The Legitimacy-Before-Power Principle
Establishing moral and legal authority as the precondition for systemic change
The Legitimacy-Before-Power Principle captures Bauer's strategic approach of establishing foundational legal and moral precedents before attempting major prosecutions. His early career move of prosecuting neo-Nazi Otto Ernst Remer was not about punishing one individual but about establishing the legal principle that the Nazi state was illegitimate and that resistance to it was lawful. This precedent became the foundation upon which all subsequent Nazi prosecution efforts rested.
The principle holds that in contested domains, the most important early victories are not the most dramatic ones but those that establish the rules of engagement. By winning the argument that the Nazi state was unjust, Bauer transformed the legal landscape before launching his larger campaigns. Without this foundation, every subsequent prosecution would have had to relitigate the basic question of whether the Third Reich's orders carried legal authority.
This approach requires patience and strategic vision. The temptation is always to pursue the most dramatic target first, but without established precedent, dramatic cases are built on sand. Bauer understood that investing in foundational legitimacy early multiplied the impact of every subsequent action.
- The most important early victories establish rules and precedents, not dramatic outcomes.
- Foundational legitimacy multiplies the impact of every subsequent action taken upon it.
- Choosing the right first battle is more important than choosing the biggest one.
- Legal and moral precedents outlast individual cases and create durable frameworks for future action.
- Patience in building foundations pays compound returns over time.
- Identify the Foundational QuestionBefore pursuing your ultimate objectives, identify the fundamental question that must be settled first. For Bauer, it was whether the Nazi state was legitimate and whether its orders carried legal authority. Until this question was answered, every prosecution could be derailed by the argument that defendants were simply following lawful orders.Pro tipThe foundational question is often not the most obvious one. Look for the unstated assumption that your opponents rely on and target it directly.WarningDo not skip this step in eagerness to pursue larger targets. Building on an unsettled foundation invites collapse.
- Select a Vehicle Case That Resolves the FoundationChoose a case, action, or initiative that will establish the foundational precedent. Bauer selected the Remer prosecution because it was winnable, publicly visible, and directly raised the question of the Nazi state's legitimacy. The ideal vehicle case is one where the facts strongly support your position and where a favorable outcome creates broadly applicable precedent.Pro tipThe vehicle case should be sympathetically framed. Prosecuting a neo-Nazi for slandering anti-Hitler heroes was far more publicly palatable than directly arguing abstract constitutional law.WarningIf you lose the vehicle case, you may set negative precedent that harms future efforts. Choose a case you are confident of winning.
- Win the Foundation and Publicize the PrecedentExecute the vehicle case and ensure that the resulting precedent is widely known and understood. Bauer did not simply win the Remer trial; he ensured that the court's reasoning about the illegitimacy of the Nazi state became part of the legal and public discourse. The precedent is only valuable if people know about it and understand its implications.Pro tipWrite and speak publicly about the precedent's significance. Bauer used lectures, articles, and media appearances to amplify the Remer ruling's implications far beyond the courtroom.WarningOpponents will attempt to narrow the precedent's applicability. Actively defend and expand its interpretation.
- Build Subsequent Campaigns on the Established FoundationUse the established precedent as the launching pad for progressively larger initiatives. Bauer's subsequent prosecution of Nazi war criminals, his pursuit of Eichmann, and the Frankfurt Auschwitz trial all rested on the legal foundation established by the Remer ruling. Each success further reinforced the foundation while advancing the larger mission.Pro tipReference the foundational precedent explicitly in every subsequent action. This creates a chain of legitimacy that becomes increasingly difficult to challenge.WarningDo not become complacent. Opponents will continuously test and attempt to erode established precedent. Defend it actively.
Bauer prosecuted Otto Ernst Remer in 1952 for publicly slandering the July 20 plotters as traitors. Rather than treating this as a simple slander case, Bauer used it to argue that the Nazi state was fundamentally illegitimate and that therefore resistance to it was not treason but a moral duty. He called prominent witnesses and presented extensive evidence about the criminal nature of the regime.
After establishing the Remer precedent, Bauer progressively escalated his campaigns. He moved from prosecuting a neo-Nazi blowhard to tracking down the architect of the Final Solution, and from there to putting the entire Auschwitz machinery on trial. Each campaign built on the legitimacy established by previous ones, creating a chain of accountability that would have been impossible without the foundational work.
When Bauer was appointed attorney general in Braunschweig in 1950, he found a West Germany where former Nazis openly praised Hitler and the July 20 plotters who had tried to assassinate him were widely regarded as traitors. Otto Ernst Remer, a Wehrmacht officer who had helped suppress the July 20 plot, was touring the country publicly slandering the plotters. Bauer saw an opportunity: by prosecuting Remer for slander, he could establish a legal precedent declaring the Nazi state illegitimate. The case was nominally about one man's inflammatory speeches, but Bauer transformed it into a trial of the Nazi regime itself. The court's ruling that the Third Reich was an unjust state and that resistance to it was lawful created the constitutional bedrock for Germany's entire postwar accountability framework.