Friday, January 22, 2021

A Digression on the History of the Nazis, Legal Fig Leaves, and Lessons for the United States

by Neil H. Buchanan

In a Verdict column last week, I dissected the utter lawlessness of Republican Senator Josh Hawley's attack on the 2020 election results.  Along the way, I returned to a concept that I have called "legalistic lawlessness," which is the socially presentable alternative to openly thuggish autocracy.  In that dressed-up version, the raw power of the autocratic regime is given legal cover, which has the effect of giving people of good conscience -- especially lawyers and judges -- a way to avoid confronting their own complicity in the brutal, antidemocratic actions of the tyrant: "I'm just following the law!"

Drawing from one of the two or three most notorious historical examples of a murderous national government taking refuge behind the cover of its own unjust laws, I wrote:
"[I]t feels a lot better to judges and legislators to say that what they are doing is legitimate. The Nazis passed laws that made the Holocaust not merely legal but mandatory. In the United States, in addition to the fully legal institution of slavery, we have had legal regimes that justified or ignored lynchings, literacy tests, forced sterilizations, and more."
As good luck would have it, one of Verdict's frequent readers is a retired German jurist who has contacted me in the past about my writings.  Born in the mid-1930's, this gentleman is unfailingly pleasant and deeply engaged with ideas.  In response to my comment about the Nazi regime, he contacted me with a friendly correction, which I found so fascinating that I want to reproduce it here:
"Agreeing in general with what you wrote, I should like to draw your attention to one error: you write that 'The Nazis passed laws that made the Holocaust not merely legal but mandatory.' I think this is not correct. There were no such laws. There are no legal documents at all which would authorize, let alone mandate that action. On the contrary, the whole matter was veiled as best as they could. It was strictly extralegal even on the basis of legislative theory and practice of the time. The general laws concerning murder, manslaughter etc. remained fully in force but simply were disregarded, and the competent authorities, for whatever reason (lack of knowledge, fear, tacit acquiescence?) did not act as they should have done (with at least one exception perhaps with regard to the killing of mentally ill people when one public prosecutor tried to institute proceedings, without success of course). But wouldn’t you think this makes the parallel to the behavior of some people in public office in the US even closer?"
This both surprised and intrigued me.  I certainly wanted to correct my Verdict column, but I was not quite sure what the corrected text should say.  Moreover, I could not pass up the possibility of learning about this terrible history from someone who knows it so well.  (Given his age, my correspondent was not yet even a teenager at the end of the war; but his distinguished career in German public service surely makes him one of the best sources of detailed knowledge with whom I could hope to engage.)  I thus responded with a request for more information (quoting at one point from "Letter from a Birmingham Jail"):
"Thank you for your feedback on my January 14 column.  I am sure that you are right about the awful history of the Nazi regime, which I have not studied in any depth.  My comment was based on Dr. Martin Luther King, Jr.'s famous observation: 'We should never forget that everything Adolph Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." It was "illegal" to aid and comfort a Jew in Hitler's Germany.'  I admit that I am using a secondary source, but at least it's a highly credible one.

"That said, if you say that my description was erroneous, then I certainly believe you.  ...

"I do wonder, however, how it could be possible to have run the entire Nazi governmental apparatus that carried out the Holocaust without explicit laws mandating it.  One of the many horrors in learning about the Nazi regime is discovering that it was such a brutally efficient administrative machine, with careful records of every murdered prisoner and virtually everything that was done.  The soldiers and bureaucrats who carried out the orders must surely have been paid, which means that the government must have allocated money to pay their salaries, as well as to provide materials to the concentration camps and so on.  Was there an official story that those camps, and the people running them, were doing something other than what they were doing?

"I am genuinely curious about this.  My assumption has always been that nothing this massive and monstrous could have been done without being officially sanctioned, and it certainly seems that Hitler did nothing to hide what he was doing or his evil intentions.  If they were pretending not to do what they were doing, that would be fascinating to know."
 Within a day, I received the following response:
"Your questions are not so easy to answer. There is no absolute yes or no, legal or illegal. Of course, quite a number of things the NS did had a legal basis which, partly at least, they themselves provided. Adolf Hitler was appointed chancellor by the German President in accordance with the constitution. The so-called Enabling Act (Erm├Ąchtigungsgesetz) of 1933, which authorized the government to enact laws without involving parliament, was enacted by the parliament (Reichstag) with a majority sufficient to alter the constitution. The 'purging' of the civil service from persons the NS didn't like also had a legal basis. Not so the killing of mentally ill persons and, above all, the holocaust, the killing of Jews. These measures had no basis in law. Even the NS didn't dare to go public with them. They tried to keep them secret. Even internal papers were worded in a way that showed their true meaning only if you knew already what was going on in reality. To talk about what was going on in the concentration camps was extremely dangerous. And apart from that, the holocaust was committed in the course of the later years of the war. It was largely carried through by SS personnel. Of course, they were paid, like the soldiers involved. But the relevant papers didn't show what they were paid for in particular, of course. The legal environment was discussed in the Frankfurt Auschwitz Trial of 1963 ff. You find literature about that in Wikipedia under that heading. If you care to read German you find a legal discussion in Balzer and Renz, Das Urteil im Auschwitzprozess (The judgment in the A.). I don't know whether it has been translated into English.

"I hope these hints are helpful for you."
Substance aside, I must say that this is one of those instances where I marvel at how great it is to have my job, which gives me the opportunity to engage deeply with scholars on issues of great import.  On the substance, it is of course possible that Dr. King was at least in part mistaken, but I think that the error was more likely mine in stretching his words to imagine an even more open and brazen legal regime than actually existed.  It is, in any case, surprising and somewhat heartening to know that even the Nationalist Socialists could not freely admit what they were doing.

In addition to sharing these historical and legal insights from my correspondent, I decided to write this column also so that I could engage with the last sentence of his first email: "But wouldn’t you think this makes the parallel to the behavior of some people in public office in the US even closer?"  That is quite right, and it is worth exploring.

Here is an explicit statement of my incorrect (and never quite articulated) earlier assumption:
"The Nazis put everything into law to make their crimes perfectly legal, and that is what the present-day Republicans are likely to do whenever they are next able to exercise power."
 The corrected version goes like this:
"Even the Nazis did not dare to let the world -- or their own citizens, for that matter -- know what they were doing.  Yet they did it all the same, crafting a combination of legal and illegal maneuvers to achieve their ends.  And present-day Republicans ..."
How do I finish that sentence?

In my Verdict and Dorf on Law columns yesterday, I predicted that the Republicans will soon succeed in genuinely rigging the electoral system to turn the United States effectively into a one-party autocracy.  If they were so inclined, they could then do what I incorrectly assumed the Nazis had done, which is simply to make their lawless power grab open and fully legal.  But maybe Republicans, too, will have reason to pretend not to be doing what they are doing.  Almost certainly, they will not pass laws banning elections entirely, nor will they say out loud that they will change as many electoral votes as necessary to win future presidential elections.

As much as I am shocked by the radicalized 21st-century version of the Republican Party, I have no problem saying that the substance of their preferred policies -- as gratuitously cruel and based on deep-seated bigotry as they are -- is obviously not quantitatively or qualitatively "the same as the Nazis."  But the point that my German pen-pal makes is that the people who were willing to commit mass murder and genocide felt constrained to pretend otherwise, notwithstanding their having achieved what appeared to be absolute power.  Republicans' anti-democratic actions will continue to be accompanied by denials, as well as a combination of both legal and still-illegal maneuvers.

It surely is a good thing that humans tend to condemn and reject autocracy when it is exposed to sunlight.  That keeps would-be dictators from being honest about what they are doing, and perhaps as importantly, it keeps them from passing a full range of explicit laws purporting to legitimize their illegitimate aims.
The Georgia, Michigan, and Pennsylvania public officials who stood up to Donald Trump's bullying in 2020 could point to the laws that existed and then follow those laws, defying Trump's demands.  Some of those laws will change between now and the next elections, but there will still be reasons for Republicans not to make the new laws completely devoid of substance, which will provide some remaining legal basis for challenging Trump-like autocratic power grabs.  That might or might not be enough to stop the creation of a one-party state, but it is not nothing.


Michael C. Dorf said...

Your interlocutor's comments are consistent with what I've read elsewhere. On a point near the end of the piece, it's not entirely clear to me that fig leaves are helpful, harmful, or neither. The late great Lou Henkin used to say that he was grateful for "human rights hypocrisy," by which he meant the signing onto human rights treaties by non-rights-respecting regimes. He thought that the lip service to human rights could then be used to gradually move those regimes towards real compliance.

I'm not sure that's right. In a 2002 Yale Law Journal article, Oona Hathaway reported findings suggesting the opposite--that rights-violating regimes try to get the PR benefit of lip service without improving their practices. Hathaway, Oona A., Do Human Rights Treaties Make a Difference?. Yale Law Journal, Vol. 111, 2002, Boston Univ. School of Law Working Paper No. 02-03, Available at SSRN:

Work by David Law and Mila Versteeg on sham constitutions points roughly towards a similar conclusion--that lip service can remain simply lip service. Law, David S. and Versteeg, Mila, Sham Constitutions (July 1, 2013). 101 California Law Review 863 (2013), Washington University in St. Louis Legal Studies Research Paper No. 12-09-03, Virginia Public Law and Legal Theory Research Paper No. 2012-55, Available at SSRN: or

Steven Lubet said...

In 1935, the German government enacted the two Nuremberg Race Laws, one for the "Protection of German Blood and German Honor," and another defining "Reich Citizenship," which stripped Jews of citizenship and legal protection. These statutes made it legal to isolate and persecute Jews, to exclude them from employment, to confiscate Jewish property, and to arrest Jews on pretenses, all of which ultimately made the Holocaust possible. The extreme and deadly persecution of Jews, and later of Romani and other minorities, was definitely legal under the Third Reich.

Most of the death camps were located in Poland and other occupied countries, with the mass murders conducted under military authority. The Einsatzgruppen who conducted the first wave of killing operations were operating under military orders.

The Allies' post-war tribunals were held in Nuremberg, which was symbolically meaningful. One of the major proceedings was the Judges' Trial, in which leading German judges were found guilty of committing war crimes and crimes against humanity, as well as using the legal process to facilitate mass murder, torture, and theft of private property. The Judges' Trial was the basis for the television drama and subsequent film, "Judgement at Nuremberg."

If the Holocaust was not specifically authorized by German law, that was only because other laws had already made it possible. Was the Holocaust actually "veiled"? There is considerable research, by Daniel Goldhagen and others, that it was at best an open secret.

Neil H. Buchanan said...

My thanks to Steven Lubet for the additional historical information.

I tend to agree with the conclusions of the research that Michael C. Dorf's comment references. At worst, this means that what I wrote yesterday is still fully operative. At best, things might be slightly less bad than that.

Michael A Livingston said...

I can’t claim to be an expert on Germany—my own work is on Fascist Law in Italy, a rather different animal—but let me offer a thought:

I think most people who have studied Germany are skeptical about the parallel of anyone today to the Nazis post-1933. I think most of them would say that, if there was a parallel, it would be to the Kaiser before 1918, and particularly to the First World War-era in which Hindenburg and Ludendorff, especially the latter, ran a sort of quasi-legal dictatorship in the Kaiser’s name. Some have used the term “pre-fascism” to describe this.

The problem is, how would you prevent this “pre-fascism” from developing into actual fascism? Unfortunately the answer being proposed by today’s progressives is uncomfortably similar to that used by the left in Germany after 1918. This appears to involve i. A somewhat half-hearted effort to delegitimize the extreme right by criminal prosecution, rhetorical condemnation, etc., and ii. A high degree of division among the progressives (socialist and communists then, leftist and centrist democrats now) over the right course to follow. Neither of these proved particularly successful.

What ultimately defeated fascism—aside from the American, British, and Russian armies—was a stable democratic state that was able to deliver a better life than the fascists could. If Biden and the Democrats can do this, I think Trumpism will be a distant memory. If they continue on what appears to be their present direction—a great deal of overheated rhetoric and an emphasis on political revenge rather than genuine accomplishment—I am much less confident.

One further point: the Nazis took power based in part on the emergency provisions of the Weimar Constitution. The efforts to pursue “insurrectionists” following the Capitol events, and the related efforts to restrict free speech on the same basis,, may easily be used by a future Republican President in a similar way. This is another disturbing parallel to the previous era.

Asher Steinberg said...

Just two non-substantive comments. On this:

"On the substance, it is of course possible that Dr. King was at least in part mistaken, but I think that the error was more likely mine in stretching his words to imagine an even more open and brazen legal regime than actually existed"

No, he was unambiguously mistaken in part, or actually wholly mistaken. He said that everything Hitler did in Germany, specifically his treatment of Jewish people, was legal, but that is false; the Holocaust wasn't legal under Nazi law. Your mistake is relying on his remarks at all, see below, not misreading them.

On this:

"I admit that I am using a secondary source, but at least it's a highly credible one."

While King was a great man, I don't think you can even call his remarks from jail on Nazi law any kind of secondary source on Nazi law, much less a highly credible source. King wasn't an historian of Nazi Germany, such historiography of Nazi Germany he would have had access to at the time wasn't very developed, and his comments were obviously motivated and made in service of a point about law and morality. I am surprised you would even think about relying on them on this subject.

Patrick S. O'Donnell said...

Re: “The late great Lou Henkin used to say that he was grateful for ‘human rights hypocrisy,’ by which he meant the signing onto human rights treaties by non-rights-respecting regimes. He thought that the lip service to human rights could then be used to gradually move those regimes towards real compliance.”

There appears to be at least one instance of this, as discussed in Daniel C. Thomas’s The Helsinki Effect: International Norms, Human Rights, and the Demise of Communism (Princeton University Press, 2001). See too this post on Charter 77 in Czechoslovakia: