Lange on Nazi Lawyers and the Invasion of Poland

Felix Lange, University of Cologne, has published, open access, Claiming Legality: German Lawyers under the Swastika and the Aggression against Poland, in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 85:1 (2025) 17-42:

The article studies how German lawyers under the swastika justified the German aggression against Poland in 1939 and questioned the support of the United States for Poland and its Allies. It distinguishes three lines of argument: First, they claimed that the Kellogg-Briand Pact was devoid of normative content and thus could not bind the German Reich. This argument was coupled with a political critique of the League of Nations Covenant and the Kellogg-Briand Pact as instruments for maintaining the territorial status quo. Second, they put forward that the German Reich was acting in self-defence and that it was Poland, France, and Great Britain who had violated the Covenant and the Pact. Third, they rejected efforts to reconceptualise the existing rules of neutrality in light of the Covenant and the Pact. Reliance on a more traditional understanding of neutrality was intended to raise legal obstacles to siding with Poland, France, and Great Britain for third states such as the United States.

--Dan Ernst.  H/t ESCLH.

Fountaine on Lawyers and the Rule of Law in the Third Reich

Cynthia Fountaine, University of North Texas, has posted Complicity in the Perversion of Justice: The Role of Lawyers in Eroding the Rule of Law in the Third Reich, in St. Mary’s Journal on Legal Malpractice and Ethics:

A fundamental tenet of the legal profession is that lawyers and judges are uniquely responsible—individually and collectively—for protecting the Rule of Law. This Article considers the failings of the legal profession in living up to that responsibility during Germany’s Third Reich. The incremental steps used by the Nazis to gain control of the German legal system—beginning as early as 1920 when the Nazi Party adopted a party platform that included a plan for a new legal system—turned the legal system on its head and destroyed the Rule of Law. By failing to uphold the integrity and independence of the profession, lawyers and judges permitted and ultimately collaborated in the subversion of the basic lawyer–client relationship, the abrogation of the lawyer’s role as advocate, and the elimination of judicial independence. As a result, while there was an elaborate facade of laws, the fundamental features of the Rule of Law no longer existed and in their place had grown an arbitrary and chaotic system leaving people without any protection from a violent, totalitarian government.

--Dan Ernst

Schmidt on Legal Realism, Free Law, and Hermann Kantorowicz

Katharina Isabel Schmidt’s article How Hermann Kantorowicz Changed His Mind About America and Its Law, 1927–34, is now available open access from  Law and History Review.  Highly recommended!

Hermann Kantorowicz crossed the Atlantic twice: to take up a visiting professorship at Columbia Law School in the summer of 1927, and to find refuge at New York's University in Exile in 1933/1934. Between his first and second stay, the German-Jewish émigré changed his mind about America and its law fundamentally. While he had—patronizingly—praised his US colleagues for “catch[ing] up… intellectually” in 1927, he accused them of “destroy[ing] the Law itself” in 1934. Reconstructing Kantorowicz's change of heart, my article uncovers just how open the transatlantic 1930s still were in jurisprudential matters. As leader of the so-called “free law” movement, Kantorowicz had sparked a turn to “life” in German legal science in the years before World War I. Throughout the 1920s, he had then watched contentedly, as American “realist” scholars drew on free law ideas for their own critical projects. By 1934, however, Kantorowicz could not help but notice parallels between New Deal and Nazi law. To his mind, both Roosevelt's and Hitler's jurists had started turning his moderate free law ideas into a radical—and dangerous—legal nihilism: in designating law as life's only source, they shunned scientific legal methods. In light of these concerns, my article excavates life-law's delicate suspension between peril and potential. My sources reveal a striking, triangular relationship between German free law, American legal realism, and Nazi life-jurisprudence.

–Dan Ernst

Luban on Two Third Reich Lawyers

David Luban, Georgetown University Law Center, has posted Complicity and Lesser Evils: A Tale of Two Lawyers, which is to appear in the Georgetown Journal of Legal Ethics with comments by Leora Bilsky and Natalie Davidson, Kathleen Clark, Erica Newland, and Shannon Prince:

Government lawyers and other public officials sometimes face an excruciating moral dilemma: to stay on the job or to quit, when the government is one they find morally abhorrent. Staying may make them complicit in evil policies; it also runs the danger of inuring them to wrongdoing, just as their presence on the job helps inure others. At the same time, staying may be their only opportunity to mitigate those policies – to make evils into lesser evils – and to uphold the rule of law when it is under assault. This Article explores that dilemma in a stark form: through the moral biographies of two lawyers in the Third Reich, both of whom stayed on the job, and both of whom can lay claim to mitigating evil. One, Helmuth James von Moltke, was an anti-Nazi, and a martyr of the resistance; the other, Bernhard Lösener, was a Nazi by conviction who nevertheless claimed to have secretly fought against the persecution of Jews from the improbable post of legal adviser on Jewish matters. The Article critically examines their careers and self-justifications. It frames its analysis through two philosophical arguments: Hannah Arendt’s stern injunction that staying on the job is self-deception or worse, because like it or not, obedience is support; and a contemporary analysis of moral complicity by Chiara Lepora and Robert Goodin. The chief question, with resonance today as well as historically, is whether Arendt is right – and, if not, under what conditions lesser-evilism can succeed.

 --Dan Ernst