Nazi Law Research Articles

Early state socialism and eugenics: Premarital medical certificates in Czechoslovakia, East Germany, and Poland in the aftermath of World War II

The article discusses the immediate post-war persistence and subsequent rejection of eugenics in East-Central European socialist states, exploring the case of premarital medical certificates. Building our analysis on published and archival sources, we show that immediately after the war, policies formulated at the governmental level were informed by eugenic ideas in medical expertise. Premarital medical certificates were aimed at combatting contagious diseases and thus securing a healthy population. Their legal status varied: in Poland, they were formally introduced; in the Soviet Occupied Zone and East Germany, Nazi law was abolished, but local officials still advocated for the introduction of certificates; and in Czechoslovakia, medical certificates were planned but not introduced. Despite these differences, after a short period between 1949 and 1950, the attempts to put a measure into practice ended in all three countries. We argue that the communist takeover and consolidation of power played a decisive role. After 1950, premarital medical certificates were not discussed again in Czechoslovakia or East Germany; in Poland, the debate re-emerged in 1959–60 during political liberalization.

Apply the Laws, if They are Good: Moral Evaluations Linearly Predict Whether Judges Should Enforce the Law.

What should judges do when faced with immoral laws? Should they apply them without exception, since "the law is the law?" Or can exceptions be made for grossly immoral laws, such as historically, Nazi law? Surveying laypeople (N = 167) and people with some legal training (N = 141) on these matters, we find a surprisingly strong, monotonic relationship between people's subjective moral evaluation of laws and their judgments that these laws should be applied in concrete cases. This tendency is most pronounced among individuals who endorse natural law (i.e., the legal-philosophical view that immoral laws are not valid laws at all), and is attenuated when disagreement about the moral status of a law is considered reasonable. The relationship is equally strong for laypeople and for those with legal training. We situate our findings within the broader context of morality's influence on legal reasoning that experimental jurisprudence has uncovered in recent years, and consider normative implications.

How Hermann Kantorowicz Changed His Mind About America and Its Law, 1927–34

AbstractHermann Kantorowicz crossed the Atlantic twice: to take up a visiting professorship at Columbia Law School in the summer of 1927, and to find refuge at New York's University in Exile in 1933/1934. Between his first and second stay, the German-Jewish émigré changed his mind about America and its law fundamentally. While he had—patronizingly—praised his US colleagues for “catch[ing] up… intellectually” in 1927, he accused them of “destroy[ing] the Law itself” in 1934. Reconstructing Kantorowicz's change of heart, my article uncovers just how open the transatlantic 1930s still were in jurisprudential matters. As leader of the so-called “free law” movement, Kantorowicz had sparked a turn to “life” in German legal science in the years before World War I. Throughout the 1920s, he had then watched contentedly, as American “realist” scholars drew on free law ideas for their own critical projects. By 1934, however, Kantorowicz could not help but notice parallels between New Deal and Nazi law. To his mind, both Roosevelt's and Hitler's jurists had started turning his moderate free law ideas into a radical—and dangerous—legal nihilism: in designating law as life's only source, they shunned scientific legal methods. In light of these concerns, my article excavates life-law's delicate suspension between peril and potential. My sources reveal a striking, triangular relationship between German free law, American legal realism, and Nazi life-jurisprudence.

Between prerogative power and legality – reading Ernst Fraenkel’s The Dual State as an analytical tool for present authoritarian rule

ABSTRACT Ernst Fraenkel’s seminal study about Nazi law, in which he described the co-existence of a ‘normative state’ and a ‘prerogative state’ as principles of government, is to be rediscovered in the new age of the prerogative. Through a critical reading of The Dual State and other important texts by Fraenkel, this article seeks to contribute to the contemporary debate on regime types and governmental power in (at least) three regards: first, by clarifying Fraenkel’s concept of and perspective on law; second, by discussing the methodological demands for the beneficial application of the dual state concept; and, third, by showing the usefulness of such an application, even beyond the field of authoritarian states in the narrower sense. Law-eroding prerogative developments cannot only be witnessed in hybrid regimes, but also in democratic states, which resort to reflections and practices of an ‘enemy criminal law’, and in the European Union’s recent crisis politics.

ЮРИДИЧЕСКОЕ МЫШЛЕНИЕ КАК ИСТОЧНИК ПРАВА ТРЕТЬЕГО РЕЙХА

The article is devoted to the legal system of Third Reich and its characteristic features, such as its essence, origin and qualification, as well as sources of law (and their hierarchy in dialectical development). The priority feature of the Third Reich legal system is considered to be the elimination of law as a legal source and an individual as a legal subject, which gives Nazi law the character of a social system that can only function in a state of emergency and martial law, when the rights and freedoms of man and citizen are limited or canceled. In order to justify and introduce national socialist law in Germany (from 1933 to 1945) national lawyers worked out its classification according to the types (methods) of mentality . Being employed in the legal system of Nazi Germany, the classification to a large extent stimulated the violation of such concepts as law and legal right , transforming many reasons for eliminating any type of dissent into the legal ones. As a working hypothesis the author puts forward an assumption according to which the goal of the Third Reich legal system and its political ideology was that of molding standardized national mentality that regulated people’s behavior in the way wanted by German Nazi.

Holocaust memory on trial: Nazi propaganda film techniques in Roland Suso Richter's Nichts als die Wahrheit

ABSTRACT Roland Suso Richter's 1999 courtroom thriller Nichts als die Wahrheit (After the Truth) alerts viewers to the power of film to manipulate its audience with implicit references to Wolfgang Liebeneiner's NS propaganda film Ich klage an (I accuse, 1941). In both courtroom dramas the accused defend their crimes as acts of euthanasia. Ich klage an sought to reach acceptance for the Nazi law on euthanasia. Nichts als die Wahrheit is a fictional trial in which Josef Mengele excuses his crimes during the Holocaust as euthanasia in order to appeal to audiences in recently reunified Germany. It engages with the National Socialists’ instrumentalization of film for propaganda purposes by employing similar filmic and rhetorical techniques as NS films in order to challenge viewers to find out whether these techniques still have manipulative effects. By presenting the character of a major Holocaust perpetrator as protagonist, Nichts als die Wahrheit cautions its spectators to be cognizant of their own susceptibility to Nazi propaganda and critical of the information about the National Socialist past with which they are presented in films.

Nazi Law: From Nuremberg to Nuremberg ed. by John J. Michalczyk

Nazi Law: From Nuremberg to Nuremberg ed. by John J. Michalczyk

Book Review: Nazi Law: From Nuremberg to Nuremberg

Book Review: Nazi Law: From Nuremberg to Nuremberg

The Jargon of “Law and Order”: From Nazism to the Trump Campaign via Heidegger

Nazi philosophy survived through Carl Schmitt and Martin Heidegger. I use Theodor Adorno’s concept “jargon” to show how this philosophy was a key component in Nazi jurisprudence and Nazi law. We see similar jargon in Donald Trump’s 2016 presidential campaign. Certain “critical” responses to Nazi law perpetuate this jargon and thus (unwittingly) normalize far-right positions in law and policy. If we are determined that such atrocities never happen again, we must begin at the metaphysical/ontological level. I suggest that the key flaw in Heidegger’s philosophy is that it does not place enough emphasis on human fallibility.

‘No one wants the taint of an association with the crimes of Nazism’: (Sometimes) in search of the meaning of Nazi Law

In 2011, David Fraser highlighted ‘the lacunae … in legal scholarship’s treatment of the Nazi killing machine as a juridical phenomenon’.1 This same void in the legal academy’s engagement with the ...

The Distorted Jurisprudential Discourse of Nazi Law: Uncovering the \u2018Rupture Thesis\u2019 in the Anglo-American Legal Academy

It has been remarked that the ‘rupture thesis’ prevails within the Anglo-American legal academy in its understanding of the legal system in Nazi Germany. This article explores the existence and origins of this idea—that ‘Nazi law’ represented an aberration from normal legal-historical development with a point of rupture persisting between it and the ‘normal’ or central concept of law—within jurisprudential discourse in order to illustrate the prevalence of a distorted (mis)representation of Nazi law and how this distortion is manifested within the discourse today. An analysis of the treatment of Nazi law in two major 50th anniversary publications about the 1958 Hart–Fuller debate, and a review of representations of the Third Reich within literature from the current discourse, demonstrates that the rupture thesis continues to be reproduced within jurisprudence. An examination of the role of Nazi law in the Hart–Fuller debate itself shows that it can be traced back to the debate, where it was constructed through a combination of conceptual determinism and historical omission. It concludes that the historical Nazi law has great significance for the concept of law, but neither positivism nor natural law has properly theorised the nature of the real Nazi legal system.

Spirit without letter: How volkish Nazi law falls outside Fuller’s and Hart’s concepts of law

National Socialism never achieved its vision of ‘law’. The 1958 debate between Fuller and Hart, and subsequent literature in the Anglo-American legal philosophical tradition has thus never addressed the question of what concept of law is compatible with Nazism’s ultimate goals and what we might learn from such a concept about the relationship between law and evil. This essay first shows how law reform was far from complete by the time the war ended. It then demonstrates how the mystic, ‘volkish’ movement informed the Nazi vision for law. It will then be seen that this concept simply does not fit with some very basic shared assumptions from which the Fuller and Hart debate proceeds. This reveals the degree to which concepts of law within the Anglo-American jurisprudential tradition must accept that law has a specific moral content. Such concepts of law are incompatible with a bullying form of oppression that was at the core of Nazism’s moral bankruptcy.

Wódz, naród, rasa. Ideologiczne przesłanki nazistowskich koncepcji prawa

THE LEADER, THE NATION AND THE RACE. IDEOLOGICAL PREMISES OF THE NAZI CONCEPT OF LAW The subject matter of the article is devoted to discussing the ideological premises of the con­tent, aims, and functions of Nazi law from the perspective of the legal theoreticians and practition­ers of the Third Reich. Firstly, the significance and role of the supreme leader the Führer of the National Socialists and Germany in asingle person, namely Adolf Hitler, is discussed. The legal doctrine of the Nazi state perceived him — just as he did himself — to be the basic source of law and treated his political decisions as such. In fact, these decisions were even thought to stand above the Weimar Constitution of 1919 which was only formally in force and other pieces of legislation. Hitler was not merely viewed as the supreme legislator, but also as the highest judge, acting by the will of the German nation. Judicial decisions in the Third Reich were issued on his behalf. Accord­ing to Nazi lawyers, Hitler as Führer embodied and articulated the will of the German nation, whose needs, interests, and aspirations were considered the purpose behind the functioning of the state and the Reich’s law. Furthermore, the German national community deutsche Volksgemeinaschaft rose to the rank of the near absolute determinant of the law’s form and content. It was, in fact, the reference for one of the important principles of Nazi law, i.e. the common good before personal good Gemeinnutz vor Eigennutz — hence, anegation of the concepts of individualism, including the unchallengeable nature of private property. In addition, the ideological premises of the Nazi concept of law also comprised racial issues. The Third Reich placed particular emphasis on racial purity and hygiene — which referred predominantly to the Germanic race — as acondition for the German national community’s healthy functioning. Nazi law, inter alia, was supposed to serve precisely that end. The legal doctrine in Germany at the time adopted the unequivocal position that the law — together with the administration of justice — should be one of the most important guards of the longevity and purity of the Germanic race sometimes referred to as the Aryan race. This stipulation, which for the most part was consistently implemented, was closely linked to the National Socialists’ almost zoological antisemitism. It was reflected in numerous normative acts by the Third Reich’s authorities targeting the Jewish population in Germany and the countries it occupied during WWII.

Staging Resistance from the Clergy During the Holocaust

The resistance to the Holocaust from Catholic and Protestant clergymen came in myriad forms. A few clergy willingly gave up their lives, thus becoming martyrs for refusing to be judged by Nazi law, surrendering instead to divine justice. Such noble and heroic decisions in which a humble person surrenders life in defiance of a totalitarian regime opposed to Christian humanism is a subject most worthy of study. This essay focuses exclusively on stage representations of the extreme sacrifices the clergy made during the Holocaust as reflected by martyrdom in Arthur Giron’s Edith Stein and David Gooderson’s Kolbe’s Gift. The protagonists of these two plays, Edith Stein and Maximilian Kolbe, died and suffered greatly to uphold the moral position of the Church.

The Lawyer Who Mocked Hitler, and Other Jewish Commentaries on the Nuremberg Laws

AbstractNazi Germany’s Nuremberg Laws of 1935 generated legal commentary by Nazi jurists who eagerly extended its antisemitic principles—but not by Jewish lawyers, for whom the discrimination was too blatant and the risks of public criticism too dangerous. In the winter of 1936-37 in Leipzig, however, one obscure lawyer named Max Hellmann made an incisive commentary about the laws. Faced with prosecution for employing a female “Aryan” cook, Hellmann, a convert and widower in despair, responded boldly: he subpoenaed Adolf Hitler to testify and even moved to imprison him pending the judge’s decision. His defense was, in fact, a satire. It mocked the so-called Führerprinzip (leadership principle), i.e., the idea of law as the Führer’s will, at the heart of the Nazi legal system. Persistently contrasting the need for legal procedures with the primacy of irrational will, Hellmann showed that the leadership principle was incoherent with regard to the separation of powers, the role of the judiciary, the process of legislation, and the very nature of law itself. He provided a detailed critique of Nazi law that insiders, such as Nazi jurists, dared not think, and that outsiders, such as Jewish lawyers, had no reason to develop.

The Global Model of Constitutional Rights: A Response to Afonso da Silva, Harel, and Porat

The issues and criticisms that Virgílio Afonso da Silva, Alon Harel, and Iddo Porat raise about The Global Model of Constitutional Rights1 relate, first, to its methodology (in particular the nature of my theory as morally reconstructive, and its global character), secondly, to the role of autonomy (in particular its relation to equality, and my defence of a general right to autonomy), and thirdly, to the problem of justification (outcome-based versus excluded reasons-based ways of reasoning about questions of rights). Correspondingly, I divide this response into three sections, dealing with the methodological questions in the first, with the autonomy-related issues in the second, and with the problem of justification in the final section. Any morally reconstructive theory is Janus-headed: it looks both to fit with the practice and to moral value. Thus, a morally reconstructive theory of the global model of constitutional rights must meet two criteria: first, it must “fit” the global model sufficiently well to be rightly considered a theory “of” that practice, and second, it must be morally coherent. If, on the one hand, my theory did not have sufficient fit, then it would simply be a free-standing theory of rights—indeed it might be excellent in this regard, but it could not claim to be a theory of the global model. If, on the other hand, my theory were morally incoherent, it could not claim to be a moral reconstruction. The goal of the book is to show that the global model, which departs in so many ways from how almost all moral and political philosophers think about rights, is morally defensible. A morally incoherent theory obviously could not be used to demonstrate this claim. It is of course a possibility that a practice is morally indefensible: that it cannot be reconstructed in a way which fits the practice and shows it as morally appealing (think of Nazi law as an extreme example). Where that is the case, it must be concluded that the practice ought to be abandoned or radically changed, precisely because no theory that fits that practice sufficiently well displays moral coherence.

THE IMPOSSIBILITY OF AN EXTERMINATORY LEGALITY: LAW AND THE HOLOCAUST

Discussions of Nazi law in legal philosophy are most commonly concerned with how the Nazis' use of law as a means to persecute their opponents demonstrates the essential amorality of law. Attention is often also paid to the institutional debasements and interpretive excesses that characterized the operation of the Nazi political courts. Within these discussions, however, little or no consideration is given to the specificities of the Jewish experience of Nazi law, nor to the fact that the role of law in determining the nature and quality of Jewish life stopped short of the extermination program. In this article, the author seeks to correct this neglect by exploring the questions for legal philosophy, as well as for scholarship that probes the connections between law and the Holocaust, that arise from an examination of the Jewish experience of Nazi law. Drawing primarily upon the thought of the mid-twentieth-century legal philosopher Lon L. Fuller, the author investigates what the apparent shift from legality to terror within the Nazi persecution of the Jews might reveal not only about the institutional features of that persecutory program but also about the nature of legality more generally.

The Impossibility of an Exterminatory Legality: Law and the Holocaust

Discussions of Nazi law in legal philosophy are most commonly concerned with how the Nazis' use of law as a means to persecute their opponents demonstrates the essential amorality of law. Attention is often also paid to the institutional debasements and interpretive excesses that characterized the operation of the Nazi political courts. Within these discussions, however, little or no consideration is given to the specificities of the Jewish experience of Nazi law, nor to the fact that the role of law in determining the nature and quality of Jewish life stopped short of the extermination program. In this article, the author seeks to correct this neglect by exploring the questions for legal philosophy, as well as for scholarship that probes the connections between law and the Holocaust, that arise from an examination of the Jewish experience of Nazi law. Drawing primarily upon the thought of the mid-twentieth-century legal philosopher Lon L. Fuller, the author investigates what the apparent shift from legality to terror within the Nazi persecution of the Jews might reveal not only about the institutional features of that persecutory program but also about the nature of legality more generally.

Does Judgment at Nuremberg Accurately Depict the Nazi War Crimes Trial?

The year 2007 was the sixtieth anniversary of the Nuremberg War Crimes Trials, in which the victorious Allies prosecuted high officials in the Nazi regime for what were labeled crimes against humanity. Discussing the contemporary significance of the trials, Bradley F. Smith writes in Reaching Judgment at Nuremberg, Only now are historians gradually coming to realize ... that Nuremberg was not only a source of historical material but was a vital and absorbing aspect of contemporary history. A moment's reflection suggests that many of the significant forces that shaped the European and American transition from war to peace and then to cold war appeared in microcosm during the trial. The changes that World War II and its aftermath produced in American values and policy show up in striking clarity at Nuremberg.... The trial deserves our attention even more because it was a crucial episode in modern man's effort to grapple with the responsibility of leaders for unleashing war and causing mass (xvi). The concluding of this anniversary is a good time to reassess the best-known American film about the trials-Judgment at Nuremberg, directed by Stanley Kramer, which appeared in theaters in 1961. Rather than depicting the most prominent of these trials, which prosecuted such high-level members of Hitler's inner circle as Hermann Goring, the film focuses on a later trial-transpiring after these more sensational prosecutions were over-which indicted German judges because their courtroom verdicts furthered the Third Reich's aims by upholding Nazi law. Such a focus is a mixed blessing. On the one hand, the film misses a chance to explore the guilt of those most directly responsible for the creation and implementation of the Holocaust. But, on the other hand, it succeeds in dramatizing how responsibility for the Shoah and other Nazi atrocities extends far beyond the Fuhrer's chief advisors into the social institutions, civil as well as military, which composed the fabric of German society under Hitler. Judgment at Nuremberg was not American pop culture's first attempt to address the trials. That honor belonged to a 1959 television program of the same name broadcast on the distinguished dramatic series Playhouse 90. Based on a script by Abby Mann (who had also composed the film's screenplay), it featured a stellar cast for television including Claude Rains, Paul Lukas, and the German actor Maximilian Schell (the only cast member who also appeared in the film, playing the same role of the young German defense lawyer, for which he received a Best Supporting Actor Oscar). The television program was produced by Herbert Brodkin, who would later be the producer of the influential 1970s TV miniseries, Holocaust: The Story of the Family Weiss. The program covered much the same ground as the movie would, including identical judges, prosecutors, defendants, and witnesses, but at roughly one-third the length of the cinematic version. As a result, Gavin Lambert writes in a contemporary review in Film Quarterly, Not surprisingly, in a program of less than ninety minutes, some of the characterizations seemed a bit thin; but for much of the time the show worked as dramatic journalism (52). Whether due to these characterization problems, or because the program appeared on the small screen at a time when television was still in its infancy, the show, despite its strengths, had nowhere near the influence of Kramer's film. By the time he turned to Judgment at Nuremberg, the maverick director Stanley Kramer already had a reputation in Hollywood as king of the message movie. His previous films-The Defiant Ones (1958), touching on racial intolerance through the story of two escaped convicts, On the Beach (1959), imagining a post-nuclearholocaust world, and Inhent the Wind (1960), dramatizing the 1925 Scopes Monkey Trial over the teaching of evolution in public schools-had all tackled controversial social and political topics in a way that exhibited a willingness to challenge the ingrained timidity of the major studios when it came to dramatizing contentious subject matter. …

Nazi Law and the Concept of Community

Nazi Law and the Concept of Community