Social Theory of law seminar notes

WEEK 4, Seminar 3

 

(Tom Stanford, 10-11)

 

Nazi jurisprudence is an unsurprising outcome of the German legal tradition.

 

Nazism is embodied by increase in the executive body, and substantive positive law entered into a formal setting by the manipulation of a dictator.

 

The nature of nazi jurisprudence is that of totalitarian manipulation of the formal, precise codified legal system that was in place before it. The German Legal Tradition can be seen to exhibit elements of natural and positive law. This can be seen through the existence of the Stiltlichkeit and the increase of nation state law, which is explicitly positive. Weber was a contemporary of the early Twentieth Century German Legal Tradition. His social theory of legitimacy suggesting law valid, as deriving from the will of a governing body, could be indicative of increasing substantive law in the country. There were huge ethnic, economic and political divides within the country, yet a desire to unite as a nation. One might suggest the historical collective idea of being ‘German’, Bismarck’s “Second Reich” in 1870, an increase in free trade and external trade protectionism, denoted a desire to create a nation that was to be economically large and dominating and politically united against other country’s considered a threat. Is nazi jurisprudence an unsurprising outcome of the German Legal Tradition?          

 

Arguments For:

  • Can see that German philosophy of law predating the Twentieth Century emphasised central tenants to imposing ‘monopoly of force of the state’. For example;
  • Kant – his republicanism advocated that members would only be subject to rules that they had collectively given their approval – i.e. group ethic over individualism, a clearly different interpretation of democracy in comparison to the English/American conception. This notion of democracy could be, and indeed was, easily manipulated to totalitarian needs.
  • Hegel – whose dialectic analysis of conflict between free activity conditioned by external circumstances, required law to limit the individual, and from this result in the individual realising his autonomy. Allowance for coercion to be legislated. 
  • There was a strong emphasis on codification, but also on application of this codified law by a leader, here there is an interesting mix of formal/positive law. 
  • Also, it could be argued that a strong legal system led to a weak political structure, resulting in any new substantive contradicting law would be accepted into the formalised structure.
  • The German Legal Tradition saw gradually the rise of citizen rights, which grew in place of human rights, and enforced the idea that rights came from the state. People are more willing to follow a state that is concerned for them.   
  • Austin’s ‘command theory’ was based on the German Legal Tradition, that is a very codified, restrictive, executive supporting conception of law. This could be said to be the basis for nazi jurisprudence to arise.

 

Arguments Against:

  • Misunderstanding of Kant – although he suggested that law should be that of the collective will, he promoted only those acts that respect everyone’s freedom of choice.
  • The German Legal Tradition strongly emphasised rights and values in the Stiltlichkeit, Hitler greatly derogated from these by manipulating them to a great extent.
  • The reasons for Nazi jurisprudence arising at this time was much more a factor of economic instability. The rise of far right governments often happen in countries where the economy if facing a downturn.
  • The other outside factors, such as the German understanding of citizenship and the economic instability, had more influence on the Nazi jurisprudence. 

 

 

Seminar 11-12

Richard Norrie, General Secretary

 

 

  • Positive law led to Nazi law which created the circumstances for human rights law.
  • Kelsen’s theory of law as a system of rules detached from moral justification. It was the first attempt to ground law on something other than human nature. The German legal tradition made it possible to ground law on something other than moral law. Thus it allows them to discriminate.
  • Hegel had idea of trans individual totality which recognised that individuals were both separate but also part of a wider thing.
  • Bismarck- we are all German, although we come from traditionally separate principalities.
  • Codification leads to positivism.
  • Codified law is easier to change than common law, based on tradition.
  • Kant- ‘kingdom of ends’- German legal tradition idealistic, trying to construct an ideal version of society, like the Nazis, by means of law.
  • Nazi theory comes from different lines- eg a particular reading of Nietzsche.
  • Must take into account the historical, social and political circumstances.
  • German legal tradition led to nationalism- nationalism logically leads to competition against other nations.
  • Nationalism the way to motivate the masses.
  • Legal theory created idea of nationalism based on positive law.
  • Japan adopted a similar militaristic approach to Nazi Germany. The role of law made was as a source of change, to code an easy and accessible law, to introduce changes.
  • Law constructs a national identity which empowers.
  • National identity moves people to act beyond their normal behaviour. For example the attitudes of American soldiers in the Iraq and Vietnam wars.
  • The Adolf Eichmann defense- [paraphrase] “I was just following orders- I was obeying my country’s law, I have nothing personally against the Jews”.
  • Carl Schmitt: friend or foe? We are all attacked if our country is attacked. An attack on the country is an attack on the collective consciousness of that country.
  • These trends in German law did not start of as Nazi jurisprudence. Nazi law came from an interpretation of the existing laws. Creeping change, through the ordinary legal process.