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Home , Gustav Radbruch, Positive law, Rechtsstaat, Rule of law

TBA BRIEFINGS NOVEMBER 2015 ♦ TOPEKA ASSOCIATION ♦ Defining Rule of TBA Office Tiffany Fisher, Director Rechtsspositivismus 534 S. Kansas Avenue, Suite 1130 Topeka, Kansas 66603 Last month’s column briefly covered the historical Phone: 233-3945 background of after I through the email: [email protected] rise to power of the National Socialists under Adolf Hitler. website: www.TopekaBar.com Also, the post World War II proceedings at Nuremberg were discussed, emphasizing the so called Board of Directors conducted between March 5 and December 4, 1947. This James P. Rankin, President Laura Graham, President-Elect month, consideration will be given to the philosophical, Dave Newbery, Treasurer political, and psychological influences on the German Diane Bellquist, Secretary legal community, specifically , which contributed Mark Bennett, Director to the horrific and arbitrary carried out during Glenda Cafer, Director the Nazi regime, 1933 to 1945. In considering German Vince Cox, Director By Jim Rankin James R. McEntire, Director , Germany’s —rather than common Kyle Mead, Director law—tradition must be kept in . Thus, when the issue of is discussed Amanda Vogelsberg, Director in the context of Weimar and the focus is on or Jim Wright, Honorary President positivism. This difference from the Anglo-American legal tradition is not, however, significant for present purposes given the basic premise of positivism. Committee Chairpersons Stephen W. Cavanaugh, -Bar Three German legal philosophers, including who was mentioned Terri Bezek & Anthony Mattivi, Continuing Legal in last month’s column, provide the analytical foundation for the judicial actions and interpretations during the Nazi regime. Anthony Mattivi & Ron Wurtz, Alan Alderson, in 1921, Radbruch accused the German of “hiding behind ‘judicial Vince Cox, Law Day objectivity’ to exercise a form of justice that was an ‘alien authoritarian body in Christopher Joseph, Legislative 1 Mary Christopher, Medical-Legal the social people’s .’” Radbruch’s comment provides a point of entry into the Shaye Downing & Doug Shima, Membership traditional thinking of German judges more than ten years before Hitler “legally” Dan Gronniger, Memorials assumed dictatorial power. Clearly, many members of the post-World War I judiciary Pedro Irigonegaray, Naturalization grew to maturity in a rigid monarchial imperial state, and did not drop their monarchist Scott Sumpter, sympathies in 1918. Many distrusted , and innovative forms S. Lucky DeFries, Prof. & Grievance Ryan Hellmer, Program & Entertainment of social planning backed by the Social Democrats in the 1920s. Additionally, behind Natalie Haag and Laura Graham, Public the tradition bound views of German judges, stood the special jurisprudential tradition Roger Fincher, Public Service of Rechtsspositivismus ().2 Sarah Morse, Publications Sarah Morse, Young Division in general, positivism emphasizes the that law is a mere social construct. Carol Ruth Bonebrake, Service to the Bar That is, the law is nothing more than posited (i.e. manmade as opposed to “natural”) norms provided by (or as often happens in the tradition, by Lawyers’ Assistance Committee If you or someone in your office feels a need to discuss a judges). Historically, positivism served as a rationalist counter to the classical natural problem involving alcohol, substance abuse or depression, law tradition. In the positivist view there are no necessary—first order—constraints on or with life in general, please call a member of the TBA law’s content. does not demand any ethical content to a law. There is Lawyers’ Assistance Committee. Confidentiality assured. a strict insistence on dividing law from making of justice, humanity Jeb Benfer, Chair...... 233-2323 or higher order considerations irrelevant.3 Positivism demands only that a law—to Kerry Gasper...... 233-8862 be valid law—be properly enacted or recognized by a duly appointed legislative or John Harper ...... 354-8188 administrative body or . Claude Lee...... 783-8334 Billy Rork...... 235-1650 Positivist thinking is traceable to many sources but in Western tradition, one finds Jon Snyder...... 235-5500 the idea suggested, through emphasis on the will of the prince in state craft, by the Bryan Smith...... 234-2453 Or call KALAP toll-free at 1-888-342-9080 Florentine Republican Niccolò Machiavelli (1469–1527). Later, in England, (1588–1679) examines the empirical aspects of maintaining societal order. ♦ TBA BRIEFINGS ♦ Hobbes suggests that justice is nothing more than conformity with the right; right the law, as given by the ruler. Editor: Sarah Morse - 233-0593 or smorse@ gseplaw.com in the , Hobbes asks how order is possible in a chaotic . Hobbes Contributors: Terry Beck, Doug Shima, Amanda Kiefer continued on page 4 and Rich Eckert. ♦ Page 2 ♦ TBA BRIEFINGS NOVEMBER 2015 continued from page 2 - President's Column determinate content of positive law happiness.” In Locke’s writings and wrote at the of the English Civil War preempts disputes arising as to what law even more in the writings of Jefferson, where two sides warred, in part, over is, and so preserves the . if there is a sovereign command, it is one side’s refusal to accept the King’s David Dyzenhaus, Law as , ’s the command of a higher order power views of social and political order as Critique of , (1998) pp. 3-4 transcending the human into the realm law. South African legal scholar David of reason. For Jefferson, the higher While Machiavelli was perhaps the first Dyzenhaus explains Hobbes’ answer in order was the Creator. Unfortunately, early modern thinker to propose the idea these words: Locke and Jefferson, who seem to of sovereign command as a foundational reintroduce higher order Hobbes’ answer to the question is justification for law, it is from Hobbes that into the question of whether a law is that we require a rational justification we learned a sovereign must stand outside the for political and legal order, one that law, wrote in English. This is not to say law to be a law giver. The sovereign cannot appeals to reason alone. He argues that German and other continental thinkers be politically or legally constrained. For reason leads us to accept a positivist were not to their influence, but Hobbes, the sovereign is only constrained theory of law which requires virtually until 1918, Germany did not unconditional obedience to a legally by a uniquely understood natural law— the profound limitations on monarchial unconstrained sovereign. Hobbes’ law subject to interpretation only by the appeal is to the reason of individuals. authority experienced in the English sovereign. In simplest terms then—at least . . Individuals can be taken to agree speaking world. was in the in a state of emergency—we are left with the that peace and order, whatever its actualized in the Kaiser fundamental conclusion that might-makes- , are preferable to chaos. Thus, making legal theorizing about sovereign each individual should see that it is right in the protopositivist political world command (and traditional positivist rational to submit to the of view. the sovereign, whatever the content of thinking) a consistent concomitant that judgment. Further, the sovereign efforts to discern an appropriate means to real world .4 In should express his judgment through of keeping order did not stop with Hobbes. Germany, therefore, the Kaiser’s law, a system of positive law, since the Later philosophers as expounded by the Reichstag and wrote on the subject, executed by the chancellor and the civil including service, was law. German monarchial (1632–1704) and sovereignty was crushed in 1918. With this defeat, Germany fell into chaos and KICK (1743–1826). In his the old social order was jeopardized by Second Treatise on the rise of communism. There was an , written emergency; a siege state. in 1690, Locke BACK The response, as noted last month, postulates that all WITH THE was the Weimar . While the people are born with Weimar Constitution adopted liberal the inalienable right concepts, there was enough potential in to life, , and the instrument for the power of sovereign . With Locke, command to swamp democracy. During we find a birthright this chaotic period, three German which in 1776, speaking legal theorists stand out as Thomas Jefferson bearers of which, in one incorporates into case, served to weaken the German the Declaration of JUST IN CASE and, in two other cases, to A PODCAST BY Independence where provide German law a new beginning it is claimed as self- after World War II. evident that “all men are created equal” Carl Schmitt and that they are carl Schmitt (1888–1985) taught Hosted by Paige Nichols, and featuring criminal-law cases just in from the United “endowed by their States Supreme , the Tenth Circuit, and the Kansas Appellate Courts at a series of universities establishing a Creator with certain significant reputation as a legal theorist. inalienable TUNE IN AT MONNAT.COM/PODCAST Responding to the political disorder including life, liberty following World War I, Schmitt, 200 W. Douglas, #830 | Wichita, KS 67202 | 316.264.2800 and the pursuit of continued on page 5 ♦ Page 4 ♦ NOVEMBERTXB 2015XA TTBAXB BRIEFINGSXA TOPEKA BAR TOPEKA BAR ASSOCIATION ASSOCIATION

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The Kansas CLE Commission awarded Jan Hamilton as the recipient of the 2015 Robert L. Gernon Award for Outstanding

Service to Continuing in Kansas. Jan has practiced law in Topeka since 1973, most of that in private practice until he was appointed as the Standing Chapter 13 Trustee for Topeka in 1998, an appointment he continues to hold today. The Commission received many letters in support of his nomination. Hon. Cynthia Norton, a United States Judge for the Western District of Missouri, wrote in her nomination letter, “Kansas is blessed to have so many lawyers who give unfailingly of their time and knowledge in order to make our lawyers better. But Jan stands out even among these, in terms of his willingness and commitment to continue helping lawyers and judges, even after an otherwise lengthy and stellar career. Justice Marla Luckert received the Mentorship Award at the second Women of Influence Awards on October 22, 2015.

Have you heard something newsworthy? Share it with us at [email protected]. continued from page 4 - President's Column bloody battle, can be transformed into a parliamentary following Hobbes, developed a theory of a strong executive, debate and permit the decision to be suspended forever in including the possibility, under certain circumstances, of everlasting discussion. . Additionally, Schmitt developed the idea that Carl Schmitt, Political Theology: Four Chapters on the the Volk was meaningful only in the context where the people of Sovereignty originally published 1922, University of Chicago are understood as an utterly homogeneous group. Obviously, Press (2005) p.63. this idea had serious implications for minority groups within Germany during the 1930s and 1940s. Somewhat more ominously for the liberal democratic project, Schmitt wrote: as the German nation devolved deeper and deeper into economic, political, and social chaos, Schmitt argued for a All significant concepts of the modern theory of the state are legal adequate to undo liberal democratic regimes secularized theological concepts not only because of their historical development—in which they were transferred from during exceptional . Schmitt found this principle rested in theology to the theory of the state, whereby, for example, the state of emergency provision of the Weimar Constitution, the omnipotent god became the omnipotent lawgiver—but Article 48. In other words, Article 48 was the practical key, in also because of their systematic structure, the recognition of Schmitt’s political and legal theorizing, to securing order within which is necessary for a sociological consideration of these the society because through Article 48, a supreme leader was concepts. The exception in jurisprudence is analogous to the miracle in theology. Only by being aware of this analogy can empowered to express the true will of the German people. we appreciate the in which the philosophical of in Schmitt’s theory, the constitution is based either on the state developed in the last centuries. the monarchial or democratic principle. For Schmitt, in the Carl Schmitt, Political Theology: Four Chapters on the Concept event of an attempt to develop a normative fiction such as “the of Sovereignty originally published 1922, University of Chicago sovereignty of the constitution,” the important issue of actual Press (2005) p.36. power mechanics is ignored. For Schmitt, the only practical Reading these quotes, one can hear the millenarian fervor of solution is a monarchial style constitution with substantial Der Führer’s declaration of the “Tausendjährige Reich.” powers of sovereign command. The sovereign transcends the constitution, such as it may be written, and the sovereign’s schmitt’s Hobbesian form of positivism lent itself nicely to activity may not be constitutionally prescribed. the National Socialist movement and not long after joining the Nazi Party in 1933, Schmitt was referred to as the crown jurist in Schmitt’s view, the liberal is to subject the state’s of the Third Reich. Unfortunately for Schmitt, more radical power to the and to eliminate or weaken the sovereign. Nazis, including the editors of the SS magazine turned against But for Schmitt, this ideal of absolute normativity constitutes a Schmitt in a way that would have been life threatening had he tenuous . No polity can simply erase, through legal not been under the protection of Hermann Göring. Nevertheless, fabrications, required acts of sovereignty. Famous, even today, given the personal risks, Schmitt, while remaining a Nazi party for pithy quotations, Schmitt wrote of liberalism as follows: member, began to lower his public persona in the late 1930s. The of liberalism is negotiation, a cautious half measure, in the hope that the definitive dispute, the decisive continued on page 6 ♦ Page 5 ♦ TBA BRIEFINGS NOVEMBER 2015 continued from page 5 - President's Column kelsen attempted to escape this Radbruch’s legal philosophy seems much after the war, Schmitt was arrested problem by relying on the idea that like that of Kelsen’s. That is, Radbruch by the Allies but since he was merely an individuals, including judges, must decide seems to be a relativist and a positivist. In academic supporter of National what is right and wrong and whether to a 1934 paper, Radbruch states: and did not meaningfully involve himself obey or disobey the positive law, even at Because a judgement on the in the practical implementation of the risk of personal harm. This escape, or error of the differing convictions Nazi , he was released. Schmitt however, seems like a hollow solution in law is impossible, and because refused de-nazification and died in 1985 given the personal risk associated with . . . uniform law for all citizens is unrepentant.5 necessary, the law-giver faces the task disobedience to Nazi . Amazingly, of cleaving with a stroke of the sword Kelsen relied on to conclude the Gordian knot which jurisprudence that since morality is individual, it is up cannot untangle. Since it is impossible Born in Prague, Austria- to each citizen to decide which to to ascertain what is just, it must be (now the Czech ) to a German obey. Unfortunately, this leaves persons decided what is lawful. In lieu of an act of truth (which is impossible) an speaking Jewish family, Hans Kelsen (including judges) in precisely the same moved to Vienna in 1884 at the age of act of authority is required. Relativism position they would find themselves in if leads to positivism. three. Pursuing graduate studies in Vienna, they were wedded to a particular vision Kelsen studied Dante and Machiavelli. of what nature, , or reason might Haldemann, Gustav Radbruch vs. Hans Kelsen’s reading of Machiavelli pointed suggest regarding the validity of law. Kelsen: A Debate on Nazi Law, Ratio to the danger of executive power operating Juris Vol. 18 No. 2 G 2005 (162-178). While Kelsen’s total separation of without appropriate legal constraints. Radbruch’s major 1932 treatise, Kelsen began legal studies and became a law and morality, and his views regarding positive law set in a relativist world view Rechtsphilosophie, reflects similar full professor of public and administrative thinking. Radbruch argued that judges law at the University of Vienna in 1911. are suspect, he did strongly favor . Kelsen’s ideas were based upon must maintain a strict loyalty to the Today, Kelsen is best known for his his reading of the common law tradition, law and that assuring safety and order book entitled The Pure Theory of Law, particularly the American constitutional is their most essential role. In both his published 1934. An expanded edition writing of Chief Justice . pre and post Nazi writings, Radbruch, was published in 1960 after Kelsen Kelsen, in assisting with drafting post- insists that positive law is required for 6 joined the faculty at the University World War I for both predictability. of California Berkeley. Kelsen’s Pure Austria and Czechoslovakia, carefully in 1945, Radbruch introduced a post- Theory emphasized “legal science” as delineated the domain of judicial review. war thesis arguing positivism had rendered separable from the realms of politics and Kelsen represents an early twentieth the German defenseless morality. Kelsen believed that in order to century European understanding that against the arbitrary and criminal laws protect the law from moral and political was a critical safeguard against abuse of of the Nazis. Legal positivism, argued influences, it needed to be separated executive power. Radbruch, played a role in the Nazi from these spheres. Kelsen used the term Gustav Radbruch – Recht und Moral takeover and positivism bound judges to “Pure” to mean that the theory of law follow Nazi laws. Radbruch wrote: must be logically self-supporting and Born in 1878, Gustav Radbruch not dependent on extra-legal values as This view of a law and of its validity passed the state bar examination in (we call it the positivistic theory) has would be the case in natural law theory. 1901 and became a professor of law at rendered jurists and the people alike Kelsen theorized that law arises from a in 1904. Radbruch joined defenseless against arbitrary, cruel, or basic (Grundnorm) accepted by Germany’s Social Democratic Party and criminal laws, however extreme they a substantial portion of the community. was elected to the Reichstag. In 1921, might be. In the end, the positivistic The posited law then is developed from theory equates the law with power; he began a brief service as the Weimar there is law only where there is the Grundnorm. Unfortunately, the basic Minister of Justice. In 1933, after the power. norm of 1930s and 1940s Germany was Nazis came to power, Radbruch was the principle of absolute executive power dismissed from the civil service and, Radbruch, Five Minutes of Legal in Der Führer. That is, Grundnorm is consequently, lost his university position. Philosophy, (Org. Pub. 1945) Trans. Litschewski and Paulson Oxford Jr. of der Führer’s diktat. From that a German During the Nazi period, Radbruch retired Legal Studies, Vol. 26, No.1 (2006) p. 13. judge, wedded to Kelsen’s pure theory of from public life. positivism, would per force conclude that Such statements by Radbruch have led the decrees of Hitler were good law and prior to the end of World War II, must be strictly observed. continued on page 7

♦ Page 6 ♦ NOVEMBER 2015 TBA BRIEFINGS continued from page 6 - President's Column exception arises where strict adherence to of takes precedence some to believe he attempted to exonerate the statute creates an unbearable . over a judge’s personal attitudes regarding the German judiciary working during the Radbruch sets forth his formula in these injustice. Obviously, Radbruch’s Nazis regime. Regardless, his post war words: formula combines the critical feature of work focused attention on the problems The conflict between justice and the positivism—predictability—with moral associated with statutory positivism. reliability of the law should be solved considerations found in the natural law. in favor of the positive law, law enacted in 1946, Radbruch introduced what Unfortunately, Radbruch’s formula was later referred to as the “Radbruch by proper authority and power, even in cases where it is unjust in terms does not fully resolve the problem faced formula”. The formula makes the most of content and purpose, except for by judges in balancing justice against the sense in the context of a civil law system. cases where the discrepancy between political and societal demand for legal Nevertheless, Radbruch’s formula is the positive reaches a certainty. An individual judge might, for level so unbearable that the statute has instructive even in the common law example, find a death penalty statute so tradition because it divides and attempts to make way for justice because it has to be considered “erroneous law.” “unbearable” that the judge’s sense of to assign practical utility to the two justice requires him to find the statute is fundamental principles of jurisprudence. Radbruch, Gesetzliches Unrecht und “erroneous law.” This might make sense In general, Radburch’s formula holds übergesetzliches Recht, Süddeutsche in certain circumstances, but what if the that a judge encountering a statute which Juristen-Zeitung (1946) death penalty—as a means of he perceives may be unjust must first radbruch’s formula provides a for certain —is part of a long consider the statute from the standpoint means of avoiding extreme injustice in standing legal tradition extending to the of positive law. Assuming the law was difficult cases but, in ordinary situations, adoption of the ’s foundational enacted by proper democratic authority, Radbruch argued that morality should not law? Regardless of the obvious weakness the statute must be upheld. This resolves determine the validity of an otherwise in Radbruch’s post war formula, the idea the matter in most cases. The only lawfully enacted law. In other words, the continued on page 8

♦ Page 7 ♦ TBA BRIEFINGS NOVEMBER 2015 continued from page 7- President's Column worked in what they believed was plunder is divided according to an has had important practical benefits in Belagerungszustand – a siege state. The agreed convention. If this villainy wins post war German criminal proceedings, following fictionalized statement makes so many recruits from the ranks of the including trials of East German border the point. demoralized that it acquires territory, guards after unification.7 “[T]o understand it, one must establishes a base, captures cities understand the period in which it and subdues peoples, it then openly Abschließend happened. There was a fever over the arrogates to itself the title of kingdom, land. A fever of disgrace, of indignity, The influence of legal positivism in of hunger. We had a democracy, yes, but which is conferred on it in the eyes of German judicial thinking was one factor it was torn by elements within. There the world, not by the renouncing of leading to legal abuses by the National was, above all, fear. Fear of today, fear aggression but by the attainment of Socialists. Hitler and the Nazis acted of tomorrow, fear of our neighbors, . quickly and dramatically to change fear of ourselves. Only when you understand that you can understand St. Augustine, The City of God, Book IV, normal judicial operations in ways having what Hitler meant to us. Because he Ch. 4 (Circa. 426 AD). nothing to do with judicial philosophy. said to us: ‘Lift up your heads! Be The Nazi party and its various organs 1 McElligott, Rethinking the , Authority and proud to be German! There are devils Authoritarianism 1916 – 1936, (2014), p. 111. were criminal organizations praying among us. Communists, Liberals, 2 In addition to positivism, another legal theory undoubtedly affected the upon people’s fear of economic and Jews, Gypsies! Once the devils will be destroyed, your miseries will be thinking of some German judges. That is, the German historical theory of social disorder. Intimidation by Hitler’s law. This theory, which arose in conjunction with the Romantic movement destroyed.’ ... What difference does it in literature, was a reaction to Enlightenment rationalism. Essentially, this paramilitaries in the early 1930s and later make if a few political extremists [and theory held that the law is an organic consciousness of the people’s spirit by Nazi security services, undoubtedly minorities] lose their rights? ... ‘The (Volksgeist). Unfortunately, the emphasis on the people’s history and ideals contributed to the willingness of judges country is in danger.’” offered Nazis a principled justification for abhorrent race laws. to deem themselves bound by statues and 3 Interestingly, contemporary Positivists seem to assume that for posited law Judgement at Nuremberg, Abby Mann, p. to be legitimate, it must satisfy the standards of liberalism (the current, in- decrees. Additionally, German thinking 89 (2002) vogue standard being the requirement of social equality) which somehow during the inter-war and war years must hovers over the posited law. Such standards are seen as imminent in legitimate laws. be considered globally. The 1920s and siege state or not, the Nuremberg determined, and we, today 4 Following German unification, Bismarck rejected the British model of 1930s were generally a time of social limited constitutional . In the monarchy of Bismarck’s German and economic upheaval throughout the accept that nothing could justify judicial Empire, the Kaiser wielded considerable actual executive power. Obviously, compliance with Nazi laws. The this model of monarchy was discredited and abolished following Germany’s world. This was a time when democratic defeat in World War I. was being worked out in of atrocities at Auschwitz, Majdanek, Sobibor, Mauthausen, Ravensbrueck, 5 Carl Schmitt produced a significant body of work during his lifetime and Western society. In the United States, the much has been written about his work after his death. Perhaps the most Lochner Court’s doctrine of substantive Bergen-Belsen, Buchenwald, and useful introduction to Schmitt is found in a collection of essays contributed Dachau, to name only the most well- to and edited by David Dyzenhaus, Law as Politics: Carl Schmitt’s Critiques was being undone to make of Liberalism (1998). Much of my superficial understanding of Schmitt way for constitutional approval of social known camps, easily overwhelms any comes from this collection. 8 and working condition legislation. In arguments for the judges’ . This 6 There appears to be considerable scholarly disagreement about the pre Europe, outside of Germany little was is true because of the Western traditional and post war nature of Radbruch’s . See Heather Leawoods, Gustav Radbruch: An Extraordinary Legal Philosopher, 2 WASH. U.J.L. & POL’Y settled regarding political and judicial way of thinking about law which could 489 (2000), http://openscholarship.wustl.edu/law_journal_law_policy/vol2/ adjustments necessary to stabilize a not be ignored. The Nuremberg trials are issI/16. Regardless of his obvious pre-war preference for positivism, it does appear Radbruch was concerned with judicial formalism and rigidity long democracy in the inter-war industrial in fact, best justified based upon such before the Nazis came to power. ideas and traditions. Radbruch and Kelsen age. Even Britain treated this period 7 For an interesting discussion of Radbruch and Hans Kelsen see: as extraordinary adopting oppressive acknowledged the relevance of these Haldemann, Gustav Radbruch vs Hans Kelsen: A Debate on Nazi Law, ideas as principles of law. Long before Ratio Juris Vol. 18 No. 2 G 2005 (162-178). For a better understanding of emergency powers in . Radbruch’s concept of Rechtsstat, See Hildebrandt, Radbruch’s Rechtsstaat Weimar, Hitler, and the Nazis, there was and Schmitt’s Legal Order: Legalism, , and the Institution of Law, Disorder at home, rapid change a philosopher, living in a time of political Critical Analysis of Law Vol. 2, No. 1 (2015). abroad, a new and unfamiliar constitution, and social upheaval, who seemed clearly 8 Machiavelli, Hobbes, and Schmitt might have approved of President a jurisprudence teaching that judges must to understand the importance of morality Roosevelt’s 1937 attempt to “pack” the Supreme Court in order to achieve his New Deal executive goals. not cross the boundaries of statutory text as a component of law: in order to offer a new way of reading 9 Germany was not alone in its reaction through its justice system to the fear Remove justice, and what are kingdoms of communist subversion. See Gitlow v. New York, 268 U.S. 652 (1925) a statute and lack of a judicial review and Whitney v. California, 274 U.S. 357 (1927). Germany, in the 1930s tradition, provided German judges but large scale criminal gangs? What and 1940s, was not the only country in the world with shameful race laws. are criminal gangs but petty kingdoms? Also, the compatible theories of Social Darwinism and eugenics influenced at Nuremberg with the background law – and judges – elsewhere in the world. For example, in 1927, the United for asserting their inability to resist A gang is a group of men under the States Supreme Court, in a case yet to be expressly overturned, ordered an 9 command of a leader, bound by a American citizen sterilized to prevent propagation of “idiots” and to protect enforcement of Nazi laws. German the health of the “state.” See Buck v. Bell, 274 U.S. 200 (1927). judges in the 1920s through the War compact of association, in which the

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