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Student Brief: “The Nazi Obsession with Legalizing the Holocaust” by Harry Reicher

By student blogger Moshe Zvi Marvit

On November 04, 2009, Professor Harry Reicher, Adjunct
Professor at University of Pennsylvania Law School and Scholar-in-Residence at
Touro Law School, presented “The Nazi Obsession with Legalizing the Holocaust”
to a packed room of students and faculty. Professor Reicher addressed up front
the inherent tensions of discussing the Holocaust and law, because the general
conception of the Holocaust is at odds with what most think of when one thinks
of the law. Where law is associated with justice, morality, due process, and
respect, the Holocaust is associated with brutality, injustice, dehumanization,
and hate.

Professor Reicher exploited this tension throughout the talk. He divided his talk between the legislative and judicial agendas of the Nazis, and with each first asked the audience what they thought of when they conceived of legislation or adjudication. With each, Professor Reicher tried to show how the Nazis followed a perverse legal logic, towards ends opposite of those we usually think of when we think of the law.

The legislative pillar of the Nazi’s political agenda exemplified their contempt for the law. When we think of legislation, we usually conceive of parliamentary procedures, regular elections, and the building of political coalitions and compromises. The Nazi regime ruled almost entirely by executive order, with the tacit consent of the Reichstag (parliament). During the 12 years that the Nazis were in power, the Reichstag passed 4 laws, 3 of which were the infamous Nuremberg Laws of 1935. By contrast, in the first 3 years of Nazi rule, over 4,000 executive orders were issued. Of these, approximately 2,000 were directed towards Jews, in spite of the fact that Jews constituted less than 1% of the population of Germany.


The Nazi legislative scheme existed along a spectrum, with quasi-constitutional laws like the Nuremburg laws existing on one side, and laws dealing with minutia such as the prohibition of purchasing milk from a cow owned by a Jew on the other. Laws are always created with an underlying political ideology, and the Nazi’s laws were no different. The entire scheme followed a legislative logic, and the political ideology can be directly traced back to Hitler’s book, Mein Kampf. It was premised on a racial ideology that all of humankind existed in hierarchical groups, with Aryans existing at the top and Jews existing at the bottom.

History for the Nazis was a tale of conflict, with those at the top of the racial hierarchy trying to prevent assimilation of impure blood from those at the bottom. Jews were seen in an inherently contradictory manner: on the one hand, they were impure and inhuman; on the other hand, they were insidiously clever aliens who gradually took over the key levers of a society in order to turn the society Bolshevik. The legal counselors to the Nazis codified this ideology through the incremental segregation and economic destruction of Jews. The legislative scheme was directed towards turning Jews into second-class citizens and divesting them of all forms of property.

The judicial pillar of the Nazi regime was based upon the Führerprinzip, which aggregated all power in the Hitler. The Führerprinzip was the antithesis of the liberal democratic idea of separation of powers. The judicial view of the Nazis was exemplified in the famous Rothenberger Memorandum, wherein Judge Rothenberger suggested three main reforms to the judicial system. These reforms collapsed the independence of the judiciary, by making the Fuhrer the center of judicial concern. These reforms were:

1)     Law must serve the political leadership.

2)     The Fuhrer is the supreme judge.

3)     The judge should judge as the Fuhrer would judge.

Professor Reicher concluded his talk with 5 lessons that he felt legal professionals should learn from the Nazi’s use of law:

1)     Law is inherently neutral. Though we like to think of law in moral terms, it depends completely on who handles the laws.

2)     The constitutional separation of powers is critically important and should be guarded.

3)     The independence of the judiciary is essential for the continuation of a liberal democracy.

4)     Democracy is fragile, and will not survive without constant vigilance.

5)     Learn to take tyrants at their word.

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