I'm from Germany. I could tell you something about blindly following the "rule of law". If you throw morality out the window the law can become a very ugly instrument.
Yes, Rechtsstaatlichkeit only means that the state and its organs have to follow the law themselves. It doesn't say anything about the moral quality of the laws.
The Nazi state had to follow its own laws. They just had such laws that enabled the total lunacy that the 3rd Reich was.
All I'm saying is: If you decouple laws from morality you get a really bad time.
> The Nazi state had to follow its own laws. They just had such laws that enabled the total lunacy that the 3rd Reich was.
This is false. Even if you take the Nazi propaganda that their laws were themselves lawful (which they were not, beginning with the clearly unlawful capture of power) at face value, the Nazi regime did not adhere to its own laws and regulations. While in some cases the Nazi regime did codify a basis in law for their atrocities (i.e. excluding and expropriating jews), much of the Nazi terror both in a civil and military context would have been explicitly illegal under the law at the time.
This includes the November Progroms of 1938 (https://de.wikipedia.org/wiki/Novemberpogrome_1938), large parts of the Nazi's approach to warfare, as well as the entire Holocaust (the murder of more than 6 million jews and other "undesirables"), for which the Nazis did not bother to create any legal justification.
While the Nazi regime was deeply bureaucratic (in that it documented its policies, orders and their results in high detail) this is not the same as "following the law". Most of the Nazi's atrocities evolved not through a process of lawmaking, but from their racist ideology and were given legitimacy through the highly personalized nature of the regime: Hitler was explicitly above the law, as were his orders, not matter if expressed through him personally or in his name by his followers.
Not sure why this comment got voted down; it's absolutely true.
The rule of law means that nobody is above the law, not even the Fuehrer or president. Clearly this is not the case in many countries, but it is in some, and it should be.
> The rule of law means that nobody is above the law
If the stats from the Innocence Project are correct[1,2], then it would also mean that nobody is above being a victim of the rule of law, either.
The rule of law is not infallible - and any sort of blind "rule of law" worship is akin to the worship for a dictator; its just merely dressed in different clothing.
This has nothing to do with the concept of "rule of law". This is simply about how the law is applied and appealed. If anything, the rule of law should protect against these miscarriages of justice, because the law should be applied equally to everybody, and therefore the poor should have the same access to the processes of appeal as the rich and powerful.
Very insightful answer indeed. I found this part particularly interesting:
> One of the most interesting theories however is Ernst Fraenkels "The Dual State". Fraenkel asserts that Nazi Germany is a dual state where the normative state (the state based on the rule of law) coexists with the "prerogative state" (the state not bound by law). While some swaths of society such as the relation to private property, the civil law etc. continue to function on the basis of codified norms (think the building code, neighbor disputes, companies suing each other, "ordinary" criminal law, stuff in relation to ownership of private property), some parts of the state were unbound by the Nazis such as the prosecution of political opponents, the camp system etc. Fraenkel further asserts that once the prerogative state is established, it has a very strong tendency to expand into the territory of the normative state and that state actions once unbound will cause enormous havoc in a certain sense.
This theory kind of generalizes my statements upthread, expanding them to cover authoritarian states. Any kind of society we could label as authoritarian state is by definition already way too large to be fully micromanaged by the people at the top. Such a state has to retain a quite substantial "normative state", as Fraenkels calls it - and this state is what my arguments about intersubjective beliefs apply to. When people stop having faith in the "normative state" - whether because of "prerogative state" overreach or other forces - the whole thing collapses, and not even the strongest tyrant can hold it together.
The issue is that we're used to think in terms of Legislative, Judiciary and Executive. That's what most modern democracies are based on.
If you look at this the old way, Hitler wasn't above the law, he was the law, because there was no real split of powers.
Your comment, though, is very interesting because it defies the stupid idea that back then people respected laws, while today....
Somehow this got idolized, which is why (young!) people tend to feel nostalgic about such times. In reality, there was a lot of corruption, Hitler himself evaded taxes, used Party money to fund his own Mercedes etc.... yeah like today!!! :)
Edit: somehow this propaganda of people of law lasted until today. In reality, the guy was a fraud that collected millions over the years. While everyone else had to live in fear of deportations or worse. I don't understand why journalists don't focus on things like this to dismantle idiotic extreme parties.
> Even if you take the Nazi propaganda that their laws were themselves lawful (which they were not, beginning with the clearly unlawful capture of power)
What definition of the laws lawfulness are you using? Capturing the power - it is what makes law lawful, otherwise any law is unlawful.
This is a very crude and on every level incorrect understanding on how laws work, both in a formalistic, as well as a societal way.
When the Nazis captured power, they did so by excluding the legitimate (and lawful) parliamentary opposition from key votes in parliament by (unlawfully) imprisoning opposition parliamentarians. In a strictly legal sense, this made their entire regime illegitimate from the outset.
What you fail to grasp is that a regime like Hitler's is constitutionally and ideologically incapable of being "lawful", i.e. having any set of laws and norms that would apply consistently, even if these laws were shaped by their own ideology. The whole point of Hitler's leadership was that laws were irrelevant and completely subservient to facilitating his twisted idea of Arian racial domination, with even the "German" society being completely dominated by the "Ubermenschen" that he hoped to create out of the murderous struggle of war.
Even the ancient Romans and Greeks would have recognized the Nazi regime as "unlawful". While the roman empire was a dictatorial regime, it had a mostly consistent set of laws and norms that even the Cesar had to abide by (though these laws gave him tremendous power in comparison to modern democratic executives). "Personalized" regimes in contrast are not build on laws, but revolve around the whims and/or ideology "the leader". You can see some aspects of this in Trump's approach to governance, though the US is obviously still a long way away from the extremes that the Third Reich went to.
You are absolutely right saying that rule of law is not sufficient condition for the existence of modern society. It was a bit confusing still, because nobody claimed the opposite: the comment you replied to was saying rule of law is a necessity.
You may have been saying this but the parent comment that spurred the discussion was making the explicit assertion that "the rule of law is the only thing holding together [...] everyone's countries, and civilized society in general".
Saying that law is 'the only thing' necessary for the existence of modern society effectively means it is also a sufficient condition. So yes, someone did claim the opposite.
I doubt that modern society does fulfill the sufficiency criteria [1], so „the only thing“ can be right, but also it is not the claim that it is enough for survival.
[1] USA regressing to a globally disrespected oligarchy under Trump is a good example.
Not in my wildest dreams I imagined Brazil would give the good example for prosecuting a former president who attempted a coup and that the US would fail to do the same.
Ah, but legal positivism is the norm in liberal societies, and not by accident. This follows directly from the demands of liberalism which privatizes discussion of the objective real and relegates it to individual sentiment. One of the paradoxes of liberalism is that the maximization of individual liberty necessarily demotes authority and elevates power, leading to tyranny.
So any appeals to the contrary are rooted in appeals to beliefs held in parallel with the liberal doctrines of the state. When Protestants ruled the US, that means some residual (often warped) Christian sensibility, because they were able to attain that consensus. But with greater competition today, that old consensus is no longer possible. Liberalism ensures that.
The Nazis did anything but blindly followed the rule of law. They did the opposite - they used law as a cudgel to beat their enemies with, while somehow magically, not being held responsible for any of their own violations of it. It's how they rose to power, and it's how they liquidated all of their internal opposition in the pre-war years.
We are seeing this play out again. The brownshirts have all been pardoned (with a clear message to the ones who will be involved in the next act - that as long as they break the law in support of the regime, they'll get bailed out), while everyone else is getting in line to kowtow and kiss the ring - because if they don't, they might be targeted.
It's actual insanity that people are looking at this and saying it is fine.
Then again, the whole country has gone insane, it looks at a video of the richest main in the world giving a fascist salute, and insist that he's just giving a confused wave, or that it's the same thing as a still of some other person with an outstretched arm.
I thought everybody knew the first thing the Nazis did was eroding the rule of law, with the help of Hans Frank, before even taking power.
The fact that everybody is equal in front of justice and that justice should be independent, two of the basics tenet of the rule of law, were hated by the Nazis and called 'jewish law', and were targeted. Lawyers and judges were increasingly close to the Nazi party. The same crime by a party member didn't had the same consequence.
I think the Nazis pamphlet said that 'roman law follow the materialistic world order, and should be replaced by German law'. Where materialistic was a dogwhistle for Marxism, and world order for Judaism.
What did help Nazis was that older judges and lawyers were often aristocrats who didn't really love the republic, and new one were petty bourgeoisie where Nazism had a lot of supporters. They helped put a staunch conservative (who later joined the Nazis) at the head of the German supreme court before 1933. The man blocked socdems appointments, and changed how the German law was interpreted (basically pushing intent of the law vs letter of the law, where intent weirdly always aligned with Nazi ideology).
Then, once they had power, the first thing they did after the conservative Hindenburg (may he be remembered as Hitler first collaborator) declared a 'state of emergency was to suspend judiciary oversight over arrest and imprisonment.
I learned so much from reading this, thank you. Is there more of this same style dense history writing somewhere? (Of course there are caveats and narratives etc., I hope people understand that...)
I bought it as an audiobook and listened for about 30 minutes already. It's been fascinating. It is quite long. But I have definitely learned a lot. Thank you!
I guess the psychological aspect of clamoring for a strong leader would need more deep diving. Serhii Plokhy and Martti J Kari have talked about this in regards to Russia, those are available as Lex Fridman interview and youtube lecture: a strongman, even with downsides, is still preferrable to a weak leadership that is unable to defend against external threats or internal chaos.
The reader's pronounciation of German is quite incomprehensible though (book is in English). Völkischer Beobachter is not easy.
> a strongman, even with downsides, is still preferrable to a weak leadership that is unable to defend against external threats or internal chaos
What's interesting with that is that I think it is wrong, the part against 'external threats'. France during the revolution was attacked by everyone, and despite absolutely no leadership, managed to beat back, well, everyone. By deferring power, it made its army stronger. Yes, then some the people the republic deferred power to then took the rest of it by force, but the laws were weak and the culture not set yet.
Certain discourse in other languages sometimes like to underline the difference between "rules" and "law" as in "we must aspire to be a state built on law, not a state built on rules." (not necessarily claiming English is such a language either)
Everything done without consideration is very quickly evil. Free tragedy of the commons with every free market; equivalents of Malthus for poverty wages and zero profit margins in the economy; Nash games where all parties want to defect and want the other not to; AI optimising for paperclips.
Rule of law is a pillar, but not the only one — in an ideal case the laws themselves are bound by constitutional requirements, and the constitutional requirements are bound by democratic will, and the democratic will by freedom of speech, and the freedom of speech by a requirement for at least attempting to be honest.
> Actually they didn't. Everything the Nazis did they had a law for. The mass murder was all lawful according to the 3rd Reich's laws.
This is false. Even if you take the Nazi propaganda that their laws were themselves lawful (which they were not, beginning with the clearly unlawful capture of power) at face value, the Nazi regime did not adhere to its own laws and regulations. While in some cases the Nazi regime did codify a basis in law for their atrocities (i.e. excluding and expropriating jews), much of the Nazi terror both in a civil and military context would have been explicitly illegal under the law at the time.
This includes the November Progroms of 1938 (https://de.wikipedia.org/wiki/Novemberpogrome_1938), large parts of the Nazi's approach to warfare, as well as the entire Holocaust (the murder of more than 6 million jews and other "undesirables"), for which the Nazis did not bother to create any legal justification.
While the Nazi regime was deeply bureaucratic (in that it documented its policies, orders and their results in high detail) this is not the same as "following the law". Most of the Nazi's atrocities evolved not through a process of lawmaking, but from their racist ideology and were given legitimacy through the highly personalized nature of the regime: Hitler was explicitly above the law, as were his orders, not matter if expressed through him personally or in his name by his followers.
"Everything the Nazis did they had a law for. The mass murder was all lawful according to the 3rd Reich's laws."
Can you cite those laws?
I doubt you can, because they do not exist. There were laws for removing jews from academic positions and to confiscate their belongings - but no law allowing to kill them based on them being jews.
The Nazis operated from the very beginning on the principle do things and later maybe add a law about it, if necessary.
"the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power."
You ought to distinguish 'the law' that can be discriminatory, unjust, imperfect, and 'the rule of the law', which in theory cannot. In practice, the 'rule of the law' was never truly achieved, nowhere, and recently (post 9/11 it seems) the US might have gotten further from the hypothetical 'perfect state'. Presidential pardon, Guantanamo, or I think closer to everyday life civil forfeiture, or arrest without cause, interrogation without a lawyer...
Some exceptions to the rule of law are just good practice: immunity to the executive power from executing a voted law, immunity for the legislative power (in some countries like France this immunity have some caveats) while elected. Sadly it breeds corruption.
That's not what rule of law is. Rule of law requires following the established constitutional order which the Nazis did not. A feudal king ruling on his whims has many laws, but there is not rule of law.
>The rule of law is a political and legal ideal that all people and institutions within a country, state, or community are accountable to the same laws, including lawmakers, government officials, and judges.
But the Nazis themselves were accountable to their own laws. It was a highly lawful state. Only the laws were pretty fucked because the society lacked any morality.
I know what you mean, and I do agree with your main point about not blindly following orders. I hope most people do. It's just the way you phrase it, I also have to disagree. The Nazis at their core were not "lawful", not even "lawful evil". Not unless the one law is "as long Hitler says it's fine, it's fine".
> Any hierarchy, no matter how authoritatively managed, and any communication of orders, no matter how autocratically and dictatorially issued, would stabilize and thus limit the total power of the leader of a totalitarian movement. In the language of the Nazis, it is the dynamic, never-resting "will of the leader" (and not his orders, which could be given a definable authority) that becomes the "supreme law of total rule".
> Hitler did sign an order for the T-4 euthanasia program. In the T-4 program as many as 100,000 German citizens who were thought to be ‘unworthy of life’ were murdered by Nazi party authorities and other German collaborators. When the German population caught on to what the Nazis were doing with T-4, they protested and Hitler was forced to publicly back down and cancel the program (although it continued secretly in the camps). Having been embarrassed by a written order once, Hitler became wary of doing it again. Important Nazi officials confirmed the oral transmission of Hitler’s secretive orders.
The controlled substance act violated the constitution as it regulates even intrastate trade of drugs. It relies on the tyrannical Wickard V Filburn ruling which says intrastate commerce is actually interstate commerce. The charges against Ross relied on law that flagrantly transgress the 10th amendment of the US constitution as written and as enforced.
This is why they needed an actual amendment to nationally ban, say, home made liquor.
It was 'accurate' until the 1930s when a certain lawyer with initials FDR found his programs unconstitutional, so he threatened to pack the Supreme Court until they were willing to shit can the 10th amendment.
I'd argue more have died from drug regulations than the Nazis, particularly when you factor in how DEA licensing and FDA approval corruption stifles access to medicine, and how prohibition fosters violence without meaningfully curbing harmful drug use.
Can you hear yourself? Are you really saying that "drug regulation" has caused more death than the tens of millions who died in ww2? Not to mention the millions and millions of people whose lives have been saved by drug regulation as they are not exposed to harmful drugs from charlatans.
39 million people died on the European theater of WW2 alone. Estimates of Jewish deaths during the holocaust range from 4.9 and 5.9 million people. Are you seriously suggesting drug ~regulation~ caused more deaths?
Silk road was not primarily used for "unregulated medicine" but for recreational drugs, weapons and other quite unsavory illegal things.
The bodies dead from the Holocaust are somewhat countable.
The bodies dead because of worldwide drug wars, because it is insanely costly to sell new medicines, and because some poor African child could not get a medicine because a company spent 500 million to get it approved and needs to recoup their costs in the inflated US market is much harder to count.
It's easier I guess to just frame the counterparty as downplaying the Holocaust. I am just not taking the death of the Jews seriously enough, perhaps I am some kind of racist or culturally insensitive person.
In Germany it is currently illegal to criticise Israel. You'll pardon me for being a bit skeptical about rule of law. Rule of good law is good, but rule of bad law is bad.
one of the German states foundations is responsibility for the Holocaust, which led to the founding of the state of Israel.
There are laws in Germany that make it a crime to condone a crime (forgive, overlook, allow, permit )
Some German courts have ruled that the slogan "between the river and the sea" is condoning the unlawful removal of Israelis or that the slogan is firmly attached to Terrorist Organization Hamas (therefore is by default a criminal statement )
Plenty of people have been fined for chanting the slogan at German protests against the current conduct of Israel in Gaza and West Bank.
There isn't a German law that states "it is illegal to criticize Israel" but laws like the following have been used to punish people criticizing Israel, in Germany:
Some German courts have thrown out some of these cases, they don't agree the Condone Crime laws can be applied to chanting 'between the river and the sea'
I understand that you could face charges if you criticized a group of people and expressed something that can be interpreted as a call for their elimination.
Pretending that those charges are for the criticism doesn't seem right, though.
