Wednesday, February 10, 2010

Kurlander on Hilger on the Rechtsstaat in the Third Reich

The Law of the Jungle is the title of a review by Eric Kurlander, Stetson University, of Christian Hilger's Rechtsstaatsbegriffe im Dritten Reich: Eine Strukturanalyse (Tübingen: Mohr Siebeck, 2003), commissioned by H-German. It commences:
In the nearly two centuries since its formulation by the legal philosopher Robert von Mohl, the concept of the German Rechtsstaat has meant different things to different people. The putative father of German conservatism, Friedrich Julius Stahl, believed the principles of the Rechtsstaat could be reconciled with a corporate, monarchical state. Two generations later Hugo Preuß, author of the Weimar constitution, argued to the contrary that rechtsstaatlich principles of justice, individual liberty, and equality before the law could only be realized in a democracy. While the relative prerogatives of the state vis-à-vis the individual may have changed over the years, however, most legal historians accept that there was a consistent respect for equality before the law, the rights of the individual, and the impartial administration of justice running from Freiherr vom Stein's Prussia, through the Kaiserreich, and into the Weimar Republic. At its most abstract, this tradition affirmed that neither the government nor the administration might infringe upon the liberty of individual citizens unless so prescribed by law and deemed constitutional by independent judicial oversight. No matter how powerful the state might become, its monopoly on violence was ostensibly restrained by an overwhelming respect for law (Gesetz) and justice (Recht). In this traditional narrative, Germany's long tradition of Rechtsstaatlichkeit was only interrupted by the Third Reich, in which individual rights were subordinated to the interests of the collective and where citizens enjoyed varied legal status based on "subjective" attributes such as race and political affiliation.

According to Christian Hilger, however, legal historians have failed to differentiate sufficiently among the varied legal-philosophical approaches extant in the Third Reich. Even National Socialist legal theorists had trouble escaping the long shadow of the Rechtsstaat.

Hat tip: H-Law