koonz (1991, pp. 49–51), Large (1991, p. 4) and Peukert (1991, pp. 36–38) suggested that any study of resistance includes recognition of all acts of non-conformity.

Steinbach (1994, p. 228) writes: ‘The deserter is proof that within the strong hierarchy of ‘armed power’, there were alternatives to obeying orders; on the other hand, the helper of endangered Jews shows that even in everyday life, the web of the ‘totalitarian state’ does not provide an excuse for refusing to help or showing compassion’. Steinbach’s focus on everyday acts of disobedience reflected the trend of the literature to go beyond ‘forgotten’ political resisters to include other groups marginalised in studies of resistance. In their article Das andere Deutschland, Grebing and Wickert (1994, p. 222) contended that ‘the goal of further research into resistance and persecution of women and men should be aimed at tracking down the ambivalences in their lives, which for women arose from the contradiction between family tasks and occupational work, the possibility of resistance activities and survival in the period of National Socialism’.

A similar expression of the broader notion of resistance is reflected in the current Lexikon des Deutschen Widerstandes, edited by Peter Steinbach and Johannes Tuchel in 1998. ‘In this connection, resistance denotes all active and passive conducts directed against the National Socialist regime or a considerable aspect of the National Socialist ideology which involved high personal risks’; see Steinbach and Tuchel (1998, pp. 241–42).

In the words of Gerd Ueberschär (1984, p. 15): ‘The 20 July 1944 and other days from the history of resistance can be bridges on the way toward a new collective picture of the National Socialist period and resistance in the unified Germany. This will, however, only succeed when the oppositional behaviour of ‘the simple people’, the small forms of refusal in everyday life are given greater emphasis in the evaluation of resistance than previously, when one tended to place too much emphasis on certain prominent personalities and elites.

It must be said, however, that the advantage that Peukert’s framework provides in making a clear distinction between forms of behaviour is partially offset by the lack of conceptual clarity. The qualitative difference between acts of non-conformism, refusal and protest is not always easily definable. Nor is it clear how the parameters of complexity and risk delineate a clear boundary both within these forms of behaviour and between non-conformism and resistance. Does protest invariably lead to resistance?

In order to promote the readability and succinctness of this book, the results of the more detailed econometric and statistical analyses undertaken are not reported in the text. Readers interested in seeing these details and the full estimations underpinning claims made in the text, however, are directed via footnotes to references where that information is readily available.