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Schinnerer Erich - German law and legislation


Author : Schinnerer Erich
Title : German law and legislation
Year : 1938

Link download : Schinnerer_Erich_-_German_law_and_legislation.zip

When the National Socialist Government came into office, on January 30, 1933, it was confronted with widespread chaos and confusion in the social, economic and political life of the nation. A similar state of affairs existed in the legal sphere and in the administration of justice. The situation was too critical to allow of any time being lost in dealing with it. The first step taken was to put an end to the manner in which Parliament had hitherto functioned. Even in imperial times, before the War, this institution had proved itself inefficient. The republican parliament however, which followed the War, turned out not only inefficient but positively detrimental to the interests of the country. This republican Reichstag had been organized according to the principles laid down in the Weimar Constitution of 1919. But that Constitution had been drawn up by a Conference of theoretical jurists and politicians who were quite out of touch with the practical needs of the nation. It was therefore out of harmony with German historical tradition, with German mentality and the ethical constitution of the German nation. Moreover, the constitutional laws enacted at Weimar were formulated under the aegis of the so-called Peace Treaties and as such they naturally failed to arouse popular opinion in favour of the new Constitution. In the final crisis of 1932/33 the legislative body operating under this Constitution, that is to say, the Reichstag, absolutely failed to function. Parliamentary legislation was increasingly superseded by emergency decrees issued by the President of the Reich. In the year 1931 35 laws were passed and 42 emergency decrees were issued. In 1932 only 5 laws were passed, but 60 decrees were issued. This system of emergency decrees could not furnish a permanent basis for the government of the country. Just as in the case of the State, the local administrations were also unable to cope with the difficulties that confronted them. Especially the municipalities were threatened with disaster, owing to the economic conditions which resulted directly from the political chaos. In addition to all this, the unfortunate dualism between the Reich and the governments of the federative states* led to the development of an administrative apparatus which was becoming more and more disjointed. The administration of justice failed to check the increasing volume of crimes and misdemeanours. In spite of the growing leniency towards the criminal, which was due to the prevailing laxity of moral ideas, the number of persons accused of larceny in Berlin rose from 32,452 in 1926 to 52,231 in 1932. The number accused of burglary rose from 18,673 to 36,729 within the same period. And the number of cases of robbery with murder from 2 to 7. The damage resulting from theft amounted to 16.5 million marks in 1926. In 1932 it amounted to 32 millions. The increase in acquittals, which offended the popular sense of justice, was an outstanding proof that the existing criminal code was inadequate to deal effectively with new developments in general delinquency. The laws in regard to labour, which were based on the idea of a permanent conflict of interests between employers and employed, were unable to maintain industrial peace, which is so necessary to national existence. The increase in unemployment heightened the existing tension to a point where it was becoming intolerable. The sources of the nation’s food supplies were in a precarious condition. The farmers were heavily in debt and, moreover, their farms were difficult to work profitably owing to the dividing up of the land according to the hereditary system. Furthermore, a large class of aliens, namely Jews, had migrated to Germany from the East, especially during the War, and had gained a decisive influence in politics, law, the learned professions, education and in control of the cultural organizations. Although the Jews represented only one percent of the whole population, they had secured a footing in nearly all the key positions in public life. The political transformation which took place in 1933 brought with it the introduction of many practical reforms in the realm of law. The threatening collapse proved clearly that the existing laws were inadequate to the vital needs of the nation and that a change in juridical practice, or the passing of individual measures or supplementary laws, would have been insufficient to eliminate such profound defects. The situation could be effectively remedied only by creating an entirely new order, based on the new political principles which the National Revolution had introduced into national life. But a new and permanent system could not be created at once. Therefore the Reich Government did not hurriedly draw up new codes; but for the time being it had to content itself with introducing supplementary laws which would clear the way for further developments and prepare the ground for a future systematic code. The laws to which the legislator would give final form would have to arise from the life of the nation itself. The Academy of German Law was set up as a public corporation and within the framework of this organization a number of committees are doing the preliminary juristic work which is necessary before the new codes can be finally shaped. At the present time the Academy is principally engaged on that section of the code which will establish and guarantee the position of the family as an integrant unit in the national community. The whole body of new legislation is to be inspired by the main ideas which dominate the German mind today: namely, the idea of Leadership, the idea of the People, and the idea of the Community of the People. In order to understand what is the basis of the new legislation one must have a clear grasp of what the Germans mean today when they speak of the Community of the People, the Volksgemeinschaft. This idea of the people is based on the fact that their members have a homogenous national character. When great multitudes act together, conscious of their historical unity and determined to pursue the fulfillment of one mission as a national unit, then they are a political unit also. Of this political unit those who are its leaders form an integrant part. All the members form one corporation which is called the Volksgemeinschaft, literally, Folk Community. Now the laws that govern the Folk Community emerge from the inner spiritual, political and material necessities which have developed through a common historical experience. Therefore in the National Socialist sense law is not the expression of the State’s authority, to which the people must submit as a passive and inert mass. In harmony with the concept of the Folk Community, law is part of the life of the people. The legislator draws out and gives organic expression to the sense of what is just and unjust, the feeling for what is good and what is evil, which is inherent in the soul of the people. Therefore the starting point of the National Socialist conception of law is the people, not the State. The task of the State is to see that the law is carried out. The legal system which was introduced into Germany towards the close of the middle ages was based on the principles of Roman jurisprudence. These principles were revived and reformulated in the nineteenth century. They were entirely foreign to German traditions and they proved a perpetual hindrance to the development of a uniform system of German law. The German people have not a traditional legal system such as that through which the Anglo-Saxon people have found expression for their inner sense of justice and which forms the foundation of all their legal ideas. In many spheres of German life the introduction of a system foreign to the nature of the people separated the operation of the law from the naturally developing life of the people. The legislative efforts made by the Second Empire ever since 1871 failed to close the breach between the legal instincts of the people, developed out of their traditions, and the ideas of learned jurists. The great work of codification carried out under the Second Empire was done by men who had been trained in the ideas of Roman law. It is a well known fact that this code was soon shown to need reform; and yet all attempts to improve it have failed. One special factor that played a large part in bringing about an estrangement between the laws and the natural legal instincts of the people was the dominant position which the Jews acquired in the legal profession. In Berlin alone 1835 or 54% of the lawyers practising in 1932 were of Jewish extraction. In interpreting and applying the German law they were guided by the legal ideas of their own race. The difference between the Jewish and German ideas of law is indicated by the fact that up to the nineteenth century the Jews received special treatment in the courts in view of their different notion of what was legally right and wrong. Special forms of oath were drawn up for them and they could not be punished for receiving stolen goods. The Law of September 15, 1935 put a stop to the further predominance of the Jews; but there are still many Jewish lawyers in Berlin. Out of the total of number of lawyers 943 or 32.6% were Jews in 1937. In the National Socialist State the Führer is the lawgiver; but he himself is an integral part of the Folk Community. And so the National Socialist law follows a different principle from that on which the status of a dictatorship is legally based. In order to maintain the rule of the dictator external compulsion is necessary; but leadership depends on the unconditional authority of conviction. Where there is compulsion the individual feels that he has no responsibility to the community or to the future, but it is just on this feeling of individual responsibility that the National Socialist law is based. The highest honour and the highest ideal consist in the service of the community. Honour and internal as well as external freedom are essential to the existence of the community. Therefore, as the ideal of the Folk Community forms the basic principle of National Socialism, a legal form must be found which expresses that principle and gives each German his place as a constituent part of the national community. The individual does not stand isolated over against the community. A community must be made up of members. These members are not the mere objects of its rule or social institutions. Each represents the community in himself and has his field of activity within it. The total activity of the community depends on the strength and achievements of the single members. Therefore the member is not in the position of a subject who has no rights on his own account, as is the case in the absolutist State. The rights of the community are his rights and on him depend its honour and freedom. But he occupies this position for the sake of the community and not for the sake of the individual. It implies political duties as well as political rights. The National Socialist Revolution did not merely mean the external collapse of the existing State. It implied also a change in the fundamental ideas of the State as such and its laws. Therefore we should be mistaken if we regarded it merely as a revolt against the evils, which existed in 1933. The National Socialist law rather represents something essentially new, which is capable of infusing a new life into all traditional forms. Führer and people, Folk Community and German citizen, constitute the essential elements of the National Socialist conception of law. And the purpose of the new laws is to give form to that conception. ...

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