It is beyond doubt that the legal system established by the Nazi government in Germany between 1933-1945 represented a gross departure from the rule of law: the Nazis eradicated legal security and certainty; allowed for judicial and state arbitrariness; blocked epistemic access to what the law requires; issued unpredictable legal requirements; and so on. This introduction outlines the distorted nature of the Nazi legal system and looks at the main factors that contributed to this grave divergence.

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 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. (shrink)

. Can the label “law” apply to rules as amoral as the enactments of the Nazis? This question confronted the courts in Germany after 1945. In dealing with it, the judges had to take sides in the philosophical debate over the concept of law. In this context, the prominent voices of the legal philosophers Gustav Radbruch and Hans Kelsen could not go unheard. This paper draws on what could have been the “Radbruch‐Kelsen debate on Nazi Law.” In examining the (...) debate, it will argue for a substantive account of the morality of the law, as expressed in Radbruch's Formula. (shrink)

A first step towards an ‘ethnography of Nazi law’ is the exclusion of traditional views on this topic: first Radbruch’s qualification of the Nazi made after 1945 as an Unrechtsstaat, a t...

In this paper I am going to examine Kelsen’s legal positivism in the light of Nazilegal theory. My claim will be that Kelsen’s thesis that law and morality constitute two distinct normative spheres is highly plausible, but that some of his metaethical assumptions are seriously flawed.

In The Law of Blood, French historian Johann Chapoutot synthesizes an enormous number of writings from the Third Reich to give a rendering of the Nazi Weltanschauung—world-view—as both consistent a...

Jacques Derrida offers his recent commentary on the early career of Paul de Man as an urgent intervention in a discussion he fears is going awry. The most pressing danger he sees in the recent revelations is that they have played into the hands of de Man’s antagonists, who are now ready to denounce the whole of his career and even deconstruction itself. Against such indiscriminate critiques Derrida hurls the epithet: totalitarian. He is attempting to reseize the initiative in the (...) discussion and to reset the terms of the debate. His agenda extends across historical, theoretical, and political questions.He wants to affirm that a radical, indeed absolute break separates the later from the earlier de Man. He also wants to show that the young de man, however firmly committed to fascist ideology and however much an accomplice of the Nazis occupying Belgium, at the same time regularly distanced himself from that ideology and even undermined its meanings. Moreover, Derrida boldly takes up the challenge that these revelations have cast on the intellectual movement he and de Man have shaped. Can deconstruction come to grips with the political and intellectual history of its own leading American proponent? And can deconstruction in the process make a distinctive contribution to the understanding of fascism and intellectuals’ participation in it? John Brenkman is associate professor of English at Northwestern University. He is the author of Culture and Domination . Jules David Law is assistant professor of English at Northwestern University. He is currently working on a book-length study of the metaphors of surface, depth, and reflection in eighteenth- and nineteenth-century British prose. (shrink)

In Justifying Injustice Justifying Injustice: Legal Theory in Nazi Germany, Herlinde Pauer-Studer analyses the legal theory that Nazi jurists developed to justify the horrifying practices of the to...

In Anglo-American legal theory the lack of morality was often considered as the main problem of Nazi law. Bringing law and morality together thus seems to meet the challenge posed by the Nazi legal system. In this paper I argue that the mere unification of law and morality is not sufficient to cope with the distortions of Nazi law. By discussing the framework of the SS-jurisdiction and the case of the SS-judge Konrad Morgen I try to show (...) that in the Nazi legal system morality is so deformed that in such circumstances a judge’s aiming for justice has equivocal implications. My conclusion is that we should consider law and morality as two distinct normative spheres and approach the issue of Nazi law using a conception of legality that captures basic requirements of a rule-of-law system. (shrink)

In 1935, the Nazi government introduced what came to be known as the abrogation of the pro- hibition of analogy. This measure, a feature of the new penal law, required judges to stray from the letter of the written law and to consider instead whether an action was worthy of pun- ishment according to the ‘sound perception of the people’ and the ‘underlying principle’ of existing criminal statutes. In discussions of Nazi law, an almost unanimous conclusion is that (...) a system of criminal law ought not to contain legislation of this sort. This conclusion is often based on how the abro- gation relates to the normative claim that the law ought to be predictable. In particular, it has been argued that since the law ought to be predictable, and since this type of analogy legis- lation implied, caused or contributed to the diminution of the law’s predictability, this type of legislation ought to be prohibited. In this paper, we argue that this argument is not entirely correct. While we believe that the law ought to be predictable and that there is evidence for the claim that the Nazis’ intro- duction of analogical reasoning implied, caused, or contributed to a diminution of predictability, this fact is logically too weak to ground the conclusion that necessarily a penal system ought not to contain legislation of this kind. Despite the undeniable wickedness of the Nazi penal system, this type of analogical reasoning can be made consistent with the pre- dictability of the law. We argue that consistency of this sort depends on whether the use of analogy is supplemented by certain contextual background conditions. The occurrence of these conditions blocks an inference from the fact that the law ought to be predictable to the conclusion that a penal system ought not to allow for this type of analogical reasoning. (shrink)

Neo-Humanist Luc Ferry (1995) has compared deep ecology's declarations of intrinsic value in nature to the Third Reich's nature protection laws, which prohibit maltreatment of animals having "worth in themselves." Ferry's questionable approach fails to document the relationship between Nazi environmentalism and Nazi racism. German high art and mass media historically presented nature as dualistic, and portrayed Untermenschen as unnatural or inorganic. Nazi propaganda excluded Jews from nature, and identified traditional Jews as cruel to animals. Ferry's idealization (...) of Humanism under reports the pervasiveness of anti-Semitism in European thought, including the French Enlightenment. © 1999 Elsevier Science Inc. (shrink)

Should laws about sex and pornography be based on social conventions about what is disgusting? Should felons be required to display bumper stickers or wear T-shirts that announce their crimes? This powerful and elegantly written book, by one of America's most influential philosophers, presents a critique of the role that shame and disgust play in our individual and social lives and, in particular, in the law.Martha Nussbaum argues that we should be wary of these emotions because they are associated in (...) troubling ways with a desire to hide from our humanity, embodying an unrealistic and sometimes pathological wish to be invulnerable. Nussbaum argues that the thought-content of disgust embodies "magical ideas of contamination, and impossible aspirations to purity that are just not in line with human life as we know it." She argues that disgust should never be the basis for criminalizing an act, or play either the aggravating or the mitigating role in criminal law it currently does. She writes that we should be similarly suspicious of what she calls "primitive shame," a shame "at the very fact of human imperfection," and she is harshly critical of the role that such shame plays in certain punishments.Drawing on an extraordinarily rich variety of philosophical, psychological, and historical references--from Aristotle and Freud to Nazi ideas about purity--and on legal examples as diverse as the trials of Oscar Wilde and the Martha Stewart insider trading case, this is a major work of legal and moral philosophy. (shrink)

This paper details a combined graduate/undergraduate course on the Holocaust. This course was designed to cover the legal, social, political, and moral dimensions of the Holocaust, as well as to familiarize students with its significant historical details and persons. Special attention was devoted to the question of why the perpetrators of the Holocaust should be brought to justice, making connections to contemporary forms of prejudice and discrimination and emphasizing that such efforts at justice are not an issue between Jews and (...) Holocaust perpetrators but a matter of upholding the rule of law. The specifics of the legal cases brought against various Nazis in order to try them as war criminals were examined through both modern and contemporary theoretical frameworks (e.g. early legal positivism vs. decisionism), and other key philosophical themes were introduced throughout the term in order to provide frameworks for discussion and critique. The author reviews course requirements and discusses the implicit anti-Semitism expressed by students, concluding with a brief consideration of the value of such a course beyond the classroom. (shrink)

__ _Philosophy of Law: An Introduction_ provides an ideal starting point for students of philosophy and law. Setting it clearly against the historical background, Mark Tebbit quickly leads readers into the heart of the philosophical questions that dominate philosophy of law today. He provides an exceptionally wide-ranging overview of the contending theories that have sought to resolve these problems. He does so without assuming prior knowledge either of philosophy or law on the part of the reader. The book is structured (...) in three parts around the key issues and themes in philosophy of law: What is the law? – the major legal theories addressing the question of what we mean by law, including natural law, legal positivism and legal realism. The reach of the law – the various legal theories on the nature and extent of the law’s authority, with regard to obligation and civil disobedience, rights, liberty and privacy. Criminal law – responsibility and _mens rea_, intention, recklessness and murder, legal defences, insanity and philosophies of punishment. This new third edition has been thoroughly updated to include assessments of important developments in philosophy and law in the early years of the twenty-first century. Revisions include a more detailed analysis of natural law, new chapters on common law and the development of positivism, a reassessment of the Austin–Hart dispute in the light of recent criticism of Hart, a new chapter on the natural law–positivist controversy over Nazi law and legality, and new chapters on criminal law, extending the analysis of the dispute over the viability of the defences of necessity and duress. (shrink)

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. (shrink)

Konrad Morgen: The Conscience of a Nazi Judge recounts the wartime career of Georg Konrad Morgen (1909–1982), a judge who prosecuted crimes committed by members of the SS in Nazi concentration camps, including Buchenwald, Dachau, and Auschwitz. In 1943, Morgen discovered the existence of gas chambers at Auschwitz-Birkenau. He tried to throw sand in the works by prosecuting concentration camp officials for lesser crimes. He charged the chief of the Auschwitz Gestapo with for 2,000 murders, and even sought (...) an arrest warrant for Adolf Eichmann. Yet he worked within the ethos of the SS and continued to defend its reputation after the war. The book is a moral biography of Morgen, focusing on how he felt, thought, and deliberated about the moral challenges of his unique position. It explores Morgen’s moral and legal reasoning by drawing on his wartime papers as well as his postwar interrogations and testimonies at war-crimes trials. What emerges is a case study in moral complexity. (shrink)

Genocide as a part of nation or ethnic group extermination process is not a well-defined concept. Its meaning is understood intuitively. When law intervenes, the issue of defining the term comes back. Nevertheless, the Polish nation has been recognized as subjected to genocide activities during the Second World War by the Nazi Germany and Soviet Union. The paper focuses on the genocide against mainly one group of Poles that is to say foresters. The martyrologic evidence proves that foresters were (...) an occupation group which for a variety of reasons suffered most. The research carried out in this respect by the National Forests in Poland has revealed that over 20% of pre-war staff of the institution actually lost their lives. They were killed by the German and Soviet occupiers, as well as the Ukrainian Insurgent Army. In the eastern parts of Poland foresters and their families were deported and sent to various labour and extermination camps e.g. in Siberia. The aim of the paper is to present the scale of genocide with the main emphasis on genocide against foresters. The definition of genocide provided by Lemkin, who coined the term, is a starting point for the analysis. The main research methods included the analysis of pertinent literature and source materials as well as the semiotic analysis of genocide circumstances. The thesis put forward by the authors is that foresters due to their education, practical skills, professional experience and insight knowledge turned out to be the group especially vulnerable and subjected to extermination on purpose. (shrink)

The fundamental importance of theology in the work of Carl Schmitt has been the subject of much recent literature on this controversial figure. However, there has been little consensus on the precise nature of Schmitt's own political theologydecisionisminstitutional thinking,” in order to reveal the theological basis for his understanding of the new regime. I will then argue that Schmitt's institutional approach had in fact always been central to his earlier, better-known writings on law and the state. Schmitt's concept of the (...) institution, which had roots in French legal theory, grounded a political theology that was in the end less a metaphysical approach to the state than one that drew on the concrete example of the legal institutional order of the Catholic Church. (shrink)

This paper aims to confront two notions that have acquired a particular importance in contemporary reflections on the law: the notion of “un-law” (“Unrecht” or “non-droit”), that was constructed after the second WW in order to think about the specific nature of “Nazi law”; and the notion of “state of exception” (“Ausnahmezustand” or “état d’exception”), which is now commonly tied up with the idea of juridical anomie. This confrontation extends the analysis that is especially exposed by the very concept (...) of “un-law”, in order to think about the possibility of a “monstrous law” in a functional way, and not in a substantial one. In return, this new light will help to think of the discontinuities between a “state of exception” and a “state of un-law”. (shrink)

A novel method of teaching military medical ethics, medical ethics and military ethics in the Israel Defense Force (IDF) Medical Corps, essential topics for all military medical personnel, is discussed. Very little time is devoted to medical ethics in medical curricula, and even less to military medical ethics. Ninety-five per cent of American students in eight medical schools had less than 1 h of military medical ethics teaching and few knew the basic tenets of the Geneva Convention. Medical ethics differs (...) from military medical ethics: the former deals with the relationship between medical professional and patient, while in the latter military physicians have to balance between military necessity and their traditional priorities to their patients. The underlying principles, however, are the same in both: the right to life, autonomy, dignity and utility. The IDF maintains high moral and ethical standards. This stems from the preciousness of human life in Jewish history, tradition and religious law. Emphasis is placed on these qualities within the Israeli education system; the IDF teaches and enforces moral and ethical standards in all of its training programmes and units. One such programme is ‘Witnesses in Uniform’ in which the IDF takes groups of officers to visit Holocaust memorial sites and Nazi death camps. During these visits daily discussions touch on intricate medical and military ethical issues, and contemporary ethical dilemmas relevant to IDF officers during active missions. (shrink)

Carl Schmitt sees the 1933 Nazi seizure of power as a revolution that inaugurates an entirely new era of political-legal order. Analyzing Schmitt’s rarer Nazi-texts, diaries, and correspondence, I argue that from 1933 to 1936 Schmitt attempts to theorize the Nazi revolution by developing an entirely new political language of Nazism, cleansed from non-German ways of thinking, especially nineteenth-century liberalism. I focus on three conceptual transformations through which Schmitt understands the remaking of the German state: The shift (...) from the liberal democratic neutral state to a new one-party state or a Führer-state dominated by a movement – a shift symbolized by the “death of Hegel”; the transformation of sovereign power into Führertum, represented by the symbolical deaths of Jean Bodin and Thomas Hobbes, whose thought cannot comprehend the totality of the Nazi movement, and the perversion of the liberal-democratic equality before the law to the völkisch equality of the race as the basis of all Nazi political–legal life. Criticizing previous interpretations of Schmitt’s Nazi thinking, I demonstrate that when Schmitt abandons his own decicionist thought in favor of concrete order thinking in 1933/1934 the idea of race becomes the basis of his political–legal thought. (shrink)

The stock of natural law has risen in recent years. It is partly due to growing dissatisfaction with the elucidations offered by the legal positivists, and partly because sceptical arguments have lost their edge. In the heyday of logical positivism it was easy to say ``I don't understand what you mean by `right' . . .'' and break off discussion without more ado; but, as the bounds of unintelligibility increased and came to encompass almost the whole of human knowledge, an (...) inability to understand became not so much a boast as a confession. Many people may still be unclear about the metaphysical foundations of the moral sciences; but we are disinclined to doubt that they are serious disciplines, or to think that they need to be, or even could be, reconstructed without any moral element. Moreover, the events of this century have begun to penetrate the academic consciousness. Having witnessed the terrible tyrannies of the Nazis, the Communists and the Third World, we find it difficult to divorce our thinking about law from our thinking about morals. Although 'duty' is still an unfashionable word, people are constantly talking about the rights that are being denied them and the wrongs being inflicted on them. And these rights claimed and wrongs resented are grounded not on some existing legal enactment or a one-time social contract, but on the nature of man and the nature of the state, and are therefore, although very different from their mediaeval articulation, arguments of natural law. (shrink)

The sole available comprehensive history of social law and the model of social welfare in Germany. The book explains the origins since the medieval times, but concentrates on the 19th and 20th centuries, especially on the introduction of the social insurance 1881-1889, of the expansion of the system in the Weimar Republic, under the Nazi-System and after World War II in the FRG and the GDR. The system of social welfare in Germany is one of the pillars of economic (...) stability. (shrink)

Scholarly and political interest in the controversial 20th Century German thinker Carl Schmitt has exploded in the last twenty years. This volume, focusing directly on Schmitt’s complex ideas about law, situates his views within broader debates about the rule of law and its fate, taking seriously his Nazi-era political and legal writings.

The Nuremberg Trial is of paramount importance, first of all, in historic and legal terms, as it laid the foundations for an international justice system that had no precedent in history, but also in linguistic terms, as it marks the very beginning of simultaneous interpretation and the modern profession of interpreting. By analysing the testimonies of those exceptional interpreters who were ensuring the communication in four languages before the International Military Tribunal in Nuremberg, we will highlight the linguistic and technical (...) challenges they were facing as well as the deeply personal struggles they had to overcome, in particular on a psychological and ethical level, while taking part in a worldwide historic event. The aim of this article is to deepen the current state of research on simultaneous interpretation, but above all to pay tribute to these remarkable interpreters and translators who made history with their pioneering work and their legendary accomplishments in Nuremberg.RésuméLe procès de Nuremberg revêt une importance capitale non seulement sur le plan historique et juridique, car il permet de jeter les bases d’une justice internationale sans précédent dans l’histoire, mais aussi sur le plan linguistique, car il marque l’avènement de l’interprétation simultanée et de la profession moderne d’interprète. L’analyse des témoignages de grands interprètes assurant la communication en quatre langues devant le Tribunal Militaire International à Nuremberg nous permet de mettre en exergue des problèmes linguistiques, les difficultés techniques et les obstacles liés à la nature humaine, tant psychologiques qu’éthiques auxquels étaient confrontés les interprètes et les traducteurs assistant à cet événement à l’échelle mondiale. Le présent article vise à approfondir l’état actuel des recherches sur l’interprétation simultanée, mais surtout à rendre hommage aux interprètes et traducteurs pionniers dont le travail remarquable à Nuremberg a marqué l’histoire du métier. (shrink)

It has long been held that humans need government to impose social order on a chaotic, dangerous world. How, then, did early humans survive on the Serengeti Plain, surrounded by faster, stronger, and bigger predators in a harsh and forbidding environment? Pirates, Prisoners, and Lepers examines an array of natural experiments and accidents of human history to explore the fundamental nature of how human beings act when beyond the scope of the law. Pirates of the 1700s, the leper colony on (...) Molokai Island, prisoners of the Nazis, hippie communes of the 1970s, shipwreck and plane crash survivors, and many more diverse groups--all existed in the absence of formal rules, punishments, and hierarchies. Paul and Sarah Robinson draw on these real-life stories to suggest that humans are predisposed to be cooperative within limits. What these "communities" did and how they managed have dramatic implications for shaping our modern institutions. Should today's criminal justice system build on people's shared intuitions about justice? Or are we better off acknowledging this aspect of human nature but using law to temper it? Knowing the true nature of our human character and our innate ideas about justice offers a roadmap to a better society. (shrink)

This article assesses interactions between American and German eugenicists in the interwar period. It shows the shifting importance and leading roles of German and American eugenicists: while interactions and exchanges between German and American eugenicists in the interwar period were important and significant, it remains difficult to establish direct American influence on Nazi legislation. German experts of race hygiene who advised the Nazi government in drafting the sterilization law were well informed about the experiences with similar laws in (...) American states, most importantly in California and Virginia, but there is little evidence to suggest they depended on American knowledge and expertise to draft their own sterilization law. Rather, they adapted a body of thought that was transnational by nature: suggesting that the Nazis’ racial policies can be traced back to American origins over-simplifies the historical record. Still, the ‘American connection’ of the German racial hygiene movement is a significant aspect of the general history of eugenics into which it needs to be integrated. The similarities in eugenic thinking and practice in the USA and Germany force us to re-evaluate the peculiarity of Nazi racial policies. (shrink)

In 1979, on the thirty-ninth anniversary of the closing of the Franco-Spanish border at Port Bou and one day before the anniversary of the suicide of Walter Benjamin, Jacob Taubes and Carl Schmitt opened the Bible in the Sauerland. The two men sat down in Plettenburg to read St. Paul's Epistle to the Romans, chapters 9-11. As if in memory of Benjamin, they spoke “under a priestly seal”: Schmitt, the most important state law theorist of the twentieth century, a Roman (...) Catholic and sometime member of the Nazi Party; Taubes, a Jewish philosopher of a Messianic and oddly left-wing disposition.…. (shrink)

In his seminal work The Concept of Law, H. L. A. Hart observed that the ‘law of every modern state shows at a thousand points the influence of both the accepted social morality and wider moral idea...

In the pathbreaking essays collected here, Neumann and Kirchheimer demonstrate that the death of democracy and the rise of fascism during the first half of the twentieth century suggest crucial lessons for contemporary political and legal scholars. The volume includes writings on constitutionalism, political freedom, Nazism, sovereignty, and both Nazi and liberal law. Most important, the Frankfurt authors point to the continuing efficacy of the rule of law as an instrument for regulating and restraining state authority, as well as (...) ominous evidence of the rule of law's fragility in modern liberal democracy. (shrink)

Justice at Nuremberg traces the history of the Nuremberg Doctors' Trial held in 1946-47, as seen through the eyes of the Austrian bliogemigrbliogé psychiatrist Leo Alexander. His investigations helped the United States to prosecute twenty German doctors and three administrators for war crimes and crimes against humanity. The legacy of Nuremberg was profound. In the Nuremberg code--a landmark in the history of modern medical ethics--the judges laid down, for the first time, international guidelines for permissible experiments on humans. One of (...) those who helped to formulate the code was Alexander. Justice at Nuremberg provides a detailed insight into the origins of human rights in medical science and into the changing role of international law, ethics and politics. (shrink)

The underlying theme of this article is how a successor state should deal with its past. It considers whether a state that is committed to the rule of law may depart from it in order to deal with problems left to it by its predecessor regime. Specifically, may it use retroactive legislation to punish informers who collaborated with a predecessor police state? Lon Fuller's formulation of the canons of the rule of law as an internal morality of law is expounded (...) as well as his notion of legal pathology as symptomatic of departure from the canons' requirements. Various problems inherent to the implementation of the rule of law are examined, such as the effect of the passage of time on reasonable expectations. While legal pathology is always a matter of degree, police states are shown to suffer seriously from it. Among the examples discussed are Nazi Germany and Communist East Germany, though it is granted that there are moral differences between them. In the course of the discussion, a response is made to some contemporary critiques of the rule of law. Although it would be difficult to formulate a retroactive law for punishing informers, it is argued that such a law may be the best way for a successor state to express a moral judgment on its past. Diesem Artikel liegt die Frage zugrunde, in welcher Weise ein Nachfolge-Staat mit seiner Vergangenheit umgehen sollte. Es wird untersucht, ob ein Staat, der sich der Idee des Rechtsstaats verpflichtet fühlt, von dieser Idee abrücken darf, um mit den Problemen umzugehen, die ihm von seinem Vorgänger-Staat hinterlassen worden sind. Insbesondere wird gefragt, ob ein solcher Staat zu dem Mittel rückwirkender Gesetzgebung greifen darf, um Denunzianten zu bestrafen, die mit einem vorangehenden Polizeistaat kollaboriert haben. Lon Fullers Formulierung der Prinzipien eines Rechtsstaats im Sinne einer internen Moralität des Rechts wird ebenso erläutert wie sein Begriff von rechtlicher Pathologie als Symptom für ein Abgehen von den Anforderungen der genannten Prinzipien. Verschiedene Schwierigkeiten, die mit der Verwirklichung des Rechtsstaats entstehen, werden näher untersucht, so etwa die Auswirkungen des Zeitablaufs hinsichtlich vernünftiger Erwartungen . Wenngleich rechtliche Pathologie immer eine Frage des Grades ist, kann doch gezeigt werden, daß Polizeistaaten ernstlich an ihr leiden. Unter den diskutierten Beispielen sind Nazi-Deutschland und das kommunistische Ostdeutschland, obwohl zugegeben werden muß, daß es zwischen diesen moralische Unterschiede gibt. Im Verlauf der Untersuchung wird zudem auf einige gegenwärtige kritische Stellungnahmen zum Rechtsstaat erwidert. Obwohl es schwierig wäre, ein rückwirkendes Gesetz zur Bestrafung von Denunzianten zu formulieren, wird doch die These vertreten, daß ein derartiges Gesetz der beste Weg für einen Nachfolge-Staat sein könnte, ein moralisches Urteil über seine Vergangenheit zum Ausdruck zu bringen. (shrink)

A counter history of the birth of bioethics, which focuses on the dissenters and whistleblowers who challenged law and institutions rather than simply the development of new technologies.

This article deals with the construction and performance of antisemitism in Nazi children’s books. It provides an explorative discourse analysis of _Trust No Fox_ as reported (Bauer, Trau keinem Fuchs auf grüner Heid und keinem Jud bei seinem Eid! Ein Bilderbuch für Gross und Klein, Stürmer-Verlag, Nuremberg, 1936) and _The Poisonous Mushroom_ as reported (Hiemer, Der Giftpilz—ein Stürmerbuch für Jung u. Alt, Stürmer-Verlag, Nuremberg, 1938) through the lens of Critical applied legal linguistics (CrALL). It seeks to elucidate how ‘Jewishness’ (...) is constructed in the two books, with a view to enhancing our understanding of the intertextual and interdiscursive embeddedness of anti-Semitic rhetoric generally and nomination and predication strategies specifically. To this end, a specialised corpus of 10,002 tokens, 2,345 types and 43 illustrations was compiled. Subsequently XML annotation was applied with the data being parsed into headings, sentences and/or lines. It was found that the books follow a Jewish/non-Jewish dichotomy, consistently referring to breaches of custom, morality, religion and law. Both works purport to provide descriptive accounts of ‘Jews as they are,’ when, in fact, they generate the normative illusion of ‘Jews as they ought to be’ according to Nazi ideology. It is suggested to use the insights gained into the anti-Semitic rhetoric of children’s books to detect, describe and critique patterns of anti-Semitic rhetoric today. (shrink)

Wischik presents an extensive reply to our paper on conscientious objection, which explores the implications of distinguishing ‘medical acts’ from ‘socioclinical acts’. He provides an extensive legal analysis of the issues surrounding conscientious objection, drawing on the concepts of professional practice and consequentialism. Invoking some of these concepts, we respond and demonstrate that Wischik does not seriously engage with our argument. Instead, he merely proffers his preference for legal positivism, which – when viewed as the fount of justice (as Wischik (...) seems to hold) instead of a tool in its service – necessarily bases rightness on might rather than truth. We also argue that in several important areas, Wischik is factually mistaken. (shrink)

Over the last three decades, the art market has undergone a remarkable transformation. Before the 1990s, artworks were sold with hardly any concern about whether they had been stolen or looted, whereas now any reputable gallery or auction house checks the “provenance” of any substantial work before sale. This transformation reflects interlocking changes in law, norms, and institutions. New York’s and more broadly the United States’ assertion of jurisdiction and application of U.S. substantive law has destabilized title to stolen and (...) looted goods worldwide because American statutes of limitations generally provide weaker protection for those who possess stolen or looted goods even in good faith. Application of American law has had a profound effect, especially for the high end of the market, because European or Asian investors who purchase art outside of the U.S. may eventually want to sell or display their works in the U.S. Defective title under American law thus affects prices worldwide. The tightening and broader application of American law reflects both longstanding legal principles and changes in social norms towards the redress of historical wrongs, most notably prominent campaigns relating to art confiscated or sold under duress in Nazi Germany. New institutions, most importantly searchable databases recording stolen and looted art such as the Art Loss Register, are also changing perceptions about minimum standards for good faith purchase, which in turn affects both social norms and court cases. These new norms, induced by both legal changes and better information, have influenced the market even for less valuable art, for which sale or display in the U.S. is not a relevant consideration and for which the threat of costly legal action is not credible. The fact that social and institutionalized norms play an important role in protecting original owners is probably good, because norms and institutions can be effective even where law is not and often do so at lower cost. (shrink)

Scheuerman’s book is one of the handful of significant attempts to rethink Schmitt’s work systematically over the past four decades. In so doing, he raises three key questions for me. First, is Schmitt’s work a sincere contribution to legal and political theory, or an attempt to argue for setting the rule of law aside for authoritarianism, that is, an instrumental critique of indeterminacy? Second, to what extent is Schmitt – critical of the ‘bourgeois’ rule of law, critical of globalization – (...) really a thinker defending capitalism? Can he really be associated with the Ordoliberals (even if they adopted his arguments from 1931 to 1932 in their own writing of the time)? Third, to what extent were Schmitt’s early contributions to National Socialist law aimed at responding to legal indeterminacy, and to what extent did they in fact point towards a radicalism of German law within the Nazi system, especially insofar as they endorsed making decisions based on the principles of justice of the Nazi state – and potentially against the express language of statutes? (shrink)

This paper seeks to establish a connection between the existence of a legal system and the ideal of the rule of law. Its point of departure is the phenomenon of a transitional regime that is attempting to restore or institute the rule of law. Lon Fuller's formulation of the canons of the rule of law as an internal morality of law is expounded as well as his notion of legal pathology as symptomatic of departure from the canons' requirements. The existence (...) of a legal system, it is argued, is a matter of degree, covariant with the degree to which the rule of law is realized. Problems inherent to the implementation of the rule of law are examined, such as the effect of the passage of time on reasonable expectations. While legal pathology is always a matter of degree, police states are shown to suffer seriously from it. Among the examples discussed are Nazi Germany and Communist East Germany, though it is granted that there are moral differences between them. Finally, a response is made to some contemporary critiques of the rule of law. (shrink)

ABSTRACT This article offers a new reading of Carl Schmitt and his Nazi engagement by chronologically examining the changing uses of Roman law in his Weimar and Nazi thought. I argue that Schmitt’s different ways of narrating the modern reception of Roman law disclose, first, the Nazification of his thought in the spring of 1933, and second, the partial and apologetic de-Nazification of his thinking in the 1940s. While Schmitt’s Weimar-era works are defined by a positive use of (...) Roman imagery, ranging from Schmitt’s support to the Catholic Church to his endorsement of Benito Mussolini’s ‘total state’ in Italy, Schmitt’s Nazi writings from 1933 to 1936 describe the reception of Roman law as an anti-German virus that must be overcome by the Nazi movement. This shift mirrors Schmitt’s transformation from an authoritarian thinker sympathetic to Italian Fascism into a devoted Nazi. However, once Schmitt begins to see that Germany will lose World War II, he recalibrates his position. While Schmitt’s earlier Nazi writings offered a negative estimation of the historical school of Friedrich Carl von Savigny, in his 1943/44 book on European legal science, Schmitt portrays Savigny as the paradigmatic European, whose work opens the path for a renewed legal science. (shrink)

The present article analyses the so-called ‘crime of denial’ recently established in Article 1702 of the Lithuanian Criminal Code. It describes how this crime was introduced in the Lithuanian Law, and the reasons for its present form and challenges. The crime has been applied in two instances (Stankeras case and Paleckis case). The author discusses these two instances of application, critically reviews the arguments of the Prosecutor’s Office and of the court of first instance and shows that at least in (...) the first cases of application of this crime, its objectives and particularities are misunderstood. (shrink)

Millions of Jews who were committed to the Halacha, the Jewish code of law, were under Nazi rule and control during the Second World War. Various sources indicate that during the Holocaust, such Jews petitioned rabbis and Halacha sages with questions on halachic matters, both of a ritual nature as well as a legal nature. Due to the tremendous profusion during the Holocaust of situations in which the matter of preferring one life over another arose, one would expect to (...) find an abundance of halachic questions dealing with subjects related to this matter. There are two main situations in which the matter of preferring one life over another emerges. The one typical case involves saving the life of a person in peril, where the central question that arises is whether there is a duty to endanger oneself in order to save the life of another, whether there is a prohibition on doing this, or whether this is permitted and, perhaps even recommended, but not a duty per se. The second typical instance is when a power-wielding entity with authority demands that someone be handed over and if this is not complied with, another person will be harmed. A great deal of comprehensive discussion was devoted to these two sitituations in the halachic sources throughout the ages, beginning from the period of the Talmud and thereafter. These matters were given particularly prominent and thorough consideration in the teachings of the halachic sages of Poland during the period in which the Jews enjoyed broad judicial and community autonomy. These sources could have served the halachic,sages during the Holocaust, the overwhelming majority of whom were to be found in Poland and the neighboring countries in Eastern Europe. However, most surprisingly, we have almost no evidence of any real hcilachic grappling with situations of weighing one life against another during the Holocaust. The author maintains that the reason for this silence does not derive from a massive loss of testimonies during the Holocaust, but, rather stems from the fact that the Holocaust is a "black hole" in the human experience. In the face of this experience, created by the Germans, even the Halacha, which regulates totally the life of the observant Jew, stood dumbfounded, regarding it as a Singularity, in the physics sense of the term - that is to say, a situation in which defined laws and legal rules cease to exist. (shrink)

This article seeks to investigate the role that a symbol—connected to a legal event and a collective trauma—has in the construction of a past imaginary. It begins with a theoretical reflection on the role of the symbol as proposed by Juri Lotman and the function of repetition in the consolidation of collective memory. It subsequently focuses on the semiotic resonance of one specific object: the bulletproof cabin of the Nazi criminal Adolf Eichmann, used during his trial in Jerusalem, in (...) 1961. I consider the ‘afterlives’ of this object, examining the different ‘remakes’ of Eichmann’s cabin in several mediatic and artistic contexts, focusing on the modalities that have anchored it to the post-1961 imaginary of the perpetrator and the legal consequences of his actions. To do so, the article proposes a typology of uses of the cabin, identifying the different nuances of its representation and how they encapsulate the thorny issues surrounding that infamous legal event. (shrink)

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. (shrink)

The Jewish leftist lawyer Ernst Fraenkel was one of twentieth-century Germany's great intellectuals. During the Weimar Republic he was a shrewd constitutional theorist for the Social Democrats and in post-World War II Germany a respected political scientist who worked to secure West Germany's new democracy. This book homes in on the most dramatic years of Fraenkel's life, when he worked within Nazi Germany actively resisting the regime, both publicly and secretly. As a lawyer, he represented political defendants in court. (...) As a dissident, he worked in the underground. As an intellectual, he wrote his most famous work, The Dual State – a classic account of Nazi law and politics. This first detailed account of Fraenkel's career in Nazi Germany opens up a new view on anti-Nazi resistance – its nature, possibilities, and limits. With grit, daring and imagination, Fraenkel fought for freedom against an increasingly repressive regime. (shrink)

Modern scholars and bioethicists continue to learn from the Holocaust. Scholarship and history show that the authoritarian Nazi state limited and steered the development and power of professions and professional ethics during the Holocaust. Eliminationist anti-Semitism drove German professions and many professionals to join in policies and programs of mass deportation and ultimately genocidal mass murder, while also excluding many professionals from paid work. For many physicians and other medical professionals, humane and truly ethical practices were limited by constrained (...) professional autonomy and coercive state laws. Education and research in natural sciences were distorted by applications of racist eugenic policies and practices. In law schools and legal professions, professionals were rewarded as judgmental enforcers of state policies, often working with limited independent agency and in the public sphere. Mass harm and mass crimes were therefore perpetrated in accordance with Nazi laws and policies, incorporating professions and professionals into destructive practices, along with other occupational groups. (shrink)

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 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. (shrink)

Terrence Malick’s 2019 film A Hidden Life explores the ethical and political problem of refusal as an act and utterance of “not doing” violence and injustice that is expected. The film offers a nuanced and poetic depiction of Austrian peasant Franz Jägerstätter (1907–1943), who refused to give an oath of loyalty to Hitler ( Führereid), and was subsequently imprisoned and executed under the Nazi laws criminalizing conscientious objection as an “offence of sedition.” We argue that Malick complicates the question (...) of what it means to rise in defiance against power by locating Jägerstätter’s refusal not in religious dogma or a position of righteousness, but depicting it as a lived experience infused with affect, hesitation and doubt. We analyze the ethics and politics of refusal in A Hidden Life, focusing on the ways in which Malick depicts the possibility of leading an ethical life in an authoritarian state. This possibility concerns, first, the question of what alternatives emerge from the negative gestures of noncompliance, withdrawal or refusal and the question of enduring and, second, undergoing suffering, rather than imposing it on others. Situating our reading of Malick’s film in a philosophical dialogue with Michel Foucault’s writings on revolt and with Hannah Arendt’s reflections on responsibility in a dictatorship, we argue that Malick’s philosophy of refusal encompasses both the negative registers of refusal and articulates its affirmative, relational and testimonial dimensions in relation to history. This is because Malick's Jägerstätter undertook a very specific act of refusal – that of refusing to “make others suffer” (and chose instead to suffer himself). We conclude by drawing attention to three key presences in the film; nature, children and the wife, Fani, who turn the negative power of refusal into an affirmative gesture of companionship, co-presence and witnessing. (shrink)

Recht als zwaard en schild: Fraenkels Dual State en de rechtspraktijk in het Derde Rijk De laatste jaren kan het werk van Ernst Fraenkel op hernieuwde belangstelling rekenen. Dit review essay bespreekt zijn magnus opum The Dual State waarin Fraenkel de rechtspraktijk in nazi-Duitsland analyseerde, evenals het boek The Remnants of the Rechtsstaat: An Etnography of Nazi Law over Fraenkels leven en werk, geschreven door Jens Meierheinrich. In The Dual State laat Fraenkel zien hoe de rechtspraktijk in (...) class='Hi'>nazi-Duitsland een tweeledige vorm aanneemt, waarin het recht enerzijds zijn geldigheid behoudt, maar anderzijds onderworpen is aan de politieke wil van de machtshebbers. Op deze manier nuanceert Fraenkel op belangrijke wijze het gangbare begrip van de rol van het recht en het rechtspositivisme in het Derde Rijk. Ook biedt zijn werk relevante aanknopingspunten voor de hedendaagse studie van illiberale en autoritaire regimes. (shrink)