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58.3.mullender
58.3.mullender
58.3.mullender
58.3.mullender
58.3.mullender
58.3.mullender
58.3.mullender
58.3.mullender
58.3.mullender
58.3.mullender
58.3.mullender
58.3.mullender
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58.3.mullender

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  • 1. Nazi Law and the Concept of CommunityRichard MullenderUniversity of Toronto Law Journal, Volume 58, Number 3, Summer2008, pp. 377-387 (Article)Published by University of Toronto PressDOI: 10.1353/tlj.0.0009 For additional information about this article http://muse.jhu.edu/journals/tlj/summary/v058/58.3.mullender.html Access Provided by Newcastle University at 01/16/13 1:18PM GMT
  • 2. Richard Mullender* NAZI LAW AND THE CONCEPT OF COMMUNITY†In The Third Reich in Power: 1933 – 1939, Richard Evans pursues the themethat the Nazis used law, terror, and propaganda as ‘techniques of governance’that would serve to Nazify Germany. Evans also provides support for the conclusionthat the Nazis’ claims to give expression to the life of a people’s community(Volksgemeinschaft) were bogus. For the techniques of governance on which theyrelied established a ‘terror machine.’ Michael Oakeshott’s account of ‘enterprise associ-ation’ affords a means by which to gain analytic purchase on Nazi Germany as asocial formation. An enterprise association is highly instrumental and exhibits alack of sensitivity to the interests of individuals and particular groups.Government uses the levers of power at its disposal to pursue an agenda intowhich it integrates the law’s addressees. Assuming that Nazi Germany wasan enterprise association, the misgivings concerning the concept of communityexpressed by many human-rights lawyers since World War II would seem to be over-stated. While the Nazis made regular appeals to empirical community(Volksgemeinschaft), they worked assiduously to undermine ethical community.Ethical community is an ideal that specifies that law should adequately accommodatethe interests of all those in the group it is supposed to serve. The Nazis’ attitude towardethical community indicates a lack of commitment to law in the narrow sense (asdefined by Nigel Simmonds). But, in inducing patterns of obedience in those overwhom they wielded power, the Nazis had a legal system in the wide sense (definedby Simmonds).Key words: people’s community (Volksgemeinschaft)/enterprise association/human rights/empirical community/ethical communityLaw, or what passed for law in Nazi Germany, has been grist to themill of jurisprudence since the end of World War II. For example, * Newcastle Law School, Newcastle University. † A review of Richard J. Evans, The Third Reich in Power: 1933 –1939 (London: Allen Lane, 2005). Subsequent references are to Evans, Third Reich, and appear parenthetically in the text. This book is the second in a three-volume series on the history of the Third Reich; the first volume ‘tells the story of the origins of the Third Reich’ and recounts ‘the Nazis’ rise to power through a combination of electoral success and massive political violence.’ Richard J. Evans, The Coming of the Third Reich (London: Allen Lane, 2003) at xv [Evans, Coming]. I am grateful to John Alder, Jason Beckett, Tony Honore, Elena Katselli, William Lucy, Emmanuel Melissaris, Colin Murray, ´ Patrick O’Callaghan, Judith Resnik, and Ian Ward for their comments on earlier drafts of this essay. For the same reason, I am grateful to those who commented on earlier drafts during seminars given at the Universities of Newcastle and Plymouth.(2008), 58 UNIVERSITY OF TORONTO LAW JOURNAL DOI: 10.3138/utlj.58.3.377
  • 3. 378 UNIVERSITY OF TORONTO LAW JOURNALboth the participants in the Hart – Fuller debate discussed Nazi lawwhen staking out their respective positions.1 Other prominent legalphilosophers have followed their lead (e.g., Ronald Dworkin).2Analysis of this sort may encourage those who read it to assumethat they have an adequate understanding of the Nazis’ approach tolaw and governance. Moreover, any such assumption is likely to bereinforced by regular examination in the mainstream media of theHolocaust and the Nazis’ other enormities (e.g., programs of eugenicsin pursuit of ‘racial hygiene’). Lawyers who assume that they havegrasped the essentials of Nazi misrule are likely to learn much fromRichard Evans’ The Third Reich in Power: 1933 – 1939. Evans is reluctantto engage in moral judgement and identifies his task as the acqui-sition of ‘understanding.’3 In this he succeeds. He shows how theNazis used law, in combination with terror and propaganda, toadvance their political ends: securing themselves in power, preparingfor war, and fostering the ideal of a German people’s community(Volksgemeinschaft).4 Evans’ exposition is broad in scope. He ranges over the ‘the PoliceState’ (embracing, most obviously, the Gestapo and the concentrationcamps), the regulation of the German economy, and the sequence ofevents that culminated in the outbreak of World War II. He alsoexamines the topics of religion, culture, and community, and theNazis’ pursuit of a ‘racial utopia.’ As his narrative unfolds, Evansdescribes events that led Lon Fuller to conclude that the Nazisshowed scant regard for the ‘inner morality of law’ (the ‘indispensa-ble conditions for the existence of law’).5 Prominent among them isan account of the Rohm purge, in which legislation retrospectively ¨converted the murders of Hitler’s leading Brownshirt critic andsome of his followers into ‘lawful’ executions (c. 1). But becauseEvans (unlike Fuller) focuses exclusively on Nazi governance, he isable to give fine-grained accounts of the operations of law in the 1 H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harv.L.Rev. 593 at 615– 21 (rejecting arguments that Nazi law was ‘not law’ because of its ‘moral iniquity’); Lon Fuller, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’ (1958) 71 Harv.L.Rev. 630 at 648– 57 (identifying lack of commitment to principles of ‘good order’ as a feature of the Nazi legal system). 2 Ronald Dworkin, Law’s Empire (London: Fontana Press, 1986) at 101–7. 3 Evans, Coming, supra note † at xx. See also at xviii, where the author contrasts his approach with the effort to offer a ‘moral history’ of Nazi Germany in M. Burleigh, The Third Reich: A New History (New York: Hill and Wang, 2000) [Burleigh, Third Reich]. 4 See ibid. at xviii (criticizing Burleigh, ibid., for ‘omit[ting] any detailed consideration of propaganda’ in Nazi Germany) and 165 (noting that Hitler placed emphasis on the practical usefulness of terror in Mein Kampf ). 5 Lon Fuller, The Morality of Law, rev. ed. (London: Yale University Press, 1969) at c. 2.
  • 4. NAZI LAW AND THE CONCEPT OF COMMUNITY 379Third Reich.6 Thus we find him speaking in some detail to an issuethat has been touched on by, inter alios, Dworkin: the use of law byjudges and other public officials to counter or, at least, mitigate theeffects of Nazi brutality.7 Evans notes that (in a limited number ofcases and in the early years of the Nazi regime) judges identifiedthe abuse of prisoners in concentration camps as criminal (81 – 2). These decisions worked to make a feature of the inner morality of law,as described by Fuller, a reality, to wit, congruence between declared ruleand official conduct.8 But by 1938, the Nazis were unwilling even to abideby the harsh body of rules applied to those imprisoned in the concen-tration camps (591).9 Moreover, even where official conduct corre-sponded with declared rules, might often trumped right. Thus, whenthe trial of Pastor Martin Niemoller, an anti-Semite who was critical of ¨Hitler, ended in an acquittal, he was (on Hitler’s orders) promptlyarrested and confined to Sachsenhausen (231).10 Other leading Nazisalso exercised power in this way. For example, Heinrich Himmlerdeclared in 1937 that SS personnel who breached the Criminal Code’sprohibition on homosexuality would, on their release from prison, besent to a concentration camp and there ‘shot while trying to escape’ (532). While Evans covers ground traversed by legal commentators such asHart, Fuller, and Dworkin, he pursues a theme that does not feature intheir writings: the use of law, terror, and propaganda as ‘techniques ofrule’ that would serve to bring about the Nazification of Germany (118,120– 1).11 In pursuit of this theme, he discusses laws that have notfigured prominently in jurisprudential debate concerning the Nazis.For example, he examines the Editors’ Law of 1933, which madeeditors personally liable for publishing material that was ‘calculated toweaken the strength of the German Reich’ or ‘the community will ofthe German people’ (144). Some newspapers responded to theEditors’ Law by publishing factually accurate reports that were unpala-table to the regime. For example, the liberal Frankfurter Zeitung did this 6 Among the many bodies of law surveyed by Evans are those that related to the Gestapo and the police (54 –5), the Nazis’ efforts to Aryanize the economy (378 – 91), and the medical profession and the pursuit of ‘racial hygiene’ (444 –5). 7 Dworkin, Law’s Empire, supra note 2 at 101 –7. 8 Fuller, Morality of Law, supra note 5 at 81 –91. 9 See also Evans, Third Reich at 82 –3 (noting, inter alia, that prisoners who ‘discussed politics with the aim of “incitement,” or spreading “atrocity propaganda,” were to be hanged’).10 See also Evans, Coming, supra note † at 165 (noting that, even before World War I, ‘a deep contempt for . . . law’ had informed Hitler’s thinking).11 Cf. Fuller, Morality of Law, supra note 5 at 40 (identifying ‘the principle object of government’ in regimes such as Nazi Germany as being to ‘frighten’ citizens into ‘impotence’).
  • 5. 380 UNIVERSITY OF TORONTO LAW JOURNALfor a number of years by employing the formula ‘there is no truth in therumour that . . .’ before detailing the relevant government practice orpolicy (142 – 3).12 However, most editors (fearing for their liberty andperhaps even their lives) met the law’s requirements. The upshot was,as Evans notes, an ‘increasingly homogeneous’ and supine press (147).Having induced in the press a state of permanent foreboding, Hitler’sminister of propaganda, Joseph Goebbels, could rely on editors topresent, for example, the Nuremburg Laws of 1935 in precisely thelight he wanted.13 Thus newspapers described prohibitions on marriagebetween Germans and Jews as stabilizing measures (546). This anodynelanguage suited the Nazis very well at a time when they were preparingto host the 1936 Olympics and wished to downplay their anti-Semitism(570 – 1). While using provisions like the Editors’ Law to cow their critics, theNazis found support in the resulting homogeneity for the claim thatGermany was a united people’s community. But Evans shows this claimto be bogus. Rather than using law to reflect practical life in Germany,the Nazis operated a ‘terror machine’ that undercut ‘community’ as apractically significant concept (109). This is because public opinioncould not crystallize into the practices, laws, and institutions that are‘the witness and external deposit’ of a community’s moral life.14Nonetheless, the Nazis repeatedly invoked the concept of communitywhen passing laws that directly discriminated against and marginalizedparticular groups. Thus the Nazis identified the Law for theRestoration of the Professional Civil Service (which removed all Jewishcivil servants, including judges, from office) as serving to protect theGerman people from ‘community aliens’ (Gemeinschaftsfremde) (14 – 5). At the centre of the ‘community’ to which the Nazis made appealloomed the figure of Hitler. Evans dwells at length on the ‘cult of theLeader’ that grew up around Hitler (122 et seq.). While exploring thiscult’s relationship with the concept of community, he discusses the writ-ings of Rudolf Huber, a constitutional lawyer, who described Hitler’s auth-ority as ‘overriding and unfettered’ (44). The source of this authority was,on Huber’s analysis, Hitler’s unique ability to give expression to ‘theunited will’ of the people’s community he led (44).15 This, according12 On the Frankfurter Zeitung, see also Richard Grunberger, A Social History of the Third Reich (London: Orion Books, 2005), 500.13 Permanent foreboding (as described in the text) was termed crainte by Montesquieu, who distinguished it from peur (a fearful, but passing, condition). See J.N. Shklar, Montesquieu (Oxford: Oxford University Press, 1987) at 84.14 On law as ‘the witness and external deposit’ of a community’s moral life, see Oliver Wendell Holmes, ‘The Path of the Law’ (1897) 10 Harv.L.Rev. 457 at 459.15 See also Evans, Coming, supra note † at 205 (noting that Joseph Goebbels described Hitler in 1925 as ‘the born tribune of the people’).
  • 6. NAZI LAW AND THE CONCEPT OF COMMUNITY 381to Huber, explained why Hitler’s pronouncements had the force of lawand could override existing legal provisions. The upshot was, as Evansnotes, a retreat from the ideal of the Rechtsstaat and the emergence ofa ‘dual state.’ Here, Evans makes use of the analysis of Ernst Fraenkel,who in 1941 had identified Nazi Germany as both a ‘normative state,’where laws were applied, and a ‘prerogative state,’ an extra-legal systemin which Hitler’s will was the source of compelling reasons for action(45). So, if Nazi Germany was neither a conventional normative state nor acommunity, what sort of social formation was it? Evans, as we have seen,describes it as a ‘terror machine.’ This being so, we might see him asoffering a variation on the theme that Hitler and his henchmen were acriminal gang who successfully coerced those who came within theirorbit.16 But this description lacks the ‘analytic rigour’ that Evans identifiesas important in the analysis of Nazi Germany.17 For ‘terror machine’suggests that the Nazis adopted a systematic approach to the organizationof human conduct, but it does not offer a richly elaborated account of thesystem they favoured. We might make good this shortcoming in Evans by viewing the ThirdReich as a form of enterprise association, as described by MichaelOakeshott. According to Oakeshott, an enterprise association is highlyinstrumental.18 He illustrates this point by reference to the Baconianunderstanding of the state as civitas cupiditatis: a corporate enterprisefor the exploitation of the earth’s resources.19 Oakeshott also recognizesthat enterprise association threatens, and may undercut, the dispositionto cultivate and enjoy individuality (which, on his analysis, emerged inEurope in the late Middle Ages).20 This is because those who participatein an enterprise association give up some of their distinctiveness and mayconstitute, in important respects, a single ‘person.’21 Moreover, whileOakeshott does not pursue the point in detail, he classifies NaziGermany as an enterprise association.2216 At 152, Evans discusses the parallels drawn by Bertolt Brecht between Hitler and a mobster in The Resistible Rise of Arturo Ui.17 Evans, Coming, supra note † at xix.18 Michael Oakeshott, On Human Conduct (Oxford: Clarendon Press, 1975) at 199– 205.19 Ibid. at 290.20 Ibid. at 224– 9.21 Ibid. at 203.22 Michael Oakeshott, The Social and Political Doctrines of Contemporary Europe (Cambridge: Cambridge University Press, 1939) at xix– xxii. The emphasis placed by the Nazis on coordination (Gleichschaltung) as between party and state lends support to Oakeshott’s categorization of the Third Reich as an enterprise association. On coordination as a feature of Nazi practice (and discourse), see Burleigh, Third Reich, supra note 3 at 252; Ian Ward, Law, Philosophy, and National Socialism: Heidegger, Schmitt, and Radbruch in Context (New York: Peter Lang, 1992) at 13 –5.
  • 7. 382 UNIVERSITY OF TORONTO LAW JOURNAL Evans’ text provides ample support for this classification. He tells usthat the Nazis’ ‘overriding purpose’ on coming to power was to readyGermany for war (so as to advance the racist, aggrandizing agendadescribed by Hitler in Mein Kampf; 210). To this end, the Nazisadopted, among other things, a ‘four-year plan’ that involved ‘unpre-cedented’ levels of legal intervention in the economy (409).23 Thesame agenda found expression in the use of terror and propagandato bring about ‘the transformation of the German nation into onepeople’ (120).24 Statements such as this merit close attention. Theyundercut the Nazis’ claims to be giving expression to the life of a com-munity whose practical outlook they simply sought to reflect. They alsomake it plain that the Nazis, when referring to ‘community,’ were nottalking about a collectivity that reflects critically on the basic terms ofsocial life; rather, they had in mind serried ranks of obedient NationalSocialists, as depicted in, for example, Leni Riefenstahl’s (Nazi-fundedand Cannes award – winning) film Triumph of the Will.25 Moreover, theNazis’ regular resort to manipulation (by using propaganda to ‘perme-ate the person’ without his or her noticing it) supports the conclusionthat their invocations of community were bogus (127).26 Among the many bodies of law discussed by Evans that support theclaim that Nazi Germany was an enterprise association is one that, atfirst blush, looks wholly benign. In the late 1930s, ‘a Nazi epidemiologist. . . established the link between smoking and lung cancer’ (319). Thisbreakthrough prompted the Nazis to introduce a workplace smokingban. Books, pamphlets, and posters accompanying the ban warned ofthe dangers of smoking and pointed out repeatedly that Hitler neverput a pipe, cigar, or cigarette to his lips (319). Evans identifies thesmoking ban, the associated propaganda, and other measures in theNazi ‘war on cancer’ as giving expression to an ‘overriding imperative’23 See also at 655, where Evans notes that ‘[w]ithin two days of the [German] takeover [of Austria in 1938], the Austrian economy had been subsumed into the Four-Year Plan.’24 The phrase quoted in the text is from a speech by Goebbels made in November 1933. See also Evans, Coming, supra note † at 173 (noting that, as early as 1920, Hitler’s ‘rhetoric . . . frequently . . . stressed the need to put common needs above the needs of the individual’).25 On Triumph of the Will (the title for which was chosen by Hitler) see Evans, Third Reich at 125–7. See also Evans, Coming, supra note † at 197 (noting that Hitler had identified ‘the nationalisation of our masses’ as one of his aims in Mein Kampf ) and 217 (describing ‘a terrifyingly single-minded sense of commitment’ as a prominent feature of the ‘Nazi movement’).26 Evans quotes from a speech by Goebbels (in March 1933) on ‘the secret of propaganda.’ See also Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986) at 377–8 (describing manipulation as an ‘invasion of autonomy,’ since it ‘perverts the way that [a] person reaches decisions, forms preferences or adopts goals’).
  • 8. NAZI LAW AND THE CONCEPT OF COMMUNITY 383(319),27 which was to improve the health of the Aryan race so as tofacilitate pursuit of the Nazis’ political objectives. Moreover, the Nazisadopted other measures intended to advance the health-related andlarger aims of the smoking ban and to sustain the atmosphere of terrorin the Third Reich. For example, the Police Chief in Erfurt ‘admonishedcitizens “to remind women they [met] smoking on the streets of theirduty as German wives and mothers”’(522). In other parts of thecountry, ‘stormtroopers snatch[ed] cigarettes from the lips of womenwhom they saw smoking in public’ (522). Evans uses these and countless other examples to impress upon hisreaders the day-to-day operations of the terror machine he describes.It was this apparatus, and not impulses within an actually existing com-munity, that shaped practical life in the Third Reich. This point hasrelevance to the operations of liberal-democratic legal systems today.These systems are (among others things) supposed to secure humanrights. In this they exhibit a commitment to the ideals enunciatedin the 1941 Atlantic Charter by Franklin D. Roosevelt and WinstonChurchill,28 including respect for human dignity and the rights thatprotect it. But unease concerning the concept of community hasattended the pursuit of these ideals. We see it in the Preamble tothe Universal Declaration of Human Rights (1948), which emphasizesthe ‘fundamental human rights’ and ‘dignity’ of ‘the human person’and downplays the significance of collectivities other than ‘the humanfamily.’29 Likewise, we see it in John Rawls’s efforts to describe amodel of human association free from strong commitments to com-munity.30 This is unsurprising. For those who have sought toadvance the agenda of human rights in the post – World War IIcontext have typically regarded ‘community’ (so closely associatedwith Nazism) as a source of danger.31 But if, as Evans indicates,Nazi invocations of a shared form of life were bogus, then communitymay be a concept that has received an unduly harsh press in the lastsix decades. This prompts the question, What precisely is a community? Here, wemight develop some points made earlier. Communities have an empiricalaspect: a collection of (sometimes retrograde) practices, institutions, and27 See also Robert N. Proctor, The Nazi War on Cancer (Princeton, NJ: Princeton University Press, 1999) at 4, 198 –203.28 Philippe Sands, Lawless World: Making and Breaking Global Rules (London: Penguin, 2005) at 8– 9.29 Henry J. Steiner & Philip Alston, International Human Rights in Context: Law, Politics, Morals, 2d ed. (Oxford: Oxford University Press, 2000) at 1376.30 John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1971).31 John Rawls, Political Liberalism (New York: Columbia University Press, 1993) at 37, associates community with ‘the oppressive use of state power.’
  • 9. 384 UNIVERSITY OF TORONTO LAW JOURNALassociated dispositions.32 But communities also have an ethical dimension.Some of those within them reflect on the adequacy of existing practicalarrangements. Moreover, reflection of this sort, on occasion, promptsthose who engage in it to call for reforms that will better accommodatethe interests of relevant individuals and/or groups.33 This means thatwe cannot reduce a community to a celebration of ‘the way we dothings around here.’ Instead, we should see it as a context in which indi-viduals and groups can, and sometimes do, make arguments for benignreform.34 When we apply these points to Germany between 1933 and 1939, wefind that the Nazis wielded power in ways that did not give expressionto but, rather, undermined community.35 In the pre-war period, someindividuals and groups were ready to criticize the Nazis for the way inwhich they exercised power. This is a topic to which Evans’ discussionof relations between the Nazis and the Catholic Church is relevant. InJuly 1933, the Papacy entered into a Concordat with the Nazis: inreturn for an assurance from the Nazis that they would protect Catholiclay institutions, the Church made a commitment to abstain from involve-ment in politics. Nonetheless, the Catholic Church in Germany objectedto a wide range of Nazi policies, including forcible sterilization under theLaw for the Prevention of Hereditarily Diseased Offspring (507, 515). But32 Richard Mullender, ‘Hegel, Human Rights, and Particularism’ (2003) 30 J.L.& Soc’y 554 at 562– 3 [Mullender, ‘Hegel’] (discussing the concept of community as elaborated in G.W.F. Hegel, The Philosophy of Right, ed. A.W. Wood (Cambridge: Cambridge University Press, 1991)).33 Ibid. On the model described in this essay, cooperative morality is a feature of a community’s practical life, as is willingness to recognize and accommodate the otherness of others. See A.T. Honore, ‘The Dependence of Morality on Law’ (1993) ´ 13 Oxford J.Legal Stud. 1 at 2 (identifying commitments to coexistence and cooperation with others and a readiness to ‘assess behaviour in the light of its impact on others’ as components of cooperative morality) and 8 (contrasting cooperative morality with a ‘hostile’ variant that found expression in the treatment meted out to non-Aryans by Nazis). See also R.R. Williams, Hegel’s Ethics of Recognition (London: University of California Press, 1997) at 84 –5 (on willingness to recognize and accommodate the otherness of others, or Freigabe). (‘Hostile’ morality as described by Honore bears similarities to ‘politics’ on the model described by (the ´ Nazi-supporting) political philosopher Carl Schmitt: a conflictual relationship in which ‘friends’ seek to prevail at the expense of ‘foes.’ See Mullender, ‘Hegel,’ supra note 32 at 561, and sources cited therein.)34 See Amartya Sen, Identity and Violence: The Illusion of Destiny (London: Allen Lane, 2006) at 34 (arguing that while embeddedness in a particular culture ‘may influence the nature of our reasoning, [it] cannot invariably determine it fully’).35 Evans recognizes that, because of the impact of, inter alia, defeat in World War I, hyperinflation, and the Depression, the community undermined by the Nazis was not in rude health in the years preceding the Third Reich. See Evans, Coming, supra note † at c. 2.
  • 10. NAZI LAW AND THE CONCEPT OF COMMUNITY 385activity of this sort was no match for the Nazi terror machine, as Evansmakes clear in his account of the Nazis’ efforts to intimidate, discredit,and silence their Catholic critics (234 et seq.).36 For example, Goebbels’Propaganda Ministry put pressure on the Justice Ministry to bringcharges against Catholic clerics for breaching prohibitions on homosexu-ality and child abuse (245). By 1937, more than a thousand priests,monks, and friars were awaiting trial, and the press was railing against aCatholic ‘sore on the healthy racial body’ (245). Goebbels followed thisup by denouncing Catholic ‘corrupters and poisoners of the people’ssoul’ on national radio (245). Little wonder, then, that the voices of dissent became fewer andweaker (213). For example, only a few clerics (and other critics)spoke out (in muted terms) against the Nazi-orchestrated anti-Jewishpogrom of 9 – 10 November 1938, the Reichskristallnacht (587 –9). Bythen, in any case, law, terror, and propaganda had done their work,and community (on the model described earlier) had been under-mined.37 This is a view to which Evans lends support when he placesemphasis on the statement for which Pastor Martin Niemoller is bestknown:First they took the communists, but I was not a communist, so I said nothing. . ..[T]hen they took the Jews, but I was not a Jew, so I did little. Then when theycame for me there was no one left who could have stood up for me. (233) These words suggest that a community, far from being a threat to themost fundamental interests of its members, may afford a means bywhich to protect them.38 And if this is the case, we should question an 36 See also Evans, Coming, supra note † at 13, on an earlier instance of hostility on the part of the German state toward Catholics, Bismarck’s Kulturkampf (struggle for culture) of the 1870s. 37 Cf. Michael Holquist, Dialogism: Bakhtin and His World (London: Routledge, 1990) at 52 (arguing that totalitarian appeals to ‘some primordial Gemeinschaft’ spell ‘autism for the masses’). 38 While the point cannot be pursued here, the Nazi occupation of Holland provides an example that supports the claim made in the text. On learning that 425 Jewish men were to be deported to a concentration camp, workers in Amsterdam protested (in February 1941) by going on strike for two days. This show of solidarity (which, on one account, was ‘unique’ in Nazi-occupied Europe) bespeaks the existence of a community that sought to defend the interests of some of its constituent members. On the ‘February Strike’ see Ian Buruma, Murder in Amsterdam: The Death of Theo Van Gogh and the Limits of Tolerance (New York: Penguin, 2006) at 237–8. While we may harbour doubts concerning the uniqueness of the ‘February Strike,’ we can certainly distinguish it from, for example, the assistance (e.g., shelter) given to Jews in occupied France by those who sought to resist Nazi rule. This is because the ‘February Strike’ gives expression to assumptions associated with disagreement in ‘the public sphere.’ The public sphere is, according to Charles Taylor, ‘a . . . common space . . . in which people understand themselves to be engaged in a
  • 11. 386 UNIVERSITY OF TORONTO LAW JOURNALassumption that has informed thinking on human rights since World WarII. This is the assumption that the Nazis demonstrated, with brutal clarity,the practical threat constituted by actually existing communities. Wewould be nearer the mark if we identified Nazi Germany as a gruesomeenterprise association.39 The evidence surveyed by Evans certainly sup-ports this conclusion. While the Nazis’ claims to give expression to the life of a communitywere bogus, it is clear that they used the instrumentality of law, in avariety of forms (e.g., statutes and decrees), to govern their practicalaffairs. This prompts the question, so often asked since May 1945, ofwhat significance we should attach to the Nazis’ resort to law. A distinctiondrawn by Nigel Simmonds in Law as a Moral Idea provides a basis on whichto address this question. Simmonds distinguishes between ‘wide’ and‘narrow’ understandings of law.40 Law in the wide sense coordinateshuman behaviour. This would be the case where, for example, patternsof obedience (among the law’s addressees) emerge in response toorders backed by threats issued by one who assumes the status of a sover-eign.41 However, law in this wide sense may not be oriented toward thepursuit of justice or of the common good. Where this is the case, it will(on Simmonds’ account) have no necessary connection with morality.42By contrast, law in the ‘narrow’ sense coordinates behaviour in waysthat satisfy the moral tests ( pursuit of justice and the common good)identified by Simmonds as internal to law.43 If we apply Simmonds’ distinction to the Nazi system of governance(embracing legal norms, propaganda, and terror), we can categorizethat system as a form of law in the wide sense; it served to coordinate discussion, and capable of reaching a common mind.’ We might add that this is the sort of context in which the members of a community (on the model described in this essay) seek to address practical concerns. Charles Taylor, A Secular Age (Cambridge, MA: Harvard University Press, 2007) at 187. On the shelter given to Jews in occupied France see Rod Kedward, La Vie en Bleu: France and the French Since 1900 (London: Allen Lane, 2005) at 296.39 Cf. Niall Ferguson, The War of the World: History’s Age of Hatred (London: Allen Lane, 2006) at 415 (likening Nazi Germany to Mordor, in J.R.R. Tolkien’s Lord of the Rings, because it was, inter alia, ‘a realm of slaves and camps’).40 Nigel Simmonds, Law as a Moral Idea (Oxford: Oxford University Press, 2007) at 42 [Simmonds, Law].41 Simmonds’ choice of the adjective ‘wide’ is apt. The understanding of law to which it applies would seem to accommodate real-world variations on the theme of the gunman situation described by Hart in The Concept of Law: for example, the patterns of obedience established in Haiti by the Tonton Macoutes (‘Papa Doc’ Duvalier’s private army of cutthroats). See S.E. Finer, Comparative Government: An Introduction to the Study of Politics (London: Pelican, 1974) at 56, 575 (on the Tonton Macoutes), and H.L.A. Hart, The Concept of Law, 2d ed. (Oxford: Clarendon Press, 1994) at c. 2.42 Simmonds, Law, supra note 40 at 60.43 Ibid. at 60 –1.
  • 12. NAZI LAW AND THE CONCEPT OF COMMUNITY 387the behaviour of those subjected to it (and thus afforded the Nazis ameans by which to pursue their purposes). However, this system of gov-ernance failed adequately to serve the interests of those whose conductand environment it ordered, for it constituted, among other things, astanding threat to liberty. Hence, if we assume (as Simmonds does)that an ‘inviolable sphere’ of liberty is a requirement of justice, thenNazi law was, for this and many other reasons, unjust.44 Moreover, eventhose Nazi laws that were promulgated, clear, prospective, and intendedto produce benign effects (e.g., the workplace smoking ban) cannot bedescribed, with any strong sense of conviction, as just, for they ultimatelyserved the purposes of an enterprise association that had no interest inmeeting the moral requirements described by Simmonds. Thus we canconclude that, while the Nazis had law in the wide sense, they abandonedthe moral ideals internal to law in the narrow sense.45 Likewise, they aban-doned the ethical commitments internal to a community worthy of thename.44 Ibid. at 184, 186–7.45 The notion of abandoning the moral ideals internal to law (as understood on the narrow view) merits more extended examination than is possible here. When we talk of abandoning a commitment, we sound a critical note that does not have to do with (negative) consequences; rather, we appear to assume the intrinsic value of the relevant commitment (and fidelity to it) and, thus, talk in deontological terms. This is a point that has relevance to those examples of Nazi law that were clear, prospective, and served a benign purpose (e.g., the workplace smoking ban). While exhibiting these features, these laws constituted a betrayal of the moral purpose ascribed to law by those who take the narrow view described, and defended, by Simmonds, for laws such as the smoking ban were ultimately intended to serve ends that constituted a systematic attack on the ideals of justice and the common good identified by Simmonds as internal to law. This reveals the normativity of law (on the narrow view) to have a prominent deontological component. While Simmonds does not bring this point out in these terms, deontological assumptions do appear to inform some passages of Law as a Moral Idea: see Simmonds, Law, ibid. at 33 (on the ‘significant erosion of the moral fabric’ that occurs when we cease to recognize sources of ‘intrinsic value’); 38 (on ‘law’s place in our moral and political lexicon’ as ‘an intrinsically moral idea’); and 175 n.10 (on ‘Bentham’s denial of the intrinsic force of legality’).

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