Law and Lawlessness in Nazi Germany, Gao Yangon, Commercial Press, June 2024, ISBN 978-7-100-23450-4
About the Author
Gao Yangon, associate professor of the Department of Legal History of the Law School of the Chinese People's University and a visiting scholar at the Law School of the University of Zurich, Switzerland, has long been engaged in the research of European legal history, including ancient Greece law, Roman law, medieval city law and feudal law in Western Europe, and modern Germany law.
Introduction
The Third Reich used a high degree of rationality to criticize the modern rule of law established in the Weimar era, infinitely magnified the symbolic meaning of the national community and the political state, and reduced the rights and private space of individual citizens, creating an unprecedented totalitarian ruling order that could only be characterized as "lawless" in any era. Law and legal man played a rather "active" role in this comprehensive process of social transformation initiated by the Nazis (although their status as "victims" was often emphasized) and led to fundamental changes in Germany's jurisprudence, legal history, public law, private law, criminal law, labour law and social law, judicial organization and judicial procedure, legal education and research during this period. It was only after the complete liquidation of Nazism that these areas were partially reshaped in accordance with the "proper meaning" of the Weimar Constitution. This book seeks to present a panoramic view of Nazi Germany's use of law and legal man to transform society, and provokes deep reflection on the fragility of the modern rule of law itself: there may be only half a step between "law" and "lawlessness".
directory
preface
Introduction: The Law of Lawlessness
Chapter 1 From the Weimar Republic to the Third Reich
1. The duality of the temporal dimension
2. The duality of the spatial dimension
III. The Weimar Republic that collapsed from within
Fourth, the Nazi seizure of power and its political transformation
Chapter II: The Integral Transformation of Nazi Jurisprudence
I. Historical Reflections on Nazi Jurisprudence
2. Nazi jurisprudence: the reshaping of values
3. Nazi jurisprudence: methodological transformation
IV. The History of Nazi Jurisprudence and the Historiography of Law in Contemporary Europe
Chapter III: Public Jurisprudence in Nazi Germany
1. The national jurisprudence of Germany during the Weimar period
2. The Kerreuth and Schmitt's "Rule of Law" Debate
3. The Nazis' destruction of the "rule of law".
4. Administrative Law and Administration during the Nazi Period
5. Chairs, periodicals and societies of public law during the Nazi period
Chapter IV International Jurisprudence of Nazi Germany
First, the international environment of Nazi Germany before the war
II. The Discipline of International Law and Its Ideology
3. From sovereign equality to the theory of "big space".
Fourth, the duality of Nazi international law
Chapter V: Criminal Law and Criminal Law of Nazi Germany
1. The collapse of the principle of legality of crimes
2. The overall turn of Nazi criminal law
3. Failed criminal law reform plans
4. Separate criminal legislation in the Third Reich
Chapter VI Civil and Private Law in Nazi Germany
1. Comprehensive transformation of civil law theory
II. The overall characteristics of civil legal practice
III. Ownership and Expropriation during the Nazi Period
4. Marriage and inheritance laws during the Nazi period
5. The plan to compile the "People's Civil Code" has failed
Chapter VII Economic, Labor and Social Law of Nazi Germany
1. The economic system and economic policy of the Third Reich
2. Operational autonomy and macroeconomic regulation and control
3. The "business leader-follower" model of labor law
4. Social Security Law during the Nazi Period
Chapter VIII Legal Education and the Judicial System in Nazi Germany
1. Legal education and the cultivation of legal professionals
2. Courts and judges during the Nazi period
3. The unconventional court system
IV. Extrajudicial Powers and Police Organization
Afterword: Revival and Return
Appendix I Separate Criminal Legislation during the Nazi Period
Appendix II Changes to the Civil Code during the Nazi Period
Appendix III Separate Legislation on Civil and Commercial Affairs during the Nazi Period
Appendix IV Economic, Labour, and Social Legislation of the Nazi Period
index
bibliography
Read the sample chapter
Words are short and powerful. It is difficult for human emotions to be provoked by those muttering and question-like words that are in flux and full of internal contradictions, and push to a climax, even if the latter is more rational and closer to the truth. Today, the "panorama" of law and society in a complete way has become an ancient art that has long been lost. It seems out of place to dig up and collect scattered intelligence and information, and then connect them together to form a relatively complete narrative, and in the process of continuing them, to build up judgments about "morality" and "history".
The Internet stores a huge amount of information about any aspect of any era, and database retrieval replaces the traditional way of acquiring knowledge, which helps people to more easily discover many errors in the historical facts of ancient works, but it cannot identify the depth of human judgment in those ancient works, nor can it make people's hearts more intelligent and more stable. Relying on the convenience of "external memory", information stays on the server in a fragmented state, and they no longer need to be integrated into a single narrative, nor do they stimulate each other to form new knowledge, but are "used and discarded" by people. In turn, people lose not only the determination to write, but also the patience to read. As an inevitable result, the short replaces the long, the simplification replaces the complex, the static replaces the rheology, the assertion replaces the analysis, the fanaticism replaces the rational, the blind faith replaces the thinking, and the slow growth of "morality" and "historicity" comes to a standstill. Therefore, my whole effort is not to add another drop of water to the ocean of "external memory", but to more or less restore the ancient art of "historical writing", which originates from human instinct and serves human nature.
Nazi Germany, as one of the exemplars of totalitarian political formation, is characterized by shortness, simplification, static, assertion, fanaticism and blind faith in the fields of thought, culture, language and law. In this sense, Nazism corresponds precisely to certain superficial needs of human nature. During its short 12 years of rule in Germany (1933-1945), the Nazi regime unequivocally rejected the liberal tradition of the European Enlightenment and the rationalist tradition of classical Germany philosophy, basing its legitimacy on the radical idea of "revaluing all values", and attempted to reshape the "morality" and "historicity" of human civilization on the basis of some anthropological and biological theories that served political purposes. Washed by Nazi ideology, Germany's law and jurisprudence easily subverted the beliefs of universalism, humanism, formalism, rationalism and positivism that had been formed since the 18th century, and reduced them to an instrument of political repression that succumbed to state violence and was characterized by populism, sophistry and pragmatism.
During this period, Germany's law and jurisprudence developed a variety of new concepts, ideas and doctrines of the "anti-rule tradition" and formed a vast theoretical system. After the war, there was a reflection on this. First, the degeneration did not begin in 1933, nor did it end in 1945, because Nazism as an ideological system did not exist only when the Nazis were in power, but was rooted in the inherent flaws of modernity. Second, although the result of this depravity was caused by the Nazi Party and Hitler's dictatorship, it would have been difficult to build a theoretical system of "anti-rule of law" had it not been for the active embrace of Nazi ideology by a large number of well-educated jurists, magistrates, and professional lawyers. Thirdly, in this process, the submissive German people and the international community are also to blame. In a sense, the total degeneration of German law is the product of the complicity of all sectors of Germany's domestic society and international political forces, and should not be blamed "in a word" on the Nazi regime, otherwise those who have damaged the reputation of Germany law will escape the historical responsibility that should have been borne. It is precisely for this reason that the law and jurisprudence of Nazi Germany are worthy of deep reflection.
It should be noted that the law and jurisprudence of Nazi Germany were not irrational works born of a crazy idea. The Nazi regime never formally abolished the Weimar Constitution and the Germany Civil Code, which formally recognized the validity of most of the legislation of the German Empire and the Weimar Republic, and to a considerable extent continued the guidelines and policies that had been pursued earlier. In order to achieve diplomatic and military ambitions and pursue special political goals, the Nazi regime bypassed the constraints of the existing "legal code" by reforming existing legislation and enacting separate legislation, and increased the flexibility and arbitrariness of the application of law by expanding the authority of judicial interpretation and establishing an unconventional court system. In the first few years after the seizure of power, the Nazi regime achieved remarkable results in social governance. However, the rapid economic and social development at the beginning of Nazi rule came at the cost of eliminating the subjectivity of the law and reducing the certainty of the law. Once the evil of human nature is released from the "cage of law," it will become an irrepressible trend toward unbridled power, and the dumping of various interest groups at the top and the proliferation of various police organizations at the grassroots level are typical reflections of "unrestricted power."
Objectively speaking, the jurists of the Nazi period fiercely criticized "the epistemology of universalist natural law, the obsession with systematic codification thinking, the rigid and closed legal formalism and legal doctrinal methods, and the excessive individualism, fetishism and capitalist tendencies hidden in positive law", so they were not completely irrational "madmen's babbling", but continued the consistent line of thought of Germany's critical jurisprudence since the middle of the 19th century; Not only that, but their views also have a lot in common with the legal realism and "sociological jurisprudence" movements that are becoming popular across the ocean. However, when such critical thinking is pushed to the extreme, especially when it binds itself to a kind of social Darwinism based on anthropology and biology, its evil anti-human face is exposed. It can be said that the laws and jurisprudence of Nazi Germany were quite rational on the one hand, and extremely crazy on the other. Nazism's pursuit of madness by rational means is that it was able to melt two diametrically opposed things into one furnace, which is also the most worthy of deep reflection by future generations. In fact, it is not uncommon in the history of human civilization that the comprehensive implementation of theoretical criticism into political practice can easily lead to "man-made disasters".
After the war, Germany's legal scholars once spoke of the Third Reich, but after the reunification of Germany, this once sensitive field of research showed a "blowout" trend, and a large number of papers and works by German scholars emerged, among which the better works were translated into many languages. More and more people are learning more and more about Nazi jurisprudence, and at the same time forming more and more impartial macro impressions. However, most of these works, especially those written in German, are not familiar to domestic scholars, partly because of language barriers, and partly because domestic scholars are either stuck in the "coffin-covered" understanding of Nazi jurisprudence, or believe that this is purely a "Germany question" that has nothing to do with China, so they lack the motivation to dig deeper into this field. In any case, the world of Chinese Simplified has been lacking a comprehensive study of Nazi-era law and jurisprudence. In view of this, I will collect and display as much as possible important legislative texts, judicial decisions and legal academic documents in Germany from Weimar to Nazi, strive to introduce to readers the representative research results in this field of research over the past half century, and strive to present the main ideas and mutual debates of these research results, with the aim of giving readers as comprehensive a comprehensive understanding of the general situation of this field of research as possible, and understanding the observation perspective and overall reflection of contemporary European and American scholars, especially Germany scholars, on law and jurisprudence during the Nazi period. For this reason, putting more facts and less reasoning is not a good way, but I am afraid it is also the least bad way.
Of course, it is extremely difficult to draw a complete picture of the law and society of an era. No matter from which angle the discussion is made, no matter what kind of logic is used to arrange the order of discussion, and no matter how detailed the discussion is on a certain topic, once it falls on paper, it can only be "stupid" and "fallacious" that has already been cast, because there will always be some more important historical facts, better judgments, and more accurate expressions that exist in "places that have not yet been written", and there will always be some thoughts and feelings that the author never expected will come to the reader's heart. However, this may be the process of the slow growth of "morality" and "historicity", and it is also the closest way to "human nature".
Koyangon, July 15, 2023 at Jiulinglu
(Preface to Law and Lawlessness in Nazi Germany, pp. 1-5)