The Law under the Swastika: Studies on Legal History in Nazi Germany

Michael Stolleis holds the chair in public law and early modern legal history at the Johann Wolfgang Goethe-Universitat, Frankfurt am Main. He is the author of Geschichte des offentlichen Rechts in Deutschland (2d edition 1992).

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

© 1998 by The University of Chicago

All rights reserved. Published 1998

Printed in the United States of America

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ISBN-13: 978-0-226-07532-7 (e-book)

ISBN: 0-226-77525-9 (cloth)

Originally published in German as Studien zur Rechtsgeschichte des Nationalsozialismus, © Suhrkamp Verlag Frankfurt am Main 1994.

Library of Congress Cataloging-in-Publication Data

Stolleis, Michael, 1941–

    [Recht im Unrecht.   English]

    The law under the swastika : studies on legal history in Nazi Germany / Michael Stolleis ; translated by Thomas Dunlap ; foreword by Moshe Zimmermann.

        p.   cm.

    Includes bibliographical references and index.

    ISBN 0-226-77525-9 (cloth : alk. paper)

    ISBN 978-0-226-07532-7 (e-book)

    1. Law—Germany—History.   2. National socialism.   I. Title.

KK190.S7613   1998

    349.43'09'043—dc21

97-36021

CIP

The paper used in this publication meets the minimum requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1984.

The Law under the Swastika

Studies on Legal History in Nazi Germany

Michael Stolleis

Translated by

THOMAS DUNLAP

Foreword by

MOSHE ZIMMERMANN

THE UNIVERSITY OF CHICAGO PRESS

Chicago & London

CONTENTS

Foreword

Sources

Historical Introduction

General Introduction

PART ONE

The Study of National Socialist Legal History

1. Biases and Value Judgments in the Study of National Socialist Legal History

2. Legal History during the Nazi Period: Outlines of a Scholarly Field

3. Was there Progress in Legal History during the Nazi Period?

4. Community and National Community (Volksgemeinschaft): Reflections on Legal Terminology under National Socialism

PART TWO

Legal Theory and Practice

5. In the Belly of the Beast: Constitutional Legal Theory (Staatsrechtslehre) under National Socialism

6. The Science of Administrative Law under National Socialism

7. The Revival of Administrative Studies (Verwaltungslehre) under National Socialism

8. Administrative Jurisdiction under National Socialism

9. Harsh but Just: Military Justice in the Service of National Socialism

10. The White Rose and Its Judges

PART THREE

The Postwar Aftermath

11. The Legal System and Judicial Policy in Germany, 1945–1949

12. Theodor Maunz: The Life of a Professor of Constitutional Law

Notes

Index

FOREWORD

Only an extraterrestrial could describe an oxymoron like justice in the Third Reich in a responsible neutral manner. Otherwise, everything written on this matter can only be considered either an apology or an indictment, depending on the origin or approach of the author. Being of German origin or citizenship is sufficient to render an author a priori biased, even in his or her own eyes. This is precisely the case with Michael Stolleis, author of this collection of articles whose German title can be translated as Justice within Injustice. Stolleis feels he lacks detached observation in dealing with National Socialism because he is German and because he was shaped as a lawyer by the legal system and values of postwar Germany. Even the self-imposed commitment to neutralize the normative influence of these forces or to avoid depicting the past in a distorted manner, earnestly pursued by the author, may not be considered satisfactory by all. Hence this additional introduction, written by one who, considered representative of the non-German view, belongs to the collective group of the victims of the National Socialist legal system.

Here a personal note is relevant: My father became a German citizen in 1929 according to the law and constitution of the Weimar Republic. Revoked by Nazi Germany in 1941 (three years after he had left for Palestine), his citizenship was not only eventually reinstated, consistent with the Basic Law of the Federal Republic of Germany, but also given to his son—again, consistent with the law of the Federal Republic. The irony of this personal connectedness to the legal framework of modern Germany helps explain the interest of an Israeli social historian in a topic that is usually outside his direct sphere of interest.

For a social historian as well as for the historian of mentality, it is specifically the philosophical debate about the quarrel between natural law and positive law that is central—a debate beyond the scope of the author’s primary interest in this volume. After all, this is the debate that underlies the legal reckoning with the Third Reich. This explains the difficulty in choosing between the titles Law (Justice) within Injustice (Recht im Unrecht) and Injustice within the Framework of Law (Unrecht im Recht) for the German publication. In the German version the author cautiously opted for the first alternative. He considered the whole system unjust and thus referred to the lawmaking and legal procedure within this framework as a mere mechanism, without the spirit of justice. He did this undoubtedly because the system was an affront to natural rights and natural law. For those less cautious observers who respect positive law over natural law, the second alternative might have been as legitimate as the first: After all, the Weimar constitution, together with the traditional criminal and civil code, continued to exist in a modified way, enabling the traditional system to function under revolutionary and inhumane circumstances. Yes, the debate is essentially about natural vs. positive law.

However the interrelation between law and justice in the Nazi system is described, one conclusion becomes evident: Where the book of laws (among other things) is concerned, the Nazi revolution seems less radical by far than other revolutions, above all in comparison with the communist revolution. There is much continuity to be observed, leading from the Second German Reich (1871–1918), to the Weimar Republic (1918–1933), to the Third Reich (1933–1945), and then, surprisingly enough, to the postwar German republics, west and east.

Two factors explain this appearance of continuity. The first is the exclusion of specific segments of lawmaking and law enforcement (such as the concentration camps) from the main system. The second is the very gradual erosion in practice of rights that were formally valid, under pressure of both revolutionary ideology and the new apparatuses it created. Therefore, an important question must be asked: When did the legal system in Germany reach the point of no return and become a totally new one, creating a new system of (in)justice? Was that point already reached less than a month after Hitler’s rise to power, when the Emergency Regulations for the Defense of the People and the State were promulgated (February 28, 1933) as a reaction to the Reichstag having been set on fire? Was it in March 1933, with the Enabling Law, practically uniting the executive and the legislature? Was it only later, with the laws establishing the authority of the Gestapo (February 10, 1936)? Or perhaps this point was never reached, and the system as a whole was more of a variation on the previous system than a break with it.

Whether we look at the essence of law, at the way the system functioned, or at the equilibrium between the different forces of law and law enforcement of the Third Reich, it becomes quite clear that the system of injustice was characteristic of this regime from the beginning. Even more, as Stolleis states very clearly, it is a myth that some areas remained entirely untouched by the political claims of the system. This myth was nourished by cynical laymen who could argue, for instance, that the Weimar constitution was never formally abrogated. Yet it was not necessarily the influx of new laws, but rather the interpretation of law according to the maxims of völkisch (racist) thinking, adapted to the needs of Volksgemeinschaft (the people’s community) and to "völkisch natural law," that made the difference—even if we agree with Stolleis that, strictly speaking, there was no real doctrine or legal philosophy of National Socialism.

The history of lawmaking concerning the Jews¹ provides not only a striking example of a focal area of legal activity of this revolutionary system, but also an illustration of the typical process of a revolution by gradual small steps. The first anti-Jewish law (April 7, 1933), passed under the name Law to Restore the Professional Civil Service, introduced racial anti-Jewish discrimination into the legal system. Yet because it was not totally implemented (Jews who had served at the front during World War I were exempted from it), the change at first did not seem too radical. Then, even the progression of laws and regulations leading up to the Nuremberg Laws (September 1935)—such as the Law against the Disproportionately High Number of Jews Attending High Schools—did not necessarily create the impression of a total break with the Rechtsstaat. There were Jews who were ready to accept even the Nuremberg Laws as a limited kind of regression rather than a total collapse of the system. Then the number of anti-Jewish laws and measures increased rapidly, and discrimination and persecution became more and more blatant. Still, because this took place within the framework of the law, a framework whose whole character underwent a transformation, changes within specific sectors (such as the Jewish problem) could be conceived as normal. Even the harsh Jewish laws during the war could be considered normal by contemporaries, since the curtailing of rights and standard of living for the whole population became commonplace. The absurdity of this system became all the more apparent when the anti-Jewish lawmaking continued after October 1941, when Germany became practically free of Jews (judenrein). The law took an independent course, while its object—the Jews in this case—practically disappeared. This development turns any understanding of the concepts of ‘law’ and ‘justice’ on its head.

For any student of history, not only the history of law, three additional aspects of this history of law under the swastika need special attention.

First is the question of singularity and historical approach. Together with Stolleis, we may plead for the historization of National Socialism and its legal system, but not for the sake of relativization or apologetics. The question of progress in legal history in the era of National Socialism may provide us with an excellent test case. Social historians have been absorbed with the historization of National Socialist history at least since the Historikerstreit ten years ago.² Legal history makes no exception. Pointing to the Third Reich as a link in the development of social welfare, for example, has become a commonplace.³ At the same time, it is obvious that attributing modernization to National Socialism is characteristic of the New Right in German historiography,⁴ and therefore this approach should be dealt with very carefully. Thus, for example, Stolleis takes the party’s 25 points program very seriously, considering point 19 about the introduction of a German common law and its interpretation as an incentive . . . to construct a new picture of Roman Law. In so doing he understands the "pressure of the Zeitgeist or the political challenge presented by National Socialism as instrumental for the creation of historiographical progress or modern scholarly response." We must not misunderstand this as an acceptance of the argumentation of the New Right.

Second is the attitude toward the opposition to National Socialism (Widerstand). If the National Socialist system was totally evil, then all legal procedure practiced by the Third Reich against any kind of opposition must be considered automatically unjust and therefore illegal, starting with the death sentences against thousands of common citizens who merely made pejorative remarks about the regime, and ending with activists engaging in conscious and political opposition, like the men of July 20, 1944, or the student White Rose group in Munich in 1943. Stolleis refers to the latter: In a film produced in 1982 about the White Rose, the producers directed public attention to the fact that the death sentence proclaimed by the special People’s Court was still formally valid in Germany. The ensuing discussion revolved around the question of whether sentences spoken within the framework of the then valid law should be accepted even today for that reason. Here we return to the basic question of whether it is right or even possible to distinguish between ‘normal’ valid law from that [National Socialist] period, and ‘law’ that should be considered ‘nonlaw’ because it violated . . . natural law. Stolleis warns that the layman’s idea that legal norms . . . are invalid if they are felt to be unjust . . . is based on an unhistorical understanding of natural law. The modern social historian must react to this with some suspicion: The fallacies of historism are only too well known today, and for a historian to accept historical understanding as a moral absolution is one of historism’s main fallacies. How far the fallacy and absurdity can go is demonstrated by another case: A Berlin court in 1955 still described an attempt against Hitler’s life in 1938 as attempted murder . . . because a deliberate plan to take a man’s life was prepared!⁵ Thus the court essentially left the 1939 sentence of the Nazi People’s Court in force and rejected the elementary natural right to oppose a dictator, Hitler!

The problem, however, is clear: It is practically impossible to retroactively erase a whole system of law—a statement that also applies to the legal system of the GDR that ceased to exist in 1990. Therefore the next question, as to which parts of the legal complex should remain valid and which should not, inevitably leads to conflict and to much whitewashing of the evil system. It is precisely this combination of normalcy and evil that made it so difficult for contemporaries to grasp the unjust nature of the Nazi system. Likewise, ever since 1945 and still today, we find it difficult to decide what part, if any, of the National Socialist legal system can be accepted as kosher by us. From our perspective, the principle laid down by the Potsdam conference, according to which all Nazistic laws that provided Hitler’s regime with a legal foundation must be abrogated, has to be considered not only naïve and undifferentiated, but also as a source of injustice and the failure of de-Nazification after 1945 because of this very naïveté.⁶

The problem does not end with the acceptance or rejection of laws and legal sentences. Much of the punishment against real or imagined opposition to the National Socialist system was imposed outside the framework of law—that is, in the concentration camps. That the inmates of the illegal system of the concentration camps were not automatically compensated after the end of the Third Reich, and that pensions of SS members usually exceed the monthly compensation paid to victims of the National Socialist system are well-known facts that illustrate the vagueness of the concepts of ‘just’ vs. ‘unjust’ within the framework of our discussion. In retrospect, even in these cases there is no sharp division between right and wrong, and even the distinction between regime and opposition does not provide us with a clear criterion for distinguishing ‘just’ from ‘unjust.’

These examples lead us to the third point: the question of continuity from the Third Reich to the systems of postwar Germany. The Nuremberg Trials of 1946 were a legal act to punish and put an end to the entire National Socialist system. To ensure the effectiveness of the outcome, a parallel process of de-Nazification was launched. But it was the legal sector in particular that best demonstrated the shortcoming, if not the failure, of this process. It was impossible to find a formula by which a Nazi could be distinguished from a non-Nazi, and therefore even Nazi judges, among other servants of the National Socialist system, could be reinstated in their jobs. In addition, the minds of the decisionmakers of the Allies in Germany were more preoccupied with the Cold War than with anything else. The four years of occupation introduced many new elements into the legal system of divided Germany, but the system and its participants remained very much the old ones. Stolleis states very clearly that there is little to say against those who accuse the judicial system of the Federal Republic of failure to deal with the Nazi judges on the level of criminal law, or of unwillingness to deal with these matters altogether. The fact that no Nazi judge was punished for his activity in the Third Reich is very revealing and throws the whole legal and judicial system of the Federal Republic into disrepute. Old Nazi judges covered up past crimes of members of their own guild or those of other Nazis, confirming the issues described at length in two popular books about this matter.⁷ That jurists Wilhelm Stuckart and Hans Globke, instrumental in the implementation of the Nuremberg Laws, could become civil servants after 1949 (Globke became state secretary in Konrad Adenauer’s Kanzleramt) is clear proof of the continuity from the Third Reich to the Federal Republic. The case of Professor Theodor Maunz, dealt with in one of Stolleis’s chapters, is even more convincing: A pillar of Nazi law (professor of law in Freiburg from 1935), Maunz was a stalwart of postwar Germany’s system of law, author of a popular textbook on German constitutional law, Bavarian minister of culture from 1957 to 1964. Though he lost his ministerial job because of his writings during the Third Reich, he remained an oracle of the German legal system until his death in 1993, when it was discovered that throughout that period he had served as an adviser to a neo-Nazi organization.

The paradox of continuity and ambiguity became apparent also in a parallel affair in the early 1960s. Theodor Oberländer, a minister in Adenauer’s cabinet with a known Nazi past, used two lawyers, law commentators like Maunz during the Third Reich, to defend himself while maligning a member of the opposition, Carlo Schmid, as if his wartime activity had been no less prejudicial. The outcome of this lawsuit created the impression that everyone who lived through the Third Reich was in the same boat that should not be rocked retrospectively, because everyone was open to blackmail. Again, enmity and lack of criteria lead to the inability to distinguish between quantities of right and wrong in the Third Reich. Thus, personal continuity unavoidably also meant continuity in the spirit of the court, perhaps even in law and politics. This has cast a heavy shadow over the democratic, liberal image of postwar Germany.

But we should not deal with the legal sector as an isolated case. In many other sectors continuity was no less conspicuous. Just to mention one example: Robert Ritter, the expert par excellence on the Gypsy question of Nazi Germany, was consulted by the authorities of the Federal Republic as well.

If there is a lesson to be learned from this bizarre story of continuity, it is not how to find a sophisticated way to differentiate between ‘just’ and ‘unjust’ within the heritage of an evil regime. Rather, the lesson is that we must monitor the signs of evil and fight them before the evil regime is able to take power. This lesson should be known best to those of the legal profession.

—Moshe Zimmermann

Jerusalem

SOURCES

General Introduction

Revised version of the article Nationalsozialistisches Recht, in A. Erler and E. Kaufmann, eds., Handwörterbuch zur Deutschen Rechtsgeschichte, vol. 20 (1981), cols. 873–892.

Chapter One

Essay in NS-Recht in historischer Perspektive (Munich and Vienna, 1982).

Chapter Two

Essay in M. Stolleis and D. Simon, eds., Rechtsgeschichte im Nationalsozialismus. Beiträge zur Geschichte einer Disziplin (Tübingen, 1989), 1–10.

Chapter Three

Essay in M. Stolleis and D. Simon, eds., Rechtsgeschichte im Nationalsozialismus. Beiträge zur Geschichte einer Disziplin (Tübingen, 1989), 177–197.

Chapter Four

Vierteljahreshefte für Zeitgeschichte (1972), 16–38.

Chapter Five

Nihon University Comparative Law 6 (1989): 11–28.

Chapter Six

Essay in K. Jeserich et al., eds., Deutsche Verwaltungsgeschichte, vol. 4, part 2 (1985), 707–721.

Chapter Seven

Essay in E. V. Heyen, ed., Wissenschaft und Recht der Verwaltung seit dem Ancien Régime (Frankfurt a. M., 1984), 147–162.

Chapter Eight

Essay in Festschrift für Ch. F. Menger (Cologne, 1985), 57–80.

Chapter Nine

Expanded version of two reviews, in Geschichte in Wissenschaft und Unterricht (1978): 650–654; and in Rechtshistorisches Journal 7 (1988): 93–95.

Chapter Ten

Rechtshistorisches Journal 2 (1983): 211–222.

Chapter Eleven

Essay in Festschrift für H. Coing (Munich, 1982), vol. 1, 383–407.

Chapter Twelve

Kritische Justiz 26 (1993): 393–396; Frankfurter Allgemeine Zeitung, December 21, 1993.

Historical Introduction

The Judicial System and the Courts in the Weimar Republic

I. The revolution of 1918 and the Constitution of 1919 (the so-called Weimar Constitution) transformed Germany from a monarchy into a republic. Germany became a democratic state with a strong presidency (modeled after the American presidency) and a chancellor at the head of a bicameral parliament (the Reichstag as the popularly elected lower house and the Reichsrat as the upper house representing the interests of the Länder, the states). The former Länder (Bavaria, Württemberg, Baden, Saxony, and especially Prussia) continued to exist, and together with the Reich they formed a federal state.

The structure of the legal system that had evolved between 1871 and 1918 was essentially retained. In Germany, as in France and Italy (and in contrast to the Anglo-American legal tradition), law codes have historically played a dominant role in the legal system. After the revolution of 1919, these law codes remained in force: the Civil Code of 1900, the Penal Code of 1871, and the Laws of Procedure. The function of the courts was merely to apply the rules laid down in the codes. The German legal system has significantly less judge-made or common law than the Anglo-American legal system.

The structure of the courts comprised three levels. The highest appellate court was the Reichsgericht (for civil matters and criminal cases, and after 1927 also for litigation involving labor law). At the middle level were the Oberlandesgerichte in the federal states. The lower courts for civil and criminal cases were the Amtsgerichte and Landgerichte, the local and regional courts. Specialized courts also existed for specific areas of the law, for example tax law (Reichsfinanzhof) and social law (Reichsversicherungsamt, Reichsversorgungsgericht). Beginning in the late nineteenth century, Verwaltungsgerichte (Administrative Courts) were set up to handle disputes between citizens and the state. Their function was to examine the lawfulness of administrative acts by the government with regard to its citizens. The most important of these courts was the Preußische Oberverwaltungsgericht in Berlin. At that time there was no supreme administrative court at the federal level. There was also no administrative court with comprehensive jurisdiction comparable to the U.S. Supreme Court or the modern-day German Bundesverfassungsgericht (Federal Constitutional Court). The powers of the Staatsgerichtshof, created after 1919, were limited.

Most of the judges who staffed the courts during the Weimar Republic had come to office before 1914. They were politically conservative and assumed a stance of reserved loyalty toward the republic. In political trials they were accused of rendering class justice, and there was a good deal of truth to the charge.

The Nazi Era

II. The Nazi regime initially took over traditional law, the courts, and the judges en bloc. But already during the first months of 1933 there were dramatic and ominous signs that the regime was abandoning the traditional Rechtsstaat, the state based on the rule of law: Jewish judges, notaries, and lawyers were dismissed; criminal laws were stiffened; the principle no punishment without law was abolished; political enemies were sent to concentration camps. The mass killing of political rivals and others in June 1934 went unpunished; Hitler proclaimed a law that declared these murders acts of national self-defense and as such lawful.

In the fall of 1933 the Reichsgericht acquitted several communist functionaries from involvement in the Reichstag fire for lack of evidence. In response, an angry Nazi government set up a Volksgerichtshof (the notorious People’s Court) in April 1934 to deal with political cases and staffed it with National Socialists. The Volksgericht was essentially a revolutionary tribunal, a quasi-legal instrument of terror to persecute and intimidate political opponents of the regime. Between 1937 and 1944, it imposed the death penalty on 5,191 defendants.

As for the Verwaltungsgerichte, when they made occasional attempts to review measures taken by the Gestapo (Geheime Staatspolizei, the secret police), they were stripped of their jurisdiction in political matters.

The other courts adapted to the new situation as well, occasionally adopting the new political language merely to hide behind it. Although the courts as a whole did not offer any significant resistance, it is not accurate to describe them collectively as Hitler’s willing instruments. The picture painted by scholarship is becoming increasingly differentiated and complex.

During the war, the judicial system was drastically curtailed. Stages of appeal were shortened or abolished. The younger judicial personnel were drafted into the military. Administrative jurisdiction ceased almost entirely. Paradoxically, the supreme administrative court, the Reichsverwaltungsgericht, was set up as late as 1941, though it failed to acquire any importance. The rest of the system was dominated by an increasingly harsh penal justice: External and internal pressure transformed it into a true instrument of terror during the war. However, since penal justice still failed to perform its tasks to the regime’s satisfaction, Sondergerichte (special courts) were set up everywhere. During the war they dealt with everyday crime and at times imposed barbaric punishments. There were also the special courts of the military, so-called Wehrmachtjustiz (military justice), which tried to discipline the fighting troops with draconian punishments and thousands of death sentences. Finally, the darkest chapter of the judicial system was the execution, in particular by the SS (Schutzstaffel, protective force), of an untold number of people without trials and sentences.

The Postwar Period

III. After Germany’s capitulation on May 8, 1945, the Allies assumed supreme authority and rebuilt the judicial system from the bottom up. In the process there were characteristic differences between the American, the British, and the French Zones. The Soviet Zone took a separate path altogether, under the domination of Josef Stalin.

The prevailing statutory law was cleansed of Nazi ideas and brought back. Judges were subjected to de-Nazification and rather generously restored to their positions. This explains a strong continuity in terms of personnel, which had unfortunate consequences for the prosecution of crimes from the Nazi era. The structure of the courts corresponded essentially to the model of the Weimar period. The Reichsgericht was renamed Bundesgerichtshof (Federal Supreme Court).

Two years after the creation of the Federal Republic of Germany in 1949, a new court was set up, the Bundesverfassungsgericht (Federal Constitutional Court). Its task is to translate the norms and values of the constitution into law. Like the U.S. Supreme Court, it is supposed to be the guardian of the constitution. Its two panels (of eight judges each) have accomplished this task primarily by ruling on complaints of unconstitutionality brought by individual citizens. These complaints are very popular and have brought the court high renown.

After World War II, the Federal Republic made an energetic return to the Rechtsstaat and has sought to imbue the traditional—and fairly complicated—structure of the judicial system with a democratic spirit and values. Following the collapse of the political system in the German Democratic Republic in 1990–1991, the West German system was expanded to include the former East Germany.

The major issues debated today are whether the multi-layered legal protection provided by the German system is too slow and expensive, and how the traditional forms of legal protection can be adapted to the conditions of modern industrialized society.

General Introduction

Law and Despotism

I. It may seem paradoxical to speak of law and despotism in the same breath, for to do so raises the dilemma of the existence of law in a system that is on the whole unlawful and unjust or at least commits many unlawful acts. Using terminology familiar since Aristotle, we can phrase the statement as a question: How is it possible at all to speak of law under a tyranny? There are at least two answers.

The first is that no tyranny exercises power with perfect consistency. Even the worst regime has niches of order, remnants of law, islands of calm. There are always individuals who refuse to be completely compromised, who resist political pressure, and who behave correctly, not only in their private affairs but also, and especially, in their official capacities. There are always areas of the law in which procedures continue to be just and lawful. To be sure, the number of such areas will shrink the longer a despotic regime is in power and dissolves all norms, but some will remain, at least for a while. This answer presupposes two things: a concept of law that is material and substantive in content, and a system of values as the underpinning of that concept, whether or not it calls itself natural law. In this case the law is either close to morality or merges with it. Only a norm of good content acquires the quality of law. A person who kills a tyrant acts in accord with morality, and the deed is therefore not unlawful.

The second answer takes a formal starting point. It dispenses with a substantive distinction between law and nonlaw,¹ and describes as law anything that meets certain formal criteria. These criteria are determined by a given constitution. If the constitution has been reduced to the principle that the Führer’s will is law and determines what is right and wrong, any expression of the state’s will that is made with a claim to validity is law to the extent that it conforms to that will. This conception of the law is value-neutral and all-embracing. It excludes only those acts that fail to meet even the formal criteria, essentially only outright terror and arbitrary violence. Whatever else presents itself in the guise of a legal norm—possibly even the rules governing a concentration camp—is law.² Consequently, a person who attempts to kill the tyrant is acting unlawfully, and if the attempt fails, he or she is lawfully sentenced and executed by the system. The fact that the individual acted in accord with morality, has a clear conscience, and is revered by posterity as a martyr is a second (moral) level that must be sharply distinguished from the law.

A third possible answer would be to deny that any of the acts of state that occurred in Germany between 1933 and 1945 had the quality of law. This position could be justified on the basis of natural law by maintaining that the regime was from the very outset incapable of rendering law and justice; it was, in the words of Augustine, a gang of criminals. Alternatively, it could be justified on the basis of legal positivism, in which case it would have to start from the Enabling Act of March 24, 1933, arguing that since this act was invalid, all law that followed was also invalid. Both arguments run into problems, since the acts of state in question were, at least in part, voluntarily recognized as legal acts at home and abroad. In that sense, effective law was rendered in all areas of the law.

The essays on legal history collected in this volume do not, however, focus primarily on philosophical debates concerning whether law and morality are a single entity or separate entities, the quarrel between natural law and positive law, the question about the de facto validity of norms, or the difference between legality and legitimacy. On all these issues a legal historian will try to assume the stance of a detached observer, to avoid being drawn into the debate over the correct concept of law. By translating and interpreting texts, the legal historian seeks to observe how law functioned at various times, in different countries, and under different conditions. The approach is thus similar to that of an ethnologist, who seeks, through participatory observation, to decipher a cultural value system that is unfamiliar or appears familiar only by virtue of analogous elements. The debate about methodology in the humanities has repeatedly demonstrated that scholars who use this approach can deceive themselves about their perspective, that their memory can play tricks on them, that they misinterpret messages—in short, that they essentially produce a more or less subjective report that they try to present as the historical or ethnographic truth.

It is obvious what kind of difficulties work against a stance of detached observation in dealing with National Socialism and the law that was in force in Germany between January 30, 1933, and May 8, 1945. I am German; I grew up after 1945 in a peaceful and prosperous society and was neither directly nor indirectly a victim of that system. While I, like most people of my generation, do not have a sense of personal guilt, I do feel a sense of shared responsibility for that period and its crimes. Finally, I am a lawyer and thus have been shaped also by my study and practice of the prevailing system of law, a system to whose values I feel a