Blurring the Line Between Lawful and Unlawful Conduct (Book Notes: Hitler's Justice)

The difference between lawful and unlawful conduct is crucial for any society which is built upon laws. The laws are what help ensure the equality of everyone because the laws stand above everyone's passions or preferences. Everyone is expected to follow the same laws and to be held to the same penalties for failing to do so. When the laws become irrelevant, then so do justice and morality.

In Hitler's Justice: The Courts of the Third Reich, Ingo Muller writes:

Whereas since the time of the Enlightenment efforts had been directed toward making the dividing line between lawful and unlawful acts as clear as possible, professors of criminal law in the Third Reich openly acknowledged it as their chief task to blur this line to the point of invisibility.

The primary aim of criminal law was "to protect the community of the Volk from criminals," and this protective function supplanted what had been the foremost principle of the constitutional state: "Today everyone will recognize that the maxim 'No crime without punishment' takes priority over the maxim 'No punishment without law' as the higher and stronger legal truth" (Carl Schmitt).

For the Nazis, the law often got in the way of accomplishing their goals. Laws required them to behave in a consistent, equitable manner but this was contrary to their desires. Every authority figure who wants to break the law when the law stands in their way has some excuse for doing so. For the Nazis, their excuse was the "needs" of the Volk — there were crimes being committed against the Volk which were not technically against the written law, but they were definitely against eternal, moral "laws" and this meant they needed to be punished.

As Carl Schmitt said, it was more important to ensure that no crimes go unpunished than to ensure that there was no punishment without the backing of laws. This meant that "crimes" included those things outside the written laws. Usually when people think that there are crimes needing punishment but aren't in the law books, they try to create new laws — so why not do that here? Because laws are limiting. Laws set standards and expectations which must be adhered to over the long term.

True authoritarians cannot accept this because it restricts their freedom of action. True authoritarians believe that authority rests with them personally, not with the laws authorized by citizens or their representatives. This tied in with Carl Schmitt's writings about the need for a Führer, a strong leader who could embody the will of the entire nation and make decisions on behalf of the Volk. When leaders believe that they have the inherent authority to basically do whatever they want and ignore the written laws, then they have become a clear and present danger to the survival of the nation.

 

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