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The Validity of the Nazi Legal System – SS and Wehrmacht The Validity of the Nazi Legal System – SS and Wehrmacht

The Validity of the Nazi Legal System – SS and Wehrmacht - PowerPoint Presentation

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The Validity of the Nazi Legal System – SS and Wehrmacht - PPT Presentation

By Arianna de Feo Puzzle Nazi system viewed as dictatorial terror state but possessed a complex and robust legal system How Nazi legal system created laws Were these laws valid Insights drawn from two memoirs ID: 463221

legal rule courts law rule legal law courts man military system realism formalism judges high adhere applied laws judicial

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Slide1

The Validity of the Nazi Legal System – SS and Wehrmacht

By Arianna de FeoSlide2

Puzzle

Nazi system viewed as dictatorial terror state but possessed a complex and robust legal system. How?

Nazi legal system created laws. Were these laws valid?

Insights drawn from two memoirs

Werner Otto Müller-Hill (Military Judge)

Georg

Konrad

Morgen

(SS Judge)Slide3

Background

Nazis inherited legal/judicial system from Weimar but made changes

Implemented new laws, restricted judicial independence, and replaced old lawyers with new ones

Three Main Courts:

Civil and Criminal: Local, District, Supreme, Special, and People’s Courts tried civilians

Military: criminal law in Wehrmacht

SS: criminal law in SSSlide4

Wehrmacht Military Courts

Administered Military Penal Codes of 1872 and the Code of Military Judicial Procedure of 1896

Nazis added the Special Wartime Penal Decree and the Code of Wartime Criminal Proceedings

Made punishments for crime more severe and sped up court proceedings

Nazis were focused on deterrence of crime within militarySlide5

SS Courts

Contained a mix of civil and penal code but also observed a distinct, racial SS ethos

Judges required to take into account both written statutes and behavioral ethos when deciding cases

Courts presided over crimes committed by SS in Germany, occupied territories, and concentration camps

Corruption, embezzlement, killing prisoners without permission, etc. Slide6

Definitions

Rule of Law

Legal ideal that law governs the people and not arbitrary wishes of an individual or group of individuals

Instrumental definition requires that a legal system and its practitioners, adhere to certain rules when applying legal standards

Generality, publicity,

prospectivity

, and congruenceSlide7

Definitions

Rule of Man

Antithesis of Rule of Law

Instead of government limited in its actions by codified, consistently applied

laws,

a government or group of individuals arbitrarily uses power to rule over the people

Opposite of rule of law and measured by:

Arbitrariness, secrecy, retroactivity, and incongruenceSlide8

Competing Theories

Rule of Law, Legal Formalism

Legal system follows a rule of

law: generality, publicity,

prospectivity

, and congruence

Judges adhere to legal formalism (letter of law) without being affected by shifting, strategic interests

Rule of Law, Legal Realism

Legal system follows a rule of law: generality, publicity,

prospectivity

, and congruence

Judges adhere to legal realism (spirit of law) and thus take into account shifting, strategic interestsSlide9

Competing Theories

Rule of Man, Legal Formalism

Legal system follows a rule of

man: arbitrariness, secrecy, retroactivity, and incongruence

Judges adhere to legal formalism (letter of law) without being affected by shifting, strategic

interests

Rule of Man, Legal Realism

Legal system follows a rule of man: arbitrariness, secrecy, retroactivity, and

incongruence

Judges adhere to legal realism (spirit of law) and thus take into account shifting, strategic interestsSlide10

Investigation

Werner

Otto Müller-Hill

Georg

Konrad

Morgen

Rule

of Law, Legal Formalism

Medium-Low

Low-Low

Rule of

Law, Legal Realism

Medium-High

Low-High

Rule of

Man, Legal Formalism

Medium-Low

High-Low

Rule of Man, Legal Realism

Medium

-High

High-HighSlide11

Analysis

Rule of Law, Legal Formalism:

According to references: Not a large part of the Nazi SS and Wehrmacht judicial system

Military courts followed

a strict

rule of law more closely than SS courts but both applied legal realism in roughly the same

amount

Rule of Law, Legal Realism:

My investigation gives more evidence for this argument over the above one

Both military and SS judges favored legal realism but military courts more often applied rule of law than SS courts Slide12

Analysis

Rule of Man, Legal Formalism:

This argument is stronger than the other two because SS courts more often than not followed a rule of man while it was a mix in the military courts

Neither military nor SS judges favored legal

formalism

Rule of Man, Legal Realism:

This argument is the strongest because the SS courts adhered to a rule of man more than rule of law and it was a mix for the military courts

Both military and SS courts applied legal realismSlide13

More That Needs to Be Done

Rule by Law:

As a hybrid between a rule of law and rule of man both primary texts seem to favor a rule of law argument.

Have not yet decided on the specific criteria of what makes rule by law

Tentative Definition

Rule by law in this paper will be defined as a legal system having a semblance of legality, with codified rules, but those rules are applied in some cases in a rule of law manner and in others as mere rhetoric for a rule of man Slide14

Questions?