Taking Nazi Law Seriously
| Author | Laurence Lustgarten |
| Published date | 01 January 2000 |
| Date | 01 January 2000 |
| DOI | http://doi.org/10.1111/1468-2230.00255 |
REVIEW ARTICLE
Taking Nazi Law Seriously
Laurence Lustgarten*
Michael Stolleis,The Law Under the Swastika: Studies on Legal History in
Nazi Germany, trans. by Thomas Dunlap, Chicago and London: University of
Chicago Press, 1998, xvi + 263 pp, hb £30.00.
For the average person in the English-speaking world, the image of Nazi rule, even
before the extermination policy that emerged during the Second World War, is that
of violence and dictatorship. Hitler is usually described as ‘seizing power’, despite
the fact that he became Chancellor through constitutional means and with the
backing of the right wing of German politics, which preferred his programme of
destruction of the Republic rather than ally with its supporters of the centre or left.
The image of unremitting and mindless barbarism has been a serious obstacle to
understanding how the Nazis actually governed Germany, and how they did so
with the strong support of many professional groups: above all, administrative
officials, professors, lawyers, and judges. There is an important parallel with our
understanding of the attempted destruction of the Jews. The emotionally-charged
insistence on the uniqueness of the Holocaust which has dominated academic and
popular discussion since 1945 has blinded us to the realities of state terrorism and
genocide as a form of power. (It is largely forgotten that in this century the Turks
invented genocide, practising it with chilling efficiency against the Armenians in
1915 – a history to which Hitler specifically referred in discussions among the Nazi
leadership about how to treat the Jews in the conquered territories.)1Similarly, the
depiction of Nazi Germany as a unique ‘terror-state’ has obscured the
uncomfortable similarities between its civil order and aspects of our own. And
the denial that Nazism had any serious intellectual basis has made it easier to
ignore parallels between its outlook and important aspects of praxis in what we call
‘Western liberal’ societies.
It is a great merit of Michael Stolleis’ interesting and valuable book that it brings
issues such as these to the fore. Stolleis, Director of the Max-Planck-Institut for
European Legal History, is both a public lawyer and a legal historian, an ideal
combination for someone seeking to evaluate the theory and practice of the Nazi
legal order. He has a full knowledge of the historical sources within German legal
writing from which thinkers sympathetic to Nazism could liberally draw, and he
ßThe Modern Law Review Limited 2000 (MLR 63:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
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*Faculty of Law, University of Southampton.
1 See generally R. Hovanissian (ed), Remembrance and Denial: The Case of the Armenian Genocide
(Detroit: Wayne State University Press, 1999). Approximately half the ethnic Armenians in Turkey
were slaughtered between 1915 and 1916. Hitler’s famous remark, ‘Who, after all, speaks today of the
annihilation of the Armenians?’, was made in a speech to his generals on 22 August 1939, as he made
clear the character of the war he intended to unleash upon Poland. See further K. Bandarjain, Hitler
and the Armenians (Cambridge, Mass: Zorjan Institute, 1985), 25–35.
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