Nazi Law as Pure Instrument: Natural Law, (Extra-)Legal Terror, and the Neglect of Ideology

Abstract

This chapter advances the claim that, notwithstanding the important instrumental element to the Nazi regime’s use of law, there is an a priori theoretical question to address about the nature of the concept of instrumentalism and the concept of “law” when confronting Nazi law. It examines analyses of Nazi rule by Franz Neumann, Lon Fuller, Kristen Rundle and others to argue that the concept of pure instrumentalism—cynical manipulation of law for oppressive purposes—and of law—as the rule of law – is the predominant hermeneutic lens through which Nazi law is understood as a matter of legal theory, particularly among natural law interpretations. It interrogates this representation to contend that it is problematic in light of historical evidence, because it oversimplifies the nature of the Nazi legal state and largely neglects the role played by the regime’s own ideology therein. The biggest problem for legal theory presented by an interpretation of law in the Third Reich focused on crude instrumentalism is that it renders unnecessary further investigation of the Nazi regime as a matter of law. It excludes from relevance for law a significant period of European legal history and prevents us from coming to terms with what this history means for law and legality today.