Holocaust Remembrance Day: Revisiting a fundamental discussion in legal philosophy

João Marques de Azevedo/ January 27, 2021/

Holocaust Remembrance Day: Revisiting a fundamental discussion in legal philosophy

João Marques de Azevedo[1]

Holocaust is, for all the worst reasons, a deep mark in Human history and, as it has been said many times since then, remember it is something we ought to do if we do not want to see history repeat itself. The Holocaust, or in Hebrew, the Shoah (the catastrophe), was not a result of the intervention of monsters or beasts but of humans, making it even harder to cope with. It is, then, important that we understand its root-causes and the part that many played in it. The atrocities committed during Nazi Germany are the result of a poisonous set of ideas, that entrenched themselves and spread to all sectors of civil society and of the German State in the period from 1933 (in reality, even earlier) to 1945. The ideas came in the minds of men but soon became institutionalised. Its inclusion in the legal system, through legislation and the work of jurists and judges alike, played a fundamental part in what happened, and this must not be forgotten.

Scholars have discussed back and forth regarding what happened to the legal system during the Nazi period. In terms of legal theory and philosophy, the discussion was if the failures of the system, or better, the part played by judges and jurists, was a result of positivist beliefs or naturalist ones. Simply put, the question was: how could judges and law itself have become a vehicle for the crimes committed? Could laws be illegal? Could a legal system be deemed criminal? How to condemn judges for the application of law? This was the issue at hand during United States v. Josef Altstoetter, et al. (also known as the Justice Case), conducted before the Nuremberg Military Tribunals, a case that saw the indictment of Nazi judges and members of the Reich Ministry of Justice. In fact, in his opening statement, Taylor starts with: “This case is unusual in that the defendants are charged with crimes committed in the name of the law”[2], implying the criticism on positivist theory and the role of the judge as an automaton[3] that does nothing more than apply the law as it is, notwithstanding its morally abject content.

Kaufmann points this perspective as reflecting the ‘decadence of legal positivism’, meaning that positivism was taken to the extreme and any legal norm was considered to be within the content of Law. Bergbohm translated the consequences of this view as the need to recognise as binding “even the most abject law, insofar as it is created in a formally correct manner”[4]. While this is certainly so and the purely formal conceptualisation of law did fail[5], it has to be said that most of early positivist philosophers of the XIX century could not have foreseen such consequences, as they did not believe the legislator could actually enact abject laws[6].

However, what happened in Nazi courts was much more than the mere application of the law by the judges and many cases have reflected so. One example is the Katzenberger Case that was also mentioned by the prosecution in the Justice Case[7]. Lehmann Katzenberger, a 68 year old Jewish man, was accused of having had sexual relations with an ‘Arian’ woman (Irene Seiler), his tenant since 1932 – this was considered racial pollution, according to Art. 2 of the Law for the Protection of German Blood and Honour from 15 September 1935 (also known as one of the two Laws of Nuremberg). The penalty for this was imprisonment or hard labour.[8]  

The man, that was firstly found innocent by the Nuremberg District Court in 1941 due to the lack of substantial evidence to support such accusation, was brought before the Nuremberg Special Court in 1942, where the judge Oswald Rothaug also combined this with a case against Seiler for perjury, only to remove the option of having her testify in favour of Katzenberger again.

In the end, Rothaug made use of analogy and convicted Katzenberger to death under Art. 4 of the Decree Against Public Enemies of 5 September 1939[9]. This exceeded the mere application of law in different ways. He applied a decree from 1939 to acts committed prior to that period, even while the decree and, especially, its article 4 were to be applied to criminal acts committed during the state of war, and also, by doing so, Rothaug considered: (i) Katzenberger had used the state of war and the financial difficulties Seiler was living to exploit her (a mental construction that was created by the judge himself, not based on any facts); (ii) that such alleged actions were so wicked it called for the death penalty instead of 15 years or life in prison, other options foreseen in the decree. To this, it must be added, no proof or new evidence was attached to the case and in the first instance Seiler had testified that the accusation was false and these acts never happened.

As can be seen, Nazi legal officials did much more than only applying the law, they were driven by the hate that poisoned them. As Taylor also mentioned they:

“consciously and deliberately suppressed the law, engaged in an unholy masquerade of brutish tyranny disguised as justice, and converted the German judicial system to an engine of despotism, conquest, pillage, and slaughter”[10].

At the same time, it must be said that this was out in the open for everyone to see; this was never concealed. Schlegelberger, Reich Minister of Justice from 1941 to 1942, said in 1936:

“Accordingly, there can be no doubt that now the moral order and ideology, as recognized in the Party program, has to be taken into consideration in the interpretation and application of every norm of the existing law”.[11]

Additionally, in the same year, even Goebbels admitted that:

“While making his decisions the judge is to proceed less from the law than from the basic idea that the offender is to be eliminated from the community”[12].

In the end, the poison had found its way into legal methodology and this reflected that the thinking was not just legal positivism, it transcended positivism and even law itself; the Nazi ideology even called for decisions that were against the law[13].

At the heart of these arbitrary decisions that made so many victims laid a vague concept, the root of all evil, the concept of the “sound sentiment of the people”, sentiment that even justified punishment by analogy. In the words of Nazi jurist Hans Frank (also known as the Butcher of Poland):

“In the future, criminal behaviour, even if it does not fall under formal penal precepts, will receive the deserved punishment if such behaviour is considered punishable according to the sound sentiment of the people”[14].

These words even had previously been included in the Criminal Procedure Act of 1935, Article 267a, where one can read:

“If the trial shows that the defendant has committed an act which deserves punishment according to the sound sentiment of the people, but is not declared punishable by the law, the court will examine whether the underlying principle of a penal law applies to the act and whether justice can be helped to triumph by analogous application of that penal law”[15].

A sentiment which called for so many atrocities, for the forceful displacement of people, for persecution, for hatred and bigotry, in short, that fuelled death itself. A sentiment which, of course, found its expression in Nazi ideology, and, as such, the problem was the ideas of humans, more than the law itself. The Nazi judges were not automatons, they took an active part and were another cog in a giant killing machine.

In the following decades, it was Radbruch’s theory that was to solve the issue at hand (at least for the purpose of post WWII trials dealing with Nazi laws). According to him, only the norms that were pointed towards justice could be deemed as having legal quality[16]. Radbruch identified with his famous formula, what could be named ‘unauthentic law’ –  a law that is unbearably unjust is not law – but also, within it, ‘non-law’ – law that is formally valid but does not adhere to the principle of equality, therefore not serving and even denying justice[17].

History is not necessarily circular and events might not be repeated in the exact same way, instead one might view history as helical, moments of progress, stagnation, regress and progress again, nations rising and falling, without a necessary repetition, only with certain points of connection, but always with a forward direction.

Today, however, we might be getting closer to approaching one of those points of connection. Despite the scorched earth that was Europe in the aftermath of World War II and the waste that was laid to destroy the root of evil, beneath the ruins, these ideas seemed to hide and survive, only to comeback years later. Today we still hear them, sometimes not exactly using the same terms, but within the same political mannerisms, the populism, the idées reçues, the divisive rhetoric of ‘us versus them’, the incitements to hatred and to bigotry, the poison remains the same, it just comes from different snakes. We still hear calls for that same ‘sound sentiment of the people’, under different names, such as ‘very fine people’ or even calls for dictatorships of ‘good citizens’, but we can still hear them. Either attacking the US Capitol, marching the streets of Rome, Paris, Rio or Lisbon, the (not so) invisible flag they march under remains the same.

In order to avoid the risk of repetitions in the legal realm, constitutional precepts must be properly and objectively analysed. What offends constitutional principles and fundamental rights must be qualified as such; people or institutions that are objectively considered to vehicle such ideas must be deemed criminal for acting illegally. However, this is just a step, it is a way of establishing that law is ever vigilant in the protection of democracy, but this alone is not enough. The NSDAP was deemed illegal once; Hitler also took a step down in the beginning of his partisan life and in the end, he is long gone by now. These ideas have survived the death of the parties that promoted them and the deaths of their ‘prophets’.

As such, we are faced with a duty to the memory of those that suffered, a duty to remember them and to pass on their history, especially because few and fewer survivors remain to testify and because one day we might witness the last trial of a Nazi war criminal[18]. The solution passes necessarily through education for tolerance and acceptance, it passes through remembrance of the Holocaust, applied to all fields: law, politics, sociology, education, etc. We must recall those dreadful images of concentration camps and think of the victims not only as numbers, but as a silent, some still unnamed, proof of what happens when we look the other way and ignore the warnings. This time we need to engage in a firm commitment to democracy, we need to educate people on its nature and the nature of the freedom of expression because racism, xenophobia, homophobia, persecution of minorities and migrants and other attacks to human rights are not opinions.

[1] Bachelor’s in Political Science and International Relations (Faculty of Social and Human Sciences of the NOVA University of Lisbon). Holds a post graduate course in Law, in the speciality of International and European Law (NOVA School of Law). Currently in the final year of the Master’s in International and European Law at the NOVA School of Law. Research-Fellow at CEDIS (Center for R&D on Law and Society) and researcher and member of the Board of the Space Law Research Center (SPARC – CEDIS). Executive Secretary of the NOVA Refugee Legal Clinic.

Member of the European Centre for Space Law (ECSL) and the Space Generation Advisory Council (SGAC). Former intern at the Strategic Department of the Member States Relations and Partnerships Office (DG-SM) of the European Space Agency (ESA).

[2] “Section III, A – Opening Statement for the Prosecution, Trials of War Criminals before the Nuernberg Military Tribunals, Volume III: “The Justice Case”, Washington: United States Government Printing Office, 1951, p.31. 

[3] Bobbio has labelled this aspect of positivism as mechanical interpretation, something that is connected with the positivist approach, devoid of value, concerned with the validity and not the content of the law (Bobbio, N.; O Positivismo Jurídico, Lições de Filosofia do Direito (compiled by Nello Morra), São Paulo: Ícone, 1995, pp. 131-134). This idea is shortly summed by Montesquieu, as well, in his famous The Spirit of the Laws: “Mais les juges de la nation ne sont, comme nous avons dit, que la bouche qui prononce les paroles de la loi” (Montesquieu, Esprit des Lois (1777), Book XI, Chapter VI, p. 327).   

[4] Apud. Kaufmann A & Hassemer W, “Criteria of Justice”, Ottawa Law Review, Vol. 4: 403, Winter 1971, p. 408.

[5] Kauffman, A & Hassemer W; Introdução à Filosofia do Direito e à Teoria do Direito Contemporâneas, Lisboa: Fundação Calouste Gulbenkian, 3ª edição, 2015, p. 125. 

[6] Idem, p. 122. In addition, as it is generally acknowledged, one of the goals of positivism was actually to reduce the wide array of sources that were available to the judge of the Old Regime, which had resulted in some arbitrariness and the lack of legal certainty.

[7] A summary of the case can be consulted in Trials of War Criminals… op. cit., pp. 86-87, 653-654 and 663.

[8] This, according to Art. 5 (2) of the same law. The content of the Law for the Protection of German Blood and Honour can be found in “Selected Laws and Decrees”, in Trials of War Criminals… op. cit., pp. 180-181.

[9] Can be found in “Selected Laws and Decrees”, Trials of War Criminals… op. cit., p. 189.

[10] Trials of War Criminals… op. cit., p.31

[11] Apud. Trials of War Criminals… op. cit., p. 46.

[12] Apud. Trials of War Criminals… op. cit., 42.

[13] Kaufman & Wassemer, Introdução à Filosofia do Direito… op. cit., p. 124.

[14] This was said in the NSDAP Congress of 1935. Apud. Trials of War Criminals… op. cit., p. 46.

[15] “Selected Laws and Decrees”, Trials of War Criminals… op. cit., pp. 177-178.

[16] Kaufman & Wassemer, Introdução à Filosofia do Direito… op. cit., p. 138.

[17]  SOUSA E BRITO, J, “O que é o direito para o jurista?” in Miranda, J, et al. (orgs.) Estudos em homenagem a Miguel Galvão Teles, Volume I, Coimbra: Almedina, 2012, pp. 32-33.

[18] In fact, more recently, these trials have also had to face issues of the accused being already too old to stand trial, as it was discussed in the famous trials of Oskar Gröning or John Demjanjuk (the last trial, started in Munich in 2009, where he was 88 years old). Some say that what could be the last trial has already happened: the trial of Bruno D., former guard at the Stutthof concentration camp, that ended in July 2020. [“Former Nazi SS guard convicted in Germany’s ‘last’ Holocaust trial”, Deutsche Welle, available at https://www.dw.com/en/nazi-holocaust-stutthof-trial/a-54274225 (consulted on 26 January 2021)].

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About João Marques de Azevedo

Secretário Executivo da NOVA Refugee Clinic, é Licenciado em Ciência Política e Relações Internacionais (2017) pela Faculdade de Ciências Sociais e Humanas da Universidade Nova de Lisboa.