Legal Methods of the Nazis

Secret Laws – a legal method employed by the Nazis

The Nazis’ legal regime used many legal methods to advance Nazis’ ideologies and political ambitions. They were based on Totalitarianism principles under which the leader is just a functionary and a non-entity without the masses and the masses in turn lack external representation. Hitler was aware of this fluidity amongst the leader and the masses and how they were interdependence. In Totalitarianism, a leader would impose his thought and wills on the mass, which is deprived of thought and will. Hitler adopted this approach and totally removed the gap between him and the masses, and between thinking and acting. The use or abuse of this concept was the effective use of his secret laws. This was one of the legal methods employed by Hitler. During the Nazis regime, there were reported cases of existence of secret laws, such as that law that legalised wholesale killings in concentration camps.

Secret laws often indicated internal actions not published and had the potential of affecting rights and interests of citizen. Hitler’s order of wholesale killing in concentration acted as justification to validate the act as being lawful. There is the element of convenience that overrides any legal forms to carry out such secret orders or law and also that the Nazis’ courts discarded any statute irrespective of the fact that it suited their convenience or there was a fear that a lawyer-like interpretation might bring displeasure. Examples of such secret laws were related to killings in concentration camp, Nazi courts discarding statute, even including those enacted by Nazis. There existed a dual state – one is the normative state the existence of which is condoned by the Nazis and respected established or new laws, and the other is prerogative state which ignored such laws when necessary. Continued existence of a legal system was advantageous to the Nazis as it gave legality to the Nazis. Special decrees and courts removed enemies and Hitler was not bound to any legal norms. He issued personal orders to counter any law. Even in the judicial framework, the Hitler regime precluded the essential three requirements for a valid judicial system – fidelity to statutes, striving towards justness and legal certainty.

Hart-Fuller debate concerning the distinction between natural and positive laws vis-à-vis Secret Laws

Under Nazis’ legal regime, there was no guarantee of rule of law and the prerogative state became increasingly repressed. Two pertinent questions arise related to this regime. Number one is the question of legality or accountability issues related with Nazis secret law, and the second is whether Nazis law was law in actual sense.

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1. H Arendt, The origins of Totalitarianism (Houghton Mifflin Harcourt 1973).
2. Aileen Kavanagh and John Oberdiek, Arguing about law (Routledge 2013).
3. Ibid.
4. David Brooke, Q&A Jurisprudence (Routledge 2015).
5. Ibid.
6. David Dyzenhaus, Sophia Reibetanz Moreau, and Arthur Ripstein, Law and morality: readings in legal philosophy (University of Toronto Press 2007).
7. David Brooke, Q&A Jurisprudence (Routledge 2015).
8. Christopher Kutz, ‘Secret law and the value of publicity’ (2009) 22(2) Ratio Juris 197-217.

There was a 1944 case in which a verdict was rendered by a decision of a post-war West German court. This verdict triggered the Hart–Fuller debate. In that case, the German Court acquitted the judge of a military tribunal who sentenced the husband on a complaint by his wife for derogatory remarks made by him against Hitler, and held the wife guilty for utilizing a free choice a Nazi’s law to bring about the death or imprisonment of her husband. This case triggered the Hart-Fuller debate that revolves around the distinction between positive and natural laws and the extent of validity or invalidity of Nazis laws. Hart defends legal positivism whereas Fuller is against legal positivism. The current paper will examine the applicability of the principles by Hart and Fuller to the legal methods employed by Hitler, especially his secret laws.

Hart explains that the word “positivism” applies to contention that: a) the laws are commands of humans; b) there is no connection between morals and law, or law as-is and law as it should have been; c) analysis or study of meaning of legal concepts is to be distinguished from historical and sociological inquiries, and critical appraisal of law vis-à-vis social and moral aims and function; d) a legal system is closed logical system where decisions are deduced from predetermined legal rules by only employing legal means; and e) moral judgments cannot be established, as like statement of fact could by using rational argument, proof or evidence. Hart states that laws may not necessarily “produce or satisfy certain demands of morality.” As such, Nizas laws are laws as they are command of humans. While studying Nazis law, there should not be any historical and sociological inquiries and based on the principles of Totalitarianism, the laws serve the moral aims and function. Hitler used law as legal means and established a closed legal regime by using predetermine rules based on the goals the law desired to achieve. There is impossibility in establishing a moral scale to be used to validate laws made and as such according to positivism, Nazis laws are also laws without the element of morality. Hart, a legal positivist, relied on an Act of 1934 to present his points regarding the alleged unlawful act of the husband in the 1944 case. The act basically makes an act a punishable offence if a person publicly makes spiteful or provocative statements or malicious utterances against leading personalities of a nation. Hart criticised the German court for running away from the problem by stating that “when a statute is sufficiently evil it ceases to be law”. Hart allegedly assumed the Nazis legal regime as being a formal and valid legal system, and it has largely inhabited established core principle of law, except for a minority hard cases that were uncertain.

It could be perceived that Hart’s views above point towards an assessment tool that measure the extent of when a law is considered sufficiently evil to be designated invalid. But, how

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10. Simon Lavis, ‘The Distorted Jurisprudential Discourse of Nazi Law: Uncovering the ‘Rupture Thesis’ in the Anglo-American Legal Academy.’ (2018) 31 (4) International Journal for the Semiotics of Law-Revue internationale de Sémiotique juridique 745-770.
11. George Breckenridge, ‘Legal Positivism and the Natural Law: The Controversy Between Professor Hart and Professor Fuller’ (1964) 18 Vand. L. Rev.: 945.
12. HLA Hart, The Concept of Law (Oxford: Oxford University Press 2012).
13. David Dyzenhaus, Sophia Reibetanz Moreau and Arthur Ripstein, Law and morality: readings in legal philosophy (University of Toronto Press 2007).
14. Aileen Kavanagh and John Oberdiek, Arguing about law (Routledge 2013).
15. Peter Cane, The Hart-Fuller debate in the twenty-first century (Bloomsbury Publishing 2010).

would Hart and his legal positivism explained the laws of Hitler that leads to Holocaust? Laws played its part in Nazi rule and gave shape to Holocaust. For example, the Nuremberg Laws of 1935 could be considered an attempt to remove Jews from public life in Germany. Fuller takes an opposite stand to Hart’s where he claims that Hart advances “ideal of fidelity of law”, which is a positivist outlook attempting to find sense of law as an inherently moral project. Fuller accused legal positivism as allegedly carrying a managerial view of law, which originate from government and imposes on the citizens and view law as a one-way projection of authority. This finds support in the reference to the absence of a Rechtsstaat, a state of law, which refers to taking law outside of the principles of the rule of law and place a legal form that state could use to run. It is just a law, but not a rule of law and an authority, but without any legitimacy. This serves the reason why Fuller states that natural law with the internal morality principle could provide an alternative to legal positivism. Fuller does not defend the traditional natural law that is associated with higher law. According to him, natural law refers to multiple different and unrelated dimensions of normative reality. Fuller may not have drawn a line of contrast between these dimensions. Fuller finds natural law to be more adequate and accurate in portraying the structure of legal reality. He rejects any mergers of law and conceptions of what the law out to be. Fuller’s theory on internal morality of law is an alternative to Hart’s legal positivism, which he claims is deeply flawed. According to Fuller, internal morality of law comprises eight principles: “generality, publicity, non-retroactivity, clarity or intelligibility, non-contradiction, possibility of compliance, constancy through time, and congruence between declared rule and official action. The principle of internal morality as stated by Fuller finds rejection in Hart’s principle that legal positivism is based on “separation thesis,” which finds no link between law and morality and accordingly, if someone has a legal right to do a certain thing, it does not necessarily entail having a moral right to do it. The same is true vice versa. Legal rights are determinable by understanding laws that a society has, and moral rights are determinable by understanding true morality.

Based on these two different sides of explanation so far, it could be inferred that according to Hart, Nazis law was still law and morality does not have any role in validating them, whereas, Fuller finds the lack of morality invalidates a law thereby considering Nazis law as not being law in real sense. The claim that law was not law under Hitler’s regime could be demonstrated by reading into his speech at the National Court in Leipzig on 25th September 1930, which contains statement that the National Socialist movement would seek to reach its goals through legal means. He stated that the law was the means, but not the goal and so they aimed for a decisive majority in the lawmaking bodies, and when that happened they aimed to bring a form of state that corresponded to their ideas. Hart would be agreeing with

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16. David Brooke, Q&A Jurisprudence (Routledge 2015).
17. George Breckenridge, ‘Legal Positivism and the Natural Law: The Controversy Between Professor Hart and Professor Fuller’ (1964) 18 Vand. L. Rev.: 945.
18. Douglas Sturm, ‘Lon Fuller's Multidimensional Natural Law Theory.’ (1965) 18 Stan. L. Rev. 612.
19. Lon L. Fuller, ‘Positivism and fidelity to law: A reply to Professor Hart’ (1958) Harvard law review 630-672.
20. David Dyzenhaus, Sophia Reibetanz Moreau and Arthur Ripstein, Law and morality: readings in legal philosophy (University of Toronto Press 2007).
21. Joseph Mendola, ‘Hart, Fuller, Dworkin, and Fragile Norms.’(1999) 52 SMUL Rev. 111.
22. The Open University, ‘Unit 8A: Law and symbol: the swastika’ (2018) W340-18J Law, society and culture.

classical natural law theory, for Hart does not think that positive laws contrary to justice should be obeyed as a matter of conscience. Hart acknowledges there is existence of vast literature on the concept of Natural and ambiguities around positivism. He sees a difficulty in understanding and seeing the issues at stake when Natural Law is opposed to Legal Positivism.

Hart, while formulating the classical theory of natural law, states that the natural law has certain principles that are of true morality or justice, which are discoverable by human reason. He formulated positivism by acknowledging a minimum content of natural law. However, Fuller rejects any mergers of law and conceptions of what the law out to be. Fuller demonstrated certain legal principles that were employed in the Nazi legal regime. One was the secret laws, utilized in the Third Reich. The pervasiveness of these laws in the regime eroded and compromised the validity of the Nazi legal system. To further demonstrate the non-existence of law in Hitler’s regime, Fuller cited the difficulties in stating that ‘law is law’ in Hitler’s regime. Laws were upturned and any legal forms were easily by-passed by judges than. He cited the element of convenience behind the tendency of by-passing the legal forms. For these reasons, the morality of law was arguable degenerated to an extent that the laws under Nazi regime could not be called law. This could be seen in many Nazi laws and legal principles, including the Nuremberg laws where ambiguous and subjective ideological language was largely found, which gave them a very deliberate open texture. This flexibility was applied to further overall benefit of Nazi society.

Fuller states that Nazis law often breached core legal principles and they therefore cannot be called law. Secret Laws were passed in the Nazis legal regime to overturned laws under the order of Hitler to achieve their desired ends. There were many instances where Hitler’s law often bypassed existing rules and regulation, including community related laws. Some of the relevant events are listed here. Hitler announced in 1936 to the Reich Party Congress at Nuremberg for rebuilding Berlin as the capital of the Reich. This represents an example of the operation of the Führerprinzip, or leader principle, with which Hitler exercised complete control. This announcement bypassed the Berlin city administration. The Law for the Redesign of German Cities 1937 (Neugestaltung) was enacted and appointed architect Albert Speer as the General Building Inspector for Berlin, and he was given the complete control directly deriving his authority from Hitler. Another example of leader principle was the

case of Staatliches Bauhaus, originally a state, or publicly funded German art school and the most influential school of art, architecture and design that time. Nazis saw this as a threat and sought to destroy this school. They adopted an over-penetrating approach to achieve their goals. Such approach includes the subversion of the democratic process that were framed by laws and rules, and control of law enforcement agencies. Their approach led to turning the word ‘Bauhaus’ into symbol of radical left-wing culture. The staff and students of the school were mainly ethnic and it served to confirm Nazis fears. The Nazis regime starved the funds, took political control and in 1933 ‘Gestapo’ (Geheime Staatspolizei) – the secret – made an announcement to permit the Bauhaus to reopen but made dismissal and replacement of staff.

Fuller emphasized that the eight principles of internal morality were not complied within the Nazis legal regime. For instance, principle of generality did not extend to Jews; publicity signifies, which means no secret law, Nazis used it extensively; used retroactive rulemaking and application whenever required; clarity or understandable and non-contradiction - under Nazis dual states citizen never knew which law was applicable; possibility of compliance – Nazis law forbade marriage between Jews and non-Jews; Constancy – Hitler could overruled any law anytime; congruence – courts did not apply for convenience. The above instances are significant enough to demonstrate that Fuller’s principle on natural law and its application of Nazis laws do not validate Nazis legal regime, as it lacks the morality element. This approach or principle that the extent where the law becomes immoral would become unlawful became subject to Hart’s criticism. Hart became a critique to the principle that, “at certain limiting points, what is utterly immoral cannot be law or lawful” and stated that this principle “will serve to cloak the true nature of the problems with which we are faced and will encourage the romantic optimism that all the values we cherish ultimately will fit into a single system, that no one of them has to be sacrificed or compromised to accommodate another.” Hart finds lack of rationality in principle that there is no conformity of laws to principles of human conduct, which is morality. According to Hart, in the classical theories of Natural Law, there are principles of human conduct, which await human discovery by human reasons. Such principles will be valid only when man-made laws conform to them. This is simply a rejection of legal positivism. The second reasoning that rejects legal positivism presents lesser rational behind morality, where the legal validity connects with moral value. Accordingly, what Fuller invalidated Nazis law could not be applied in general. For instance, Fuller focused on publicity to indicated there should not be any secret law, but every government passes some executive orders not know to public. He cited under Nazis dual states citizen never knew which law was applicable, but the question is does every citizen know all the laws? He cited the need for congruence and stated the Nazis courts instead applied convenience. In contrast, it could also be stated that a court is bound to apply the most recent laws and there is no element of convenience in doing so. Accordingly, there is a

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23. Lisa Pine, Hitler's “National Community”: Society and Culture in Nazi Germany (Bloomsbury Academic 2017).
24. Albert Speer, Inside the third reich (Simon and Schuster 1970).
25. David Brooke, Q&A Jurisprudence (Routledge 2015).
26. H. L. A. Hart, ‘Positivism and the Separation of Law and Morals’ 71 (4) (1958) Harvard Law Review 593-629.
27. HLA Hart, The Concept of Law (Oxford: Oxford University Press 2012).

gap about defining when a law conforms to morality, who defines morality, and what is the extent that defines when a law becomes unlawful. Hart states that a confusion is created around one of the most powerful forms of moral criticism view when we protect against evil law by asserting that certain rules cannot become law because of their moral iniquity. The statement that “laws may be law but too evil to be obeyed” is a form of moral condemnation that everyone could understand and it makes an immediate claim to moral attention. A contrary stand is when it is asserted that evil things are not law, but this may not be believed by many people and if opened to consideration, it may open up a whole host of philosophical issues before its acceptance. Not to say the whole argument is ignorable, but the distinction could be valid and important when applied to any particular law of a system. It would be at least misleading if it is attempted to apply to concept of a legal system. A rule of law may, therefore, be said to exist when though it is enforced or obeyed in only a minority of cases. It cannot be said for the legal system as a whole. This principle of separation between laws and a legal system is applicable to connection between moral conceptions of what law ought to be and law in its wider sense. Hence, there is little arbitrariness in the connection between law and moral standards and justice.

Common ground

The Hart–Fuller debate revolves around morality and law, which demonstrated the divide between the positivist and natural law philosophy. Hart took the positivist view and argued that morality and law were separate. Fuller's reply argued for morality as the source of law's binding power. The debate signifies the role of Nazi law in understanding the concept of law.

Fuller description of the Nazi legal system shows certain similarities. He states the Nazis regime clothed itself in legal form, but maintains that legal positivism contributes to corruption of law, but natural law acts as a barrier against it. According to Hart, two reasons could explain the natural and necessary overlap between legal and moral standards. The concept of law took a different view after the war and it inculcated the essential moral principle of humanitarianism, as was applied by German courts in certain cases, including the 1944 case between the husband and wife. Due to such application, Naizis’ local war criminals, spies, and informers under the Nazi regime were punished. All these accused claim that their acts were not illegal under the Nazis’ legal regime. But, the courts invalidate such claims as they contravened fundamental principles of morality. Hart states that “Law is not morality; do not let it supplant morality.” As an observation, Hart or Fuller could not concretely put up a theory to reason to understand nature the actual Nazi legal system.

The only issues between their position may be the criteria of relevant and importance. It seems their positions are mainly based on meaning of morality and definition of law. Hart was not bothered by Fuller’s claim that Nazi laws were substantively unjust, or possessed undesirable formal characteristics. Fuller does not contradict Hart’s claim that there were characteristics of a formally valid legal system in the Nazi legal system, or that the system did not follow certain procedures the legal system.From a democratic accountability perspective, secret laws incur danger to the society. Such dangers though go beyond democratic accountability. The existence of secret law is a sign of tyranny, which in itself contradicts concept of law. Theoretically, a legal regime cannot be secret and the criteria of publicity do not necessarily validate the laws. Practically though, secret laws and secret governmental operations often form well‐accepted aspect of governmental power. Secret law contradicts the orientation of law towards the moral and political space.

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28. George Breckenridge, ‘Legal Positivism and the Natural Law: The Controversy Between Professor Hart and Professor Fuller’ (1964) 18 Vand. L. Rev.: 945.
29. Peter Cane,, ed. The Hart-Fuller debate in the twenty-first century (Bloomsbury Publishing 2010).
30. Ibid.
31. Christopher Kutz, ‘Secret law and the value of publicity’ (2009) 22(2) Ratio Juris 197-217.

Continue your exploration of Legal Implications of Secret Trusts in Wills with our related content.

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