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The Conundrum of Nazi Law: an Historiographical Challenge to the Anglo-American Jurisprudential Representation of the Nazi Past

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The Conundrum of Nazi Law: an Historiographical Challenge to the Anglo-American Jurisprudential Representation of the Nazi Past The Conundrum of Nazi Law: An Historiographical Challenge to the Anglo-American Jurisprudential Representation of the Nazi Past Simon Lavis BA (Hons), MA, LLB (Hons), LLM Thesis submitted to the University of Nottingham for the degree of Doctor of Philosophy July 2015 Abstract The question of whether Nazi law was valid law has been at the background of jurisprudential discourse since the Hart-Fuller debate in the 1950s. The enduring focus of that discourse on the validity question – the conditions of validity for law – and the separability question – the nature of the relationship between law and morality – has consigned the Third Reich to a specific jurisprudential role as a limit case for positivism and natural law. This dissertation elucidates and interrogates that role, using recent empirical and theoretical historical research to challenge its basis and assert the substantive relevance of the Nazi past for present legal theoretical concerns. It argues that the jurisprudential representation of Nazi Germany is flawed. It relies on a hypothetical, superficial, evil straw man version of the Third Reich that bears little resemblance to its actual history. It also treats Nazi law as the paradigmatic, archetypal wicked legal system. This is informed by an underlying narrative of rupture between Nazi Germany, including its legal system, and the contemporary concept of law. The positivism/natural law dichotomy around which the discourse is structured is consequently incapable of adequately explaining and incorporating Nazi law. This dissertation draws on the legal theoretical writing of David Fraser to examine how it might be reimagined to achieve this. The narrative of rupture that informs jurisprudence was constructed at Nuremberg and proliferated into historical understanding, public consciousness and, via the Hart-Fuller debate, jurisprudential discourse. Over recent decades it has been revised within historiography but its successor narratives have not made their way into jurisprudential discourse, which remains largely isolated from the historical discipline. This dissertation shows how the actual, historical case of Nazi law is not – but ought to be – part of the jurisprudential concept of law. Acknowledgments The process of researching and writing this dissertation has challenged me in ways I did not think possible and it would not have been completed without the support of a number of people. I owe Professors David Fraser and Noel Whitty a debt of gratitude for their diligent supervision. They have kept me on track, often despite my best efforts, and been generous with their time, knowledge and expertise. Their rigorous standards have given me something to strive for and their always timely comments on my writing a basis for improvement. My PhD research would not have even begun without the assistance of a three-year studentship from the Arts and Humanities Research Council. I am very grateful for the opportunity they gave me to dedicate myself to this research. I owe thanks to all those with whom I have discussed my research over the past four years and who have enriched my thinking. In particular, my conversations with Dr Cosmin Cercel about our shared interests have been a source of intellectual inspiration and personal support since he joined the law school. He has often helped me recall the joy of academic endeavour when writing was at its hardest. Dr Nik Wachsmann has made time to see me, especially when I was thinking of embarking on a PhD while working in a law firm. It has been a decade since he supervised my MA dissertation and the fact I have reached this point owes much to his counsel. I have benefitted greatly from those I have come into contact with at the University of Nottingham and the Open University law schools. My fellow postgraduates at Nottingham have been a source of friendship and a valuable distraction and the School’s staff have provided a supportive working environment. The OU has been generous in enabling me to complete my PhD alongside my work there. The enthusiasm and encouragement of my colleagues in the Law School, some of whom were in the same boat as me over the last year, is greatly appreciated. In particular, the time and care Carol Howells spent proof reading my thesis prior to submission has been invaluable. I am thankful for the support of my wider family. No one deserves my praise and gratitude more than my wonderful wife Katie. Thanks to her, our life together has continued to grow and flourish during these years, a period where time can seem to stand still. She has supported me, suffered alongside me, picked me up, helped me plan my writing and provided me with the most fantastic moments, none happier than our wedding day. She has helped me to change my life and achieve my dream. I love her with all my heart and dedicate this thesis to her. Hopefully one day she will read it! Table of Contents Chapter One: Introduction: ‘the law under National Socialism is typically regarded as having constituted a complete break from modern legal norms and standards’ ..............1 I. The Problem with Nazi Law .....................................................................................1 A Thesis, Aims and Approach ..................................................................................1 B Challenging the Legal Academy with the Nazi Past ................................................5 II. Legal and Historical Concepts: Defining the Scope ....................................................9 A Legal Categories..................................................................................................9 B Exploring Jurisprudence and ICL Scholarship....................................................... 11 C Historical Terminology ...................................................................................... 15 III. A Selective Review of the Development of the Legal History of Nazi Germany ..................................................................................................................... 18 A The Development of the Anglo-American Understanding of Nazi Law .................. 18 B Encounters between the Academic Legal Discipline and the Nazi Past.................. 22 IV. Conclusion: Taking the Thesis Forward ............................................................... 24 Chapter Two: (Mis)Representing Nazi Germany in Jurisprudential Discourse: ‘especially resistant to exploring the moral, ethical, and political significance of events in Europe between 1933 and 1945’....................................................................... 28 I. Introduction ......................................................................................................... 28 A Jurisprudence Rejecting the Nazi Past ................................................................ 28 B Analysing Jurisprudential Discourse ................................................................... 29 II. Jurisprudence and the Nazi Past ............................................................................ 31 A Preconceptions about Jurisprudential Engagement with Nazi Germany................ 31 B The Structure of Jurisprudential Discourse ......................................................... 34 III. Jurisprudential Representation of Nazi Germany: A Superficial, hypothetical Wicked Straw Man ................................................................................... 39 A Key Characteristics of the Representation of Nazi Germany................................. 39 B From the Historical to the Hypothetical Realm.................................................... 44 C The Treatment of Nazi Law ................................................................................ 47 IV. The Problem with the Jurisprudential Misrepresentation of Nazi Germany........... 50 V. Conclusion: An Implicit Narrative of Rupture and Discontinuity ............................... 52 Chapter Three: The Hart-Fuller Debate and the Genesis of Jurisprudential (Mis)representation: ‘Nazi law should remain at the center of our jurisprudential focus today’ .................................................................................................................... 55 I. Introduction: A Restricted Form of Jurisprudence ................................................... 55 II. The Hart-Fuller Debate and its Representation of Nazi Law ..................................... 56 A Introducing the Hart-Fuller Debate .................................................................... 56 B The Treatment of Nazi Germany ........................................................................ 62 III. Evaluating the Hart-Fuller Debate ...................................................................... 67 A Problems with the Treatment of Nazi Germany .................................................. 67 B The Jurisprudential Legacy of the Hart-Fuller Debate .......................................... 74 IV. The Hart-Fuller Debate Up To Date: A Case Study of 50th Anniversary Literature .................................................................................................................... 77 A General Themes in the 50th Anniversary Literature ............................................ 77 B ‘The Hart-Fuller Debate in the Twenty-First Century’ .......................................... 80 C The NYULR Symposium ..................................................................................... 86 V. Conclusion ..........................................................................................................
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