Nazi Law Research Paper

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1. Basic Principles

The basic Nazi principles of the organization of law and state can be characterized by an ambivalent juxtaposition of the leader principle (Fuhrerprinzip) and a racial–ethnic substance of the people’s community (Volksgemeinschaft). On the one hand we find the ‘Fuhrer’ as the head of a unitary, authoritarian, and militaristic state whose decisions are law. On the other hand we have the homogeneous nation of the German people. On the political level there is no separation of powers, no federal structure, only one party; no democratic, parliamentary, and pluralistic struggle for power. The leader acts beyond the ligatures of the rule of law. On the societal level class struggle is replaced by racial integration. Foreign elements—non-Aryans, political enemies such as communists and social democrats, asocials, criminals, etc.—are excluded by legal measures, by eugenic procedures, or by the arbitrary power of the police and the SS. The common good is authoritatively defined according to the ‘sane feeling of the people’ (gesundes Volksempfinden). The distinction between state and society, the boundaries between public and private, are dissolved by the totalitarian equalization and unification (Gleichschaltung) of intermediary organizations such as parties, trade unions, the media, universities, arts, etc. (only the churches could maintain some kind of relative autonomy). This system of paradoxical ‘substantial decisionism’ perished in the horrible collapse after its belligerent expansion.

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2. Legislation

On the ideological level of legal philosophers legislation was understood—and in fact it was a misunderstanding of Savigny’s notion of the Volksgeist—as the ‘expression’ of the popular substance, i.e., of a homogeneous Volksgemeinschaft. But how did the ‘law in the books’ come into the books in the first place? Legislative products, even during the Nazi era (1933–45), constituted a compromise of conflicting forces. So one has to look behind propaganda and find out how they came into being. But there exist only a few studies on the origin of Nazi legislation, e.g., in the field of marriage law and labor law.

The mere counting of the number and size of legal regulations shows that in Germany during the twentieth century the absolute maximum of legislative regulation—as far as the number is concerned—was reached in 1938 and 1939 (mainly measures to prepare for a war economy); a finding that might be of interest for those who talk about today’s ‘regulation flood.’ This vast amount indicates an instrumental use of norms, not an ‘expression’ of a volkische (racial– ethnic) will. As far as the forms of regulation are concerned, we find a variety of norms ranging from traditional laws to single orders of the Fuhrer, even unpublished ones, sometimes circulated via radio broadcasts.




2.1 Public Law

In public law it was for several years an open question whether the Weimar constitution was still valid. Although it was never formally invalidated it was displaced by new ‘basic laws,’ including the program of the Nazi Party (NSDAP). Basic rights were eliminated through the Verordnung des Reichsprasidenten zum Schutz on Volk und Staat of February 28, 1933. There was no separation of powers after the Ermachtigungsgesetz of March 24, 1933, which empowered the government or single ministries and other authorities to issue laws. The federal structure of the Weimar Republic was destroyed. Political power was centralized in the Reich authorities with Hitler on top as the Fuhrer and Reichskanzler in one person after August 1, 1934. The will of the Fuhrer was the supreme and unlimited source of law. His will could be manifested in a variety of norms (Gesetz, Verordnung, Erlaß, Einzelbefehl, Gesamtauftrag, etc.). On the level inferior to the Fuhrer there existed no clear competences, but rather a structural chaos that has been labeled a polycratic regime.

2.2 Penal Law

In penal law the principle of nulla poena sine lege (no punishment without a law) was abandoned by introducing the ‘analogous’ application of the law according to the gesundes Volksempfinden, and replaced by the principle of nullum crimen sine poena (no crime without a punishment). Various retroactive laws were issued. The penal system no longer focused on the criminal act defined as an offense against the Volksgemeinschaft. Instead the ‘types’ of the criminal (Tatertypen) became important. There was the Gewohnheits erbrecher, i.e., the habitual criminal against whom the Nazis introduced the ‘three strikes rule’; the violent criminal (Gewalt erbrecher); the murderer as a distinct type (Morder); and the ‘people’s blight,’ i.e., a person like a pestilential insect that has to be exterminated (Volksschadling). Instrumental use of penal law such as the Kriegssonderstrafrechts-verordnung (1939), or in its extreme instance the Polenstrafrechts erordnung (1941), becomes normatively unlimited. It is characterized by extremely vague norms that confer broad judicial discretion, and by a terroristic severity of sanctions.

2.3 Civil Law

In civil law there were only minor changes in the legislation, except in agricultural law and in family law. Using old rules the judiciary invented new doctrinal formulae that enabled the judges to intervene in the formerly private sphere of autonomous individuals by the interpretation of a contract as a Gemeinschafts erhaltnis (relationship of a community, a organic union). Through the ‘Law ordering national labor’ (Gesetz zur Ordnung der nationalen Arbeit) of January 20, 1934, the autonomy of trade unions and employer organizations to reach collective agreements was abolished. Strikes were illegal. The collective actors were integrated in the Deutsche Arbeitsfront and put under the control of state executors. The worker became a popular figure of Nazi propaganda, while the labor market, including wages and mobility, was intensively regulated long before World War II. In other spheres of the economy the state favored the interests of factions of big business and their trusts; state intervention increased during the war.

3. The Legal Staff

During the first years after 1933 court organization was not substantially changed. Special courts (Sondergerichte) (1933), the Volksgerichtshof (1934), and the Reichskriegsgericht (1936) were established. Under the new regime about 15 percent of judges and prosecutors were dismissed on political and/or racial grounds. For various reasons the caseload decreased. A substantial change took place in the form of Verreichlichung, i.e., the centralization of the court administration under the department of justice of the Reich that after 1935 controlled the jurisdiction of the courts. After 1936 the judiciary lost its competence in ‘political’ issues; mainly matters concerning the (secret) police. In an agreement with the ministry of justice in 1937 the Gestapo gained permission to torture (‘verscharfte Vernehmung’). Step by step the courts were excluded from prosecuting and sentencing Jews, homosexuals, and other enemies of the German Volk. In an agreement between Thierack (Minister of Justice) and Himmler (Chief of the Police and of the SS, respectively) of September 1942, ‘asocial elements,’ Jews, gypsies, Russians, Ukrainians, and so on, had to be handed over from the prisons to Himmler’s myrmidons.

All these measures were executed, accepted, or tolerated by members of the legal staff. A basic problem in dealing with Nazi law is how to explain the degree of conformity among judges, prosecutors, attorneys, and legal scholars. One explanation given after 1945 was that they acted on the basis of a ‘positivistic’ attitude by simply adhering to the law. Instead, it was a positive attitude to the new regime that was hailed by the organizations of judges and prosecutors. Judges were overzealous in their duty, e.g., in dismissing Jews from their legal positions as employees or tenants. Faced with the atrocities against Jews and political opponents, they displayed a passive onlooker’s attitude. Courts used racist arguments without being obliged to do so. They imposed excessively severe sentences: estimates of the number of executions, including those imposed by military courts, range from 20,000 to 50,000. There was almost no judicial opposition; instead there was widespread voluntary obedience.

4. Legal Culture

There exists very little evidence about ‘legal culture’ in the sense of knowledge and opinions about law among the populace during the Nazi era. Systematic examination of facts that illustrate people’s attitudes towards legal norms, judgments, legal institutions, and professional groups does not reveal a homogeneous Volksgemeinschaft, but a variety of differing opinions and attitudes. Many findings, for example reports by the Sicherheitsdienst of the SS, indicate that a deeply rooted trust in the courts (and in the Nazi regime in general) persisted until 1945. Only a small fraction of social problems or conflicts reach courts; criminal prosecution and private invocation of the courts are extremely selective, so it is significant that a considerable proportion of the activities of the Gestapo were provoked by private informers.

5. Normality And Terror

It would not be appropriate to look at Nazism only in light of the holocaust, without considering everyday law and the administration of justice. It is important not to neglect the routine work, the ‘normality’ of the judicial system with its millions of cases and unpublished decisions. A high degree of normality, of daily routine, is indispensable in such a system in order to secure the conformity of the legal staff, while continuous intervention would lead to a feeling of uncertainty.

In terms of legislative activity in Nazi Germany, a huge amount of routine work was done after 1933. There were not only the Nuremberg Laws (September 15, 1935), including the ‘Law for the protection of German blood and German honor’ (Gesetz zum Schutz des deutschen Blutes und der deutschen Ehre), and the ‘Reich citizenship law’ (Reichsburgergesetz), but also regulations concerning chimney sweeps, seeds, and wine corks.

An essential feature of the Nazi regime was the combination of open terror and everyday routine. Legally ‘normal’ and terrorist measures alternated, and terrorism occurred under the guise of the ‘normal.’ Three events might serve to exemplify this:

(a) The murder of Rohm and his followers in June and July 1934, which was followed by doctrinal justification as an act of government self-defence.

(b) The elimination and extermination of persons of so-called ‘inferior quality,’ starting with the ‘Law on the prevention of offspring afflicted with a hereditary disease’ (Gesetz zur Verhutung erbkranken Nachwuchses) of July 14, 1933, introducing coercive sterilization, followed by the ‘Law on the protection of the hereditary health of the German people’ (Gesetz zum Schutze der Erbgesundheit des deutschen Volkes) of October 18, 1935 (interdiction of marriage in the case of certain diseases), and finally the transition to secret ‘euthanasia’ actions (authorized by Hitler on September 9, 1939), started in January 1940.

(c) The prosecution and extinction of Jews.

6. Law And The Holocaust

The legal persecution of Jews advanced step by step, interrupted and radicalized by brutal, direct measures. First came the ‘Law for the reconstitution of officialdom’ (Gesetz zur Wiederherstellung des Berufsbeamtentums) of April 7, 1933, excluding Jews—with a few exceptions—from the civil service. The concept ‘Jew’ was not defined according to criteria of ‘race’; instead the religion of the grandparents was adopted as a criterion that could be used administratively. Step by legal step, the scope of social activities and the positions available to Jews were reduced. In September 1935 (through the Reich citizenship law) Jews were denied full citizenship. The new crime of ‘Rassenschande’ (prohibition of sexual intercourse between Jews and non-Jews) was introduced (in the ‘Law for the protection of German blood and German honor’). Legal ‘aryanization’ of Jewish property and exclusion from professions were pursued continuously by the legislators. The yellow star (Judenstern) was introduced in September 1941. In December 1941, Poles and Jews in the occupied territories in Eastern Europe were put under special penal regulations, with the threat of capital punishment for almost every kind of disobedience. After the January 1942 Wannsee Conference, at which the plans for the extermination of the Jews were formulated, their further persecution and extinction was by no means carried out extralegally, but in a legal–bureaucratic manner. From July 1, 1943, crimes committed by Jews were persecuted and sanctioned by the police only, and no longer by courts. The last published directive of November 11, 1944, barred Jews in Berlin from using heated public rooms.

Apart from this kind of legally sanctioned persecution, there were repeated ‘wild’ actions, starting with the antisemitic excesses in March and April 1933. Such persecutions reached their first climax in the antisemitic pogroms in November 1938, followed by a legal sequel (obligation to pay a tribute; collection of insurance benefits). The same pattern holds for the legal exclusion of other victims of Nazism: Sinti, Roma and other ‘Fremd olkische,’ homosexuals, criminals, the insane, asocials, communist, social democrats, Jehovah’s Witnesses, etc.

Injustice did not arise all of a sudden, but gradually. The step by step character of the prosecution of people not belonging to the Volksgemeinschaft contributed to the high degree of conformity among the legal staff. By accepting the first steps the official becomes incapable of resisting the further steps that might seem unjust to him (there were almost no women among the legal staff ).

7. Hitler And The Law

The remarks about law in Hitler’s Mein Kampf indicate a purely instrumentalist understanding: law is deprived of any intrinsic value and only conceived as an instrument to promote the Aryan race, to suppress and exclude all kinds of enemies and to secure the life of the German people. A few deprecatory remarks made by Hitler about jurists are reported. Sometimes he intervened arbitrarily in court cases, most famously in the Schlitt case (in 1942), which he used to have himself declared—for the second time after the Rohm murders—the supreme judge. After 1942 he was no longer concerned with individual cases.

8. Continuity And Discontinuity, Modernity And Regression

The Nazi era must neither be seen as entirely continuous with or totally isolated from what came before and what happened afterwards, i.e., its Weimar prehistory and the coming to terms with Nazism after 1945. The moments of continuity include both personnel and substantive factors. Personnel issues include the continued activity—and loyalty—of most lawyers within the judiciary and among legal scholars before and after 1933 as well as (at least in the Western zones of Germany) after 1945. Substantively, in the legal domain the Nazis and their legal lackeys were not very inventive. With the possible exception of agricultural law—and after 1939 the regulations concerning the war economy—they retained the traditional legal corpus. The vast majority of legal norms remained valid after 1933, but they were given new interpretations. In large measure they continued trends that had been evident before 1933, e.g., in penal law. With regard to eugenics, too, the Nazis referred back to much older concepts and also claimed to rely on similar practice abroad, e.g., in the USA and Scandinavia. In civil law, too, one can find continuity, e.g., in the so-called ‘materialization’ tendencies in private law, the limitating of contractual autonomy.

In some areas, the Nazi period achieved solutions for old disputes (e.g., in the Corporation Act (Aktiengesetz) of 1937). From a wider historical perspective some reforms can be interpreted as ‘progressive’: protective regulations concerning pregnancy and motherhood as well as juvenile workers, regulation of working hours, etc. In divorce law (1938), the grounds for divorce were broadened from the guilt of one spouse to include marriage breakdown (this again was an idea dating from before 1933). An innovation in legal doctrine was E. Forsthoff’s concept (introduced in 1938) of ‘Leistungs erwaltung,’ reflecting the change from the traditional intervention state (Eingriffs erwaltung) to a state administration that provides, in addition, welfare services and infrastructure.

The mixture of normality and terror, together with strong element of continuity, helps explain the high degree of conformity among the legal staff as well as among the general populace.

9. Justifications

All of the Nazi regime’s official legal measures— starting from the Machtergreifung between January and March 1933—were justified by legal scholars, in legal philosophy as well as in legal doctrine. C. Schmitt, for example, justified the Rohm murders in 1934; K. Larenz and others provided reasons for legal discrimination against Jews. It was no problem to accept eugenics, the presidents of the regional appeal courts and the chief public prosecutors were informed by the ministry of justice about the ‘euthanasia’ program in April 1941; in turn, they showed no opposition. For the excessive use of the death penalty one could refer to the saying that hard times require hard measures.

10. Was It Law?

In general, we may doubt—from a legal–philosophical point of view—whether Nazi law was law at all, whether there existed a legal system under the Nazis. It is not necessary to rely on natural law in order to deny the term law to what the Nazis called law, as did Radbruch after 1945. Ernst Fraenkel (Fraenkel 1941) called the regime as a ‘dual state,’ combining ‘normative state’ and a ‘prerogative state.’ The normative state, i.e., traditional state agencies, in particular the courts, acted ‘according to the law’ in dealing with nonpolitical issues, while the prerogative state, the ‘organs of dictatorship,’ acted ‘according to given conditions’ in what they defined as political matters. While the normative state contributed to the rational calculability required in a capitalist society, the prerogative state aimed at the oppressive creation of the Volksgemeinschaft, the dissolution of the institutions of the working class and the persecution of political foes. Fraenkel finished his manuscript in 1938 before he left Germany. In American exile Franz Neumann (Neumann 1942 44) came to the conclusion that Nazi Germany was a ‘non-state.’ Conflicts between various power groups, i.e., parts of the state administration, party cliques, big business interests, the military forces, and the SS–police complex resulted in a chaos of competences and a polycentric dissolution of legality as the mode of state organization.

In his pragmatic jurisprudence Lon Fuller (Fuller 1969, p. 39) describes ‘eight distinct routes to legal disaster’: no rules at all but only ad hoc decisions; failure to publicize; retroactive legislation; failure to make rules understandable (e.g., extremely vague rules); contradictory rules; rules that require conduct beyond the powers of the affected party; too frequent changes in the rules; no congruence between the rules as announced and their actual administration. According to Fuller’s ‘eight ways to fail to make law,’ the Nazis did not create a bad system of law; instead, their attempts resulted in ‘something that is not properly called a legal system at all’ (Fuller 1969, p. 33).

Bibliography:

  1. Fraenkel E 1941 The Dual State: A Contribution to the Theory of Dictatorship. Oxford University Press, New York (original German version Der Doppelstaat. In: Fraenkel E 1999 Gesammelte Schriften Band 2. Nomos, Baden-Baden, Germany)
  2. Fuller L L 1969 The Morality of Law, rev. edn. Yale University Press, New Haven, CT
  3. Gruchmann L 1988 Justiz im Dritten Reich 1933–1940. Anpassung und Unterwerfung in der Ara Gurtner. Oldenbourg, Munich, Germany
  4. Hirsch M, Majer D, Meinck J (eds.) 1984 Recht, Verwaltung und Justiz im Nationalsozialismus. Bund, Cologne, Germany
  5. Muller I 1987 Furchtbare Juristen. Die unbewaltigte Vergangenheit unserer Justiz. Kindler, Munich, Germany (trans. into English, 1991 Hitler’s Justice: The Courts of the Third Reich. Harvard University Press, Boston)
  6. Neumann F 1942/44 Behemoth. The Structure and Practice of National Socialism 1933–1944. Oxford University Press, New York
  7. Ruthers B 1989 Entartetes Recht. Beck, Munich, Germany
  8. Stolleis M 1998 The Law under the Swastika. University of Chicago Press, Chicago

 

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