By Dr Simon Lavis
Dr Simon Lavis is Lecturer in Law at The Open University, and has published articles and book chapters on the historical and legal nature and representation of Nazi law.
Academic discussion of law in relation to Nazi Germany is dominated by the Nuremberg trials, and particularly the International Military Tribunal (IMT). The postwar response to Nazi Germany by those who framed the prosecutions at the IMT and the subsequent Nuremburg Military Tribunal (NMT) proceedings, including the so-called Justice case prosecuting Nazi legal officials,[i] was to label Nazism a criminal enterprise,[ii] thereby condemning the Third Reich to be an essentially lawless state, a place where law existed in name only.[iii] This served a dual purpose. First, to put Nazi leaders and institutions responsible for egregious acts on the wrong side of the law, so that any claims they were acting lawfully could be overcome. Second, to put the law on the right side of history; as Christiane Wilke has put it, to ‘reconsecrat[e] the temple of justice’,[iv] so that law was the thing used to address the brutality and barbarism of Nazism, not the thing partially responsible for it.
This representation was mirrored in post-war legal philosophy, which witnessed a re-evaluation of the merits of legal positivism (which insists on a strict separation between law and morality) and a renaissance in natural law thinking (according to which law and morality are inherently connected). Most famously encapsulated in the contributions of German legal theorist Gustav Radbruch[v] and American legal philosopher Lon Fuller,[vi] this approach enabled Nazi ‘law’ to be treated as invalid for failing to comply with certain moral tenets.[vii] This understanding of Nazi law continues to be prevalent within areas of the Anglo-American legal academy, particularly legal philosophy.[viii]
The postwar response of historians to the phenomenon of Nazi law has run in parallel but with little overlap. There have been a number of books written in recent decades about the distortion of history engendered by the postwar trials and their impact on Holocaust memory,[ix] but not on the distortion of Nazi law specifically, and very little English-language legal history of the Third Reich was written for a long time. This is partly because of these distortions, and partly because of the enduring influence of contemporary studies by Franz Neumann and Ernst Fraenkel[x], the former of whom, in particular, advocated for the lawlessness of the Third Reich. While Martin Broszat’s The Hitler State[xi] did include a chapter on ‘Law and justice’, most famous studies of the Nazi state discussed many individual Nazi laws, but overlooked the legal system as a distinct object of inquiry.
The historical and legal erasure of Nazi law has come under scrutiny in recent years, when there has been an increasing interest in it as a distinct subject of research, including books published in English by legal historians taking a longer view of the legal system of the Third Reich.[xii] However, these texts and others – David Fraser’s Law After Auschwitz, Jens Meierhenrich’s The Remnants of the Rechtsstaat, and Alan Steinweis and Robert Rachlin’s The Law in Nazi Germany, for example – all come from different academic fields and sub-fields, scholars from which rarely cross paths with one another, attend the same conferences or participate in the same discourse, despite being united by a single research object.
In some ways this is a well-recognised pitfall for any Third Reich researcher, as the field is so large, broad and diverse that it is impossible to master all of the literature, let alone incorporate it into a single piece of writing. In some ways the problem with Nazi law is just another example of historiographical debates about the extent to which the Third Reich should be normalised, the appropriate balance between rupture and continuity, and the respective importance of consent and coercion. Should Nazi law be seen as an aberration from normal law or a fairly ordinary case of law? Does the period 1933-1945 represent a fundamental legal discontinuity from what came before and after or a continuation? Was Nazi law used entirely as an instrument of terror or should the ideology underpinning its normativity be taken seriously for guiding the decisions and actions of the population?
Alongside this, it also seems that there are different priorities and disciplinary aims for different researchers engaged in a naturally multidisciplinary research area. This is arguably also not an uncommon dilemma for a historical period that has attracted interest from many humanities subjects beyond history (psychology, sociology, philosophy, etc.). The problem is that the most appropriate response to the use of law to commit atrocity may vary over time and space and across disciplinary boundaries, leaving aside the difficulties agreeing the measure used to determine what is ‘most appropriate’. While Holocaust historians, facing such a challenging subject, have largely moved beyond a pretense of simply recreating the past wie es eigentlich gewesen,[xiii] history is naturally a past-centred discipline rooted, at least to an extent, in gaining an understanding of the events under examination.
Historians cannot leave the present and their reconstructions of history are always shaped by it, but their gaze is cast unerringly on the past. Lawyers, including those prosecuting at Nuremberg, may be much more explicitly attentive to the contemporary political-juridical plane. This is well illustrated by the different approaches taken by scholars from the two disciplines to their subject in studies of Nazi war crimes trials, wherein books by international lawyers are chiefly concerned with the Nuremberg IMT as the origin of international criminal law, while historians have branched out to tell the stories of lesser known Nazi war crimes trials.[xiv]
What, then, is then purpose of studying Nazi law? To understand how it was used to further the aims of the Nazi regime? To prevent law from being used in such a way again? To understand the nature of law itself? These are all potentially valid answers, but historians and lawyers may disagree about which to prioritise in their own work. There is also an earlier question that needs answering, however: what is Nazi law? What is it that we are studying when we study Nazi law? This is a question that attracts fundamental disagreement.
As a starting point, lawyers, historians and others engaged with this field should talk to each other – attend the same conferences; read one another’s books and articles, and take account of the full, multi-disciplinary range of work in this area. It appears that this is starting to happen and I hope that by continuing down this path we can come closer to at least answering that initial question.
References:
[i] US v Josef Alstoetter et al, Trials of War Criminals Before the Nuernberg Military Tribunals, Vol III, ‘The Justice Case’ (United States Government Printing Office, 1951).
[ii] See, for the IMT, David Fraser (2016-2017), ‘(De)Constructing the Nazi State: Criminal Organizations and the Constitutional Theory of the International Military Tribunal’ 39 Loy. L.A. Int’l & Comp. L. Rev. 117; for the NMT, see Kim C. Priemel and Alexa Stiller (eds), Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography (Berghahn Books, 2012).
[iii] See David Fraser, Law After Auschwitz: Towards a Jurisprudence of the Holocaust (Carolina Academic Press, 2005).
[iv] Christiane Wilke, ‘Reconsecrating the Temple of Justice: Invocations of Civilization and Humanity in the Nuremberg Justice Case’ (2009) 24(2) Canadian Journal of Law and Society 181, 181.
[v] Radbruch G, ‘Statutory Lawlessness and Suprastatutory Law (1946)’ (2006) 26(1) OJLS 1. See Also Thomas Mertens, ‘Nazism, Legal Positivism and Radbruch’s Thesis on Statutory Injustice’ (2003) 14 Law and Critique 277.
[vi] Fuller L, ‘Positivism and Fidelity to Law — A Reply to Professor Hart’ (1958) 71(4) Harvard Law Review 630.
[vii] See also Rundle K, ‘The Impossibility of an Exterminatory Legality: Law and the Holocaust’ (2009) 59(1) University of Toronto Law Journal 65.
[viii] See Simon Lavis (2018) ‘The Distorted Jurisprudential Discourse of Nazi Law: Uncovering the ‘Rupture Thesis’ in the Anglo-American Legal Academy’, International Journal for the Semiotics of Law, Vol 31(4), December 2018, pp.745-770.
[ix] For example, Donald Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (OUP, 2001); Patricia Heberer and Jürgen Matthäus (eds), Atrocities on Trial: Historical Perspectives on the Politics of Prosecuting War Crimes (University of Nebraska Press, 2008); David Bankier and Dan Michman (eds), Holocaust and Justice: Representation and Historiography of the Holocaust in Post-War Trials(Yad Vashem, 2010).
[x] Franz Neumann, Behemoth: The Structure and Practice of National Socialism 1933-1944 (2nd edn, Frank Cass & Co, 1967); Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (New York, Octagon Books, 1969 [1942]).
[xi] Martin Broszat, the Hitler State: The Foundation and Development of the Internal Structure of the Third Reich (Longman, 1981).
[xii] For example, Thomas Vormbaum, A Modern History of German Criminal Law (Springer, 2014); Michael Stolleis, History of Social Law in Germany(Springer 2014); Michael Stolleis, Public Law in Germany ((OUP, 2017).
[xiii] ‘How it really was’, although accepting that Leopold von Ranke’s famous dictum may well be misinterpreted in this translation.
[xiv] For examples of this literature, see footnotes 516 and 517 of Simon Lavis, ‘The Conundrum of Nazi Law: An Historiographical Challenge to the Anglo-American Jurisprudential Representation of the Nazi Past’ (PhD, University of Nottingham, 2015 [unpublished]).
The British and Irish Association for Holocaust Studies 