| Hitler and the Law |
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| After WW1, the world changed for ever. Notably in Russia and Germany where the idea that the ancient social system and its core values were responsible for the demise of both nations was supported by a majority of people and political leaders. In Germany, long before 1933, legal theorists were rejecting the idea that states were bound by a set of external and abstract legal norms that guaranteed the civil rights of the individuals and an independent judicial system. Hitler only stepped in this track. |
| Morality is what is set by the Führer |
| Carl Schmitt (1888-1985) became professor at the University of Berlin in 1933, the same year that he entered the Nazi party (NSDAP). Schmitt remained a party member until the end of the war, and never recanted his party membership. He has been called the "Crown Jurist of the Third Reich." For Schmitt, every government capable of decisive action must include a dictatorial element within its constitution and he supported the emergence of totalitarian power structures in a famous paper in 1923. In 1945, he was captured by the American forces; after spending more than a year in an internment camp, he returned to his home town of Plettenberg following his release in 1946. He was then discredited but continued to exert a strong influence upon other European jurists until his death. |
In Germany the clauses of the Treaty of Versailles (1919) were regarded as the
greatest injustice of all times, imposed by a bunch of arrogant nations blinded by
false notions of liberal diplomacy. Since the end of the XIXth century German legal
professionals were becoming more and more nationalist and conservative in outlook.
Lots of eminent lawers were calling for a return to more German form of Law instead
of a legal tradition marked by the spirit of the "Enlightenment".
As soon as 1921 when Hitler drew the draft of the NSDAP program with Dietrich
Eckart and Anton Drexler, he insisted in Article 19 that "a common German law
should replace the Roman law tradition" and during the 20s the 1871 Penal code
and the 1900 Civil Code were dismissed by party lawyers as "oriental", even Jewish
(sic). The idea beyond this new philosophy of law was as simple as dangerous : it
is historical reality that dictates the nature of legal systems and the State
makes the law it wants in its own image. It was opening the door to arbitrary
notions and to any revolutionary ideas deemed just and fair by the new masters. In
the case of Hitler and his henchmen, the prevalent idea was that the highest justice
was the preservation of the life of the nation.
greatest injustice of all times, imposed by a bunch of arrogant nations blinded by
false notions of liberal diplomacy. Since the end of the XIXth century German legal
professionals were becoming more and more nationalist and conservative in outlook.
Lots of eminent lawers were calling for a return to more German form of Law instead
of a legal tradition marked by the spirit of the "Enlightenment".
As soon as 1921 when Hitler drew the draft of the NSDAP program with Dietrich
Eckart and Anton Drexler, he insisted in Article 19 that "a common German law
should replace the Roman law tradition" and during the 20s the 1871 Penal code
and the 1900 Civil Code were dismissed by party lawyers as "oriental", even Jewish
(sic). The idea beyond this new philosophy of law was as simple as dangerous : it
is historical reality that dictates the nature of legal systems and the State
makes the law it wants in its own image. It was opening the door to arbitrary
notions and to any revolutionary ideas deemed just and fair by the new masters. In
the case of Hitler and his henchmen, the prevalent idea was that the highest justice
was the preservation of the life of the nation.
During the Weimar Republic however Germany
consolidated the traditional approach and established
herself as a Rechtsstaat, i.e. a state founded upon
general principles of respect for the law and the legal
protection of her citizens.
In 1922, the jurist Hans Kelsen published his Theory of
Pure Law whose basic ideas were that law is based on
sets of settled norms unaffected by the ebb and flow of
politics or the moral enthusiasms of the moment.
It was typically an anti-nazi point of view and in 1933 he
was removed from his job in Cologne and left for Geneva
where he stayed until the outbreak of WW2.
His rich legacy was turned by the Nazis as soon as they
came to power in 1933 : the principle that States were
bound by law became ridiculed and was destroyed.
consolidated the traditional approach and established
herself as a Rechtsstaat, i.e. a state founded upon
general principles of respect for the law and the legal
protection of her citizens.
In 1922, the jurist Hans Kelsen published his Theory of
Pure Law whose basic ideas were that law is based on
sets of settled norms unaffected by the ebb and flow of
politics or the moral enthusiasms of the moment.
It was typically an anti-nazi point of view and in 1933 he
was removed from his job in Cologne and left for Geneva
where he stayed until the outbreak of WW2.
His rich legacy was turned by the Nazis as soon as they
came to power in 1933 : the principle that States were
bound by law became ridiculed and was destroyed.
| Hans Kelsen (1881-1973) was born in Prague to Jewish parents. He moved to Vienna with his family when he was two years old. He studied law at the University of Vienna, taking his doctorate in 1906. In 1911, he achieved his habilitation in public law and legal philosophy and published in 1922 his first major work, Main Problems in the Theory of Public Law (Hauptprobleme der Staatsrechtslehre). Kelsen accepted a professorship at the University of Cologne in 1930. When the Nazis came to power in Germany in 1933, he was removed from his post and moved to Geneva, Switzerland and taught international law at the Graduate Institute of International Studies from 1934 to 1940. Later he moved to the USA where he pursued a brilliant career. |
In place the Nazis instilled the idea that "law is what is good and useful for the German
people" and the legal foundation of the State was reversed : law became overnight an
expression of the higher morality of the German race. Hence law was subordinate to
the will of the race and its political leadership. Notions like "racial healthy common
sense", "law is not the sole source to decide what is legal or illegal" appeared on the
lips of the political leaders but worse in the writing of prominent jurists.
Contrary to a widespread opinion, those sort of ideas were not the privilege of a small
Nazi elitist group but were supplied as well by academic lawyers like the very famous
Carl Schmitt who had made a name for himself in the 20s for his hostility to
parliamentary democracy. Schmitt publicly joined the NSDAP as soon as May 1933 hence
giving his imprimatur on Hitler's legal and constitutional ambitions. His ideas derived
largely from the XVIIth century English philosopher Thomas Hobbes who advocated an
indivisible and absolute supreme power. Schmitt wrote to the great joy of Hitler that
"the Führer is the highest judge of the nation and the highest lawgiver." He even
insisted in 1935 that "law is not some abstraction but should reflect the plan and the
aim of the lawgiver."
It is simply amazing that highly trained professionals could endorse such ideas and
could give to fanatical politicians like Hitler and his henchmen the permission to
establish a terror state and the reign of arbitrary. For Schmitt and his followers, the
leader who had the guts to seize the moment at times of national crisis and act with
iron decision should be applauded. What Schmitt actually did was to destroy what he
regarded as an outworn conception of legal right. Hitler was too happy to jump on the
band wagon.
people" and the legal foundation of the State was reversed : law became overnight an
expression of the higher morality of the German race. Hence law was subordinate to
the will of the race and its political leadership. Notions like "racial healthy common
sense", "law is not the sole source to decide what is legal or illegal" appeared on the
lips of the political leaders but worse in the writing of prominent jurists.
Contrary to a widespread opinion, those sort of ideas were not the privilege of a small
Nazi elitist group but were supplied as well by academic lawyers like the very famous
Carl Schmitt who had made a name for himself in the 20s for his hostility to
parliamentary democracy. Schmitt publicly joined the NSDAP as soon as May 1933 hence
giving his imprimatur on Hitler's legal and constitutional ambitions. His ideas derived
largely from the XVIIth century English philosopher Thomas Hobbes who advocated an
indivisible and absolute supreme power. Schmitt wrote to the great joy of Hitler that
"the Führer is the highest judge of the nation and the highest lawgiver." He even
insisted in 1935 that "law is not some abstraction but should reflect the plan and the
aim of the lawgiver."
It is simply amazing that highly trained professionals could endorse such ideas and
could give to fanatical politicians like Hitler and his henchmen the permission to
establish a terror state and the reign of arbitrary. For Schmitt and his followers, the
leader who had the guts to seize the moment at times of national crisis and act with
iron decision should be applauded. What Schmitt actually did was to destroy what he
regarded as an outworn conception of legal right. Hitler was too happy to jump on the
band wagon.
Furthermore in 1934 after the Night of the Long Knives Schmitt once more applauded
the execution of Röhm and his SA men and wrote an article in the journal of German
jurists in which he explained that "Hitler combined in his person both supreme political
and judicial power." The purge in his views became not a political murder of opponents
nor a crime punishable by law but an "expression of the highest justice dispensed by
the nation's highest judge." (sic). It was holy music to the ear of Adolf Hitler and the
justification of any other ulterior crimes.
One can only imagine the effect of such writings and public statements on the mind of
the average German citizen of the 20s and more especially of the 30s : if such
remarkable "Professor" endorsed criminal political practices of this sort, if an
ex-Chancellor like Kurt von Schleicher could be eliminated without the slightest protest
from the elite of the nation, everything was permissible and the Führer was permitted
anything by a nation of adoring subjects.
the execution of Röhm and his SA men and wrote an article in the journal of German
jurists in which he explained that "Hitler combined in his person both supreme political
and judicial power." The purge in his views became not a political murder of opponents
nor a crime punishable by law but an "expression of the highest justice dispensed by
the nation's highest judge." (sic). It was holy music to the ear of Adolf Hitler and the
justification of any other ulterior crimes.
One can only imagine the effect of such writings and public statements on the mind of
the average German citizen of the 20s and more especially of the 30s : if such
remarkable "Professor" endorsed criminal political practices of this sort, if an
ex-Chancellor like Kurt von Schleicher could be eliminated without the slightest protest
from the elite of the nation, everything was permissible and the Führer was permitted
anything by a nation of adoring subjects.
| Oswald Spengler (1880-1936) is best known for his book The Decline of the West in which he puts forth a cyclical theory of the rise and decline of civilizations. After Decline was published in 1918, Spengler produced his Prussianism and Socialism in 1920, in which he argued for an organic version of socialism and authoritarianism. He wrote extensively throughout World War I and the inter war period, and supported German hegemony in Europe. Spengler voted for the National Socialists in 1932 and hung a swastika flag outside his Munich home, and the National Socialists held Spengler as an intellectual precursor. But Spengler's pessimism about Germany and Europe's future, his refusal to support Nazi ideas of racial superiority, and his work the Hour of Decision, which is critical of the Nazis, gained him ostracism after 1933. He died in 1936. |
And effectively the twisting of the traditional German law by Hitler and his fellow
Nazis was widely accepted by the people and the professionals : in April 1933
wasting no time the Nazis sacked 120 out of 378 law academics on grounds of
race or political outlook who were replaced by younger colleagues who gleefully
accepted the changed legal system. If in 1933 there were only 9,943 judges in the
NSDAP, by 1942 there were 16,000. Furthermore 1,500 lawyers were purged in
1933, mostly Jews, and the remaining were required, like the Army, to make an
oath of direct fealty stating :"I swear to remain loyal to Adolf Hitler, the leader of
the German nation and people...."
Another big helper was Roland Freisler (pic above on left) who was State
Secretary and as soon as 1934 urged judges "to abandon impartiality in favour of
judgments made ONLY in the spirit of National Socialism." He reminded jurists
that even without a new criminal Code (whose promulgation was suspended
because of the war) "all legal concepts were to be handled consistently with the
highest possible life value for the Germanic community."
In practice, Germanic community meant Adolf Hitler, as its representative
figurehead. In 1934 another jurist named Majer wrote in "Grundlagen des
nationalsozialistischen Rechtssystems" that the law is an order from the Führer.
And nobody is going to be surprised to know that even Hans Frank, future Protector
of the General Government (ex-Poland) and head of the League of Jurists, said once
that "formerly we were in the habit of saying :this is right or wrong; today, we
must put the question accordingly: What would the Führer say?"
The consequences of such a state of mind were immense and double :
The rights of the individuals were therefore subordinate to the interests of the
collectivity as defined by the party (i.e. the Führer). Hence the individual was
nothing and the people (Volk) everything. In the IIIrd Reich, judges were even
encouraged to pronounce judgment contra legem if their racial consciousness
dictated it.
The second principle wanted that the law could define who could be considered as
part of the society and who should be excluded. As the racial element was prevalent
in the concepts, it soon became obvious that Jews were not a desirable part of the
Volk. Nevertheless the implications of this twisted legal theory were extensible to
the non Jews as soon as they were deemed dangerous for the society : simple
thieves became soon undesirable. A lawyer suggested that they were disloyal to
the Volk and as soon as 1935 any act deemed punishable by popular opinion even
though it was not defined as illegal could be prosecuted. It was the introduction in
the legal system of the most arbitrary notion of any judicial world : analogy, a notion
that had been prohibited until now in the German criminal code.
The ultimate aftermath of all this was simple and terrible : the law was made subject
to the arbitrary will of the supreme authorities of the State but its arbitrariness took
the disguise of the higher justice represented by the State, the Party and his Leader
Adolf Hitler. The whole thing being executed in the name and for the sake of
"people 's justice." Those crazy ideas did not all originated in the mind of Adolf Hitler
: they were the consequences of a post-WW1 collapsing and they had been
carpetbagged by intellectuals and philosophers since 1918. One of the most famous
of them was the German philospher Oswald Spengler who published in 1918 The
Decline of the West.
Nazis was widely accepted by the people and the professionals : in April 1933
wasting no time the Nazis sacked 120 out of 378 law academics on grounds of
race or political outlook who were replaced by younger colleagues who gleefully
accepted the changed legal system. If in 1933 there were only 9,943 judges in the
NSDAP, by 1942 there were 16,000. Furthermore 1,500 lawyers were purged in
1933, mostly Jews, and the remaining were required, like the Army, to make an
oath of direct fealty stating :"I swear to remain loyal to Adolf Hitler, the leader of
the German nation and people...."
Another big helper was Roland Freisler (pic above on left) who was State
Secretary and as soon as 1934 urged judges "to abandon impartiality in favour of
judgments made ONLY in the spirit of National Socialism." He reminded jurists
that even without a new criminal Code (whose promulgation was suspended
because of the war) "all legal concepts were to be handled consistently with the
highest possible life value for the Germanic community."
In practice, Germanic community meant Adolf Hitler, as its representative
figurehead. In 1934 another jurist named Majer wrote in "Grundlagen des
nationalsozialistischen Rechtssystems" that the law is an order from the Führer.
And nobody is going to be surprised to know that even Hans Frank, future Protector
of the General Government (ex-Poland) and head of the League of Jurists, said once
that "formerly we were in the habit of saying :this is right or wrong; today, we
must put the question accordingly: What would the Führer say?"
The consequences of such a state of mind were immense and double :
- the State was above the law
- the law was an instrument in the war against the enemies of the society
The rights of the individuals were therefore subordinate to the interests of the
collectivity as defined by the party (i.e. the Führer). Hence the individual was
nothing and the people (Volk) everything. In the IIIrd Reich, judges were even
encouraged to pronounce judgment contra legem if their racial consciousness
dictated it.
The second principle wanted that the law could define who could be considered as
part of the society and who should be excluded. As the racial element was prevalent
in the concepts, it soon became obvious that Jews were not a desirable part of the
Volk. Nevertheless the implications of this twisted legal theory were extensible to
the non Jews as soon as they were deemed dangerous for the society : simple
thieves became soon undesirable. A lawyer suggested that they were disloyal to
the Volk and as soon as 1935 any act deemed punishable by popular opinion even
though it was not defined as illegal could be prosecuted. It was the introduction in
the legal system of the most arbitrary notion of any judicial world : analogy, a notion
that had been prohibited until now in the German criminal code.
The ultimate aftermath of all this was simple and terrible : the law was made subject
to the arbitrary will of the supreme authorities of the State but its arbitrariness took
the disguise of the higher justice represented by the State, the Party and his Leader
Adolf Hitler. The whole thing being executed in the name and for the sake of
"people 's justice." Those crazy ideas did not all originated in the mind of Adolf Hitler
: they were the consequences of a post-WW1 collapsing and they had been
carpetbagged by intellectuals and philosophers since 1918. One of the most famous
of them was the German philospher Oswald Spengler who published in 1918 The
Decline of the West.
| Roland Freisler (1893– 1945) was a prominent and notorious Nazi German judge. He became State Secretary of Adolf Hitler's Reich Ministry of Justice and President of the Volksgerichtshof, a court set up outside constitutional authority. This 'court' handled political crimes against Adolf Hitler's dictatorial regime, notably the attempt against the Führer on the 20th of July 1944. |
Germany emerged from WW1 embittered by defeat with the
feeling she had not lost the conflict but was betrayed and that
harsh conditions of peace were imposed upon Her by allied
nations who were guilty of liberalism. Earlier in the XIXth century,
Marx had argued that all sins came from capitalism and German
intellectuals - supported by politicians and the German people
in its majority- thought that the woes of the nation were caused
by western liberalism whose moral values were intrinsically
inferior to German standards.
In 1918 the publishing of the Decline of the West by Spengler
launched a tsunami of speculations calling on German culture to
redeem Europe by taking the lead in moral revolution against
communism and capitalism. Another German philosopher, Ernst
Tröltsch (1865-1923), opposed the mechanistic humanitarian
morality of the West to the unique vitality of the German historical
and productive spirit.
The end of the line would be reached when some young Nazi
declared in 1935 that the only truth was what profited blood
and life of the race. It was the rejection of any form of
humanism that was deemed the mark of the weak as opposed to
the strong. Some theologian, like Michael Müller, even welcomed
the end of ethical relativism under Hitler and said that "life is not
happiness but self-sacrifice." Hitler could not expect better
assessment of his policies at a time when he prepared the
nation for war and supremacy in Europe. And the party
ideologue, Alfred Rosenberg, could without fear of being ridicule
write that strong men were strong because they were absolutely
hard men. In other words, a sadistic SS torturing a "racially bad"
Jew was only a strong man doing exactly what the State, the
Law and good Nazi morale were expecting from him. The vice
had become virtue. The path to the concentration camps was laid
down well before Hitler who only seized the opportunities
opened to him by a cohort of German philosophers, lawyers and
intellectuals.
Even if the moral certainties of the Nazis were not shared by all
their populations, the cost of ignoring them was extremely high :
inevitable punishment followed and hundred of thousands of
German were brought to their death, their imprisonment or their
destitution because they did not quite fit with the new moral
sense
.
In the same time, the warriors of this twisted morality were
lionized as heroes by the regime and Hitler who made martyrs of
the street brawlers and thugs who fought for his new order in
the 20s and fell for it. It was a moral inversion that made possible
the most murderous regime of the XXth century and allowed their
perpetrators to feel no sense of guilt after the war. For a Nazi
criminal like Rudolf Höss, commandant of Auschwitz concentration
lager, the higher morality dictated by the imperatives of history
and nature was regarded as distinct from the treatment of
conventional crimes.
Under Nazi law if you stole an egg from a farmer you were an
enemy of the nation but you were doing your duty if you were
pilfering Jewish assets, killing a Jew in cold blood, confiscating
Church's properties, murdering the priests who resisted and
killing the Generals who tried to get rid of Hitler, the supreme
lawgiver. It is called "the triumph of the thugs" or "the
supremacy of Evil".
feeling she had not lost the conflict but was betrayed and that
harsh conditions of peace were imposed upon Her by allied
nations who were guilty of liberalism. Earlier in the XIXth century,
Marx had argued that all sins came from capitalism and German
intellectuals - supported by politicians and the German people
in its majority- thought that the woes of the nation were caused
by western liberalism whose moral values were intrinsically
inferior to German standards.
In 1918 the publishing of the Decline of the West by Spengler
launched a tsunami of speculations calling on German culture to
redeem Europe by taking the lead in moral revolution against
communism and capitalism. Another German philosopher, Ernst
Tröltsch (1865-1923), opposed the mechanistic humanitarian
morality of the West to the unique vitality of the German historical
and productive spirit.
The end of the line would be reached when some young Nazi
declared in 1935 that the only truth was what profited blood
and life of the race. It was the rejection of any form of
humanism that was deemed the mark of the weak as opposed to
the strong. Some theologian, like Michael Müller, even welcomed
the end of ethical relativism under Hitler and said that "life is not
happiness but self-sacrifice." Hitler could not expect better
assessment of his policies at a time when he prepared the
nation for war and supremacy in Europe. And the party
ideologue, Alfred Rosenberg, could without fear of being ridicule
write that strong men were strong because they were absolutely
hard men. In other words, a sadistic SS torturing a "racially bad"
Jew was only a strong man doing exactly what the State, the
Law and good Nazi morale were expecting from him. The vice
had become virtue. The path to the concentration camps was laid
down well before Hitler who only seized the opportunities
opened to him by a cohort of German philosophers, lawyers and
intellectuals.
Even if the moral certainties of the Nazis were not shared by all
their populations, the cost of ignoring them was extremely high :
inevitable punishment followed and hundred of thousands of
German were brought to their death, their imprisonment or their
destitution because they did not quite fit with the new moral
sense
.
In the same time, the warriors of this twisted morality were
lionized as heroes by the regime and Hitler who made martyrs of
the street brawlers and thugs who fought for his new order in
the 20s and fell for it. It was a moral inversion that made possible
the most murderous regime of the XXth century and allowed their
perpetrators to feel no sense of guilt after the war. For a Nazi
criminal like Rudolf Höss, commandant of Auschwitz concentration
lager, the higher morality dictated by the imperatives of history
and nature was regarded as distinct from the treatment of
conventional crimes.
Under Nazi law if you stole an egg from a farmer you were an
enemy of the nation but you were doing your duty if you were
pilfering Jewish assets, killing a Jew in cold blood, confiscating
Church's properties, murdering the priests who resisted and
killing the Generals who tried to get rid of Hitler, the supreme
lawgiver. It is called "the triumph of the thugs" or "the
supremacy of Evil".
| For a lot of intellectuals, the Kaiser and his clique of European Royals represented after WW1 the epitome of old moral values responsible with Capitalism, Liberalism and International Jewry of the destructions and horrors of WW1. |
| Hitler invented nothing. He reformulated ideas spread out since the beginning of the XXth century by German philosophers and jurists and simplified them for the benefit of the German public. It was his real genius. |
| Rudolf Höss, boss of Auschwitz, never felt any sense of guilt or remorse for the horrible crimes he supervided during WW2 thanks to a complete moral inversion of the German law and psyche |