From The Law and Politics Book Review

Vol. 8 No. 10 (October 1998) pp. 379-381.

THE LAW UNDER THE SWASTIKA by Michael Stolleis. Chicago: Chicago University Press, 1998. 263 pp. Cloth $29.95. ISBN 0-226-77525-9.

Reviewed by Jonas Nordquist, Department of Political Science, Stockholm University, Sweden. E-mail: mailto:Jonas.Nordquist@statsvet.su.se

 

THE LAW UNDER THE SWASTIKA is a study of legal history, which examines the German legal system during the National Socialist period. The author, Michael Stolleis, is director of the Max-Planck-Institute for European Legal History and holds the chair in public law and early modern legal history at the Johann Wolfgang Goethe-Universität, Frankfurt am Main, in Germany. He has earlier written a study of public law in Germany (GESCHICHTE DES OFFENTLICHEN RECHTS IN DEUTSCHLAND 1992).

Michael Stolleis' work was published in German in 1994, and has now been translated into English by Thomas Dunlap. The title in English, THE LAW UNDER THE SWASTIKA, conveys the contents of the book in a fairly neutral way, and will in itself probably not give rise to any philosophical discussions about the nature of the German judicial system during the Nazis, between 1933 and 1945. The situation before the publication of the German original was somewhat different, with two main proposals for a title: LAW (JUSTICE) WITHIN INJUSTICE (RECHT IM UNRECHT) or INJUSTICE WITHIN THE FRAMEWORK OF LAW (UNRECHT IM RECHT). The choice of one before the other of course reveals something about the author's view of the legal system in Nazi-Germany. His final choice of title can be seen as an indication of some kind of natural legal point of departure.

The book contains 12 essays, a foreword by another scholar, a short historical introduction and a general introduction of the subject. The historical retrospect quickly reminds the reader about the development in Germany shortly before the fall of the Weimar Republic, the seizure of power by the Nazis and, to some extent, about the postwar period. In the general introduction the author discusses the legal development during the Nazi regime in greater detail. He argues that National Socialism in fact affected all types of law in one way or another, and, in other words, that it is a myth that some legal fields were left unaffected by the political realities of the Nazi period. The Nazis used two principal methods to change the legal system; through interpretations of the already existing laws and through new legislation. It was to begin with in the interest of the Nazis to carry out as few public changes as possible in order not to worry the people and the elitist groups in society. It was essential for them to maintain a semblance of normalcy to prevent the people from turning against them. However, this also limited the ability of the Nazis to legislate, but with a new way of interpreting the existing laws the National Socialist ideology still could leave its mark on the legal system without much outward show.

In the twelve essays of the book the author tries to support his claims made in the general introduction with more specific evidence. The first part deals with "The Study of Nationalist Socialist Legal History." In this part Stolleis discusses a number of other studies on the legal system in Nazi Germany as well as the methodological problems of these kind of studies, to which I will return below. In the second part, "Legal Theory and Practice," the author examines different fields of the National Socialist legal system such as the function of the administrative law, the harshness of the military justice and the death sentences passed by the People's Court against the members of the White Rose. In the concluding part, "The Postwar Aftermath," Stolleis focuses on the German legal system between 1945 and 1949, but also on the life of the German scholar Theodor Maunz, who in spite of his Nazi past became one of the leading Professors of Constitutional Law in the Federal Republic. After his death it was revealed that he had been the advisor of a right-radical grouping for years. Stolleis takes his life as an example of the importance of an ethical consensus within the legal profession in the Federal Republic on an unconditional and outspoken disapproval of everything connected with National Socialism and its successors.

Unlike many other studies of the legal system in Nazi Germany, the purpose of Stolleis's book is not primarily to throw light upon the philosophical debate about law and morality, and it is definitely not an attempt to condone the legal system of the National Socialists. On the contrary, the author severely criticizes earlier research in the field and gives several reasons for his critique. First, Stolleis argues that for a long time there has been a taboo against research on the Nazi period in the German history. He writes:

Scholars in this field as well, are not as free as they themselves sometimes think, when it comes to determining topics, formulating hypotheses, and selecting methodological approaches. Although it is true that scholars make their decisions as individuals, from a greater distance one can also see that they show a relatively uniform behavior as a group, and this allows us to make general observations. For example, we note that in the first decades after 1945, the representatives of legal history at German universities did not speak about Nazi law and Nazi crimes or about the role of legal history during the Nazi era (pp. 40-41).

Three different taboos made research in this field particularly difficult. First of all the scholars in the field of German legal history had a long tradition of studying older legal systems, for example Roman law and Medieval law. Secondly the view that "it is too soon to speak about National Socialism" was widespread. Thirdly, many scholars themselves had been active during the Nazi period. According to Stolleis, the research carried out in spite of these taboos has been heavily biased and lacked any scholarly discussions about the methodological problems related to these kind of studies. In addition, the persons who have carried out the research have mostly been jurists or administrators and not legal historians. On the one hand, this may have had a stimulating effect on Legal Science. On the other hand, the risk of being amateurish may also have harmed the research, not least when it comes to methodological precision (p. 27). Furthermore, many of the books on this subject have had a strong emotional aim, in one direction or another. This kind of research has also become politically sensitive.

All this means that the methodological requirements are considerable. The aim of Stolleis's book is not to draw any normative conclusions, but instead to describe how the legal system functioned in Nazi Germany. Nevertheless, his work is of course not purely descriptive. Stolleis tries to show the shortcomings and failings of previous research without a normative agenda of his own. One problem that Stolleis shares with other German scholars in the field of Nazi studies is that they by definition can be considered biased on the sole ground of being Germans. In addition, Stolleis is a jurist, and thus he makes the following comment about the shaping forces behind his research:

Of course, my methodological conscience demands that I do whatever I can do to neutralize their normative influences, to avoid perceiving or depicting the past in a distorted manner (p. 7).

To further emphasize that the book is not a German-biased account, the foreword is written by an Israeli historian, Moshe

Zimmerman, whose father became a victim of the atrocities of the National Socialist legal system. In the foreword Zimmerman discusses Stolleis's results.

THE LAW UNDER THE SWASTIKA is a very interesting study. The author is very open about his points of departure and about all the problems that these kinds of studies suffer from. The different essays in the book can be read in succession as well as separately. Even if the book in itself is not particularly difficult to follow, it still demands a lot from the reader, not least concerning German 19th century philosophy. That this book now is available in English is of course of great significance and everyone with the least interest in history and the German legal system during the Nazis should read this book. It gives the reader many important insights to consider and reconsider.


Copyright 1995