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
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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?