Preuss - Germanic Law Versus Roman Law in National Socialist Legal Theory
Preuss - Germanic Law Versus Roman Law in National Socialist Legal Theory
Preuss - Germanic Law Versus Roman Law in National Socialist Legal Theory
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" German common law " for the " materialistic " Roman law on which
the present legal order is based.2 This principle has been incorporated in
the " Program of the N.S.D.A.P.," 3 and has furnished the basic text for
the elaboration of a National Socialist theory of law.
The fundamental requirement of legal reform under the Third Reich
is that " a law must be given to the German people which is German
according to its content and is suited to the German nature. Everything
foreign which has been imported in the course of two thousand years of
legal history and has been received under the name of ' Roman law' is
3 Adopted at Munich, February 25, 1920. Point 19 provides: " Wir fordern
Ersatz for das der materialistischen Weltordnung dienende r6mische Recht durch
ein deutsches Gemeinrecht." See Gottfried Feder, Programm der NSDAP und
IoI--o, Aufl.).
4 Helmut Nicolai, Die rassengesetzliche Rechtslehre, 1932 (Nationalsozialistische
Bibliothek, 39 Heft), p. 6.
5 Ibid., p. 23.
6 Ibid., p. 55; also, " Nationalsozialistische Rechtsgestaltung," speech of
Reichsjustizkommissar Dr. Frank at Berlin, January 30, 1934. V6lkischer Beobachter, February 2, 1934269
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between law and race, between law and morality, between law
0 . .Rigid, rational clarity has been purchased at the cost of f
conviction and of the moral idea in law. Law has been disrobed of its
cast down to that of an object. The law of the people has become
law of the jurists. The law no longer served the life of the people,
the people became the subject of inflexible paragraphs. Every tend
of the law in conformity with the laws of life, every contact with
natural data of blood and race (and, thereby, the necessary fusion
morality and law, of legal sentiment and law), were rent apart an
destroyed. The law, which was not derived from the people and wa
adapted to it, became foreign." I
1 Nicolai, op. cit., p. 20. Also, Gerd Riihle in V6lkischer Beobachter, August
1933.
p. 1586.
Professor Hans F. R. Giinther defines " race " as a " Menschengruppe, die sich
durch die ihr eignende Vereinigung leiblicher und seelischer Eigenschaften von jeder
For a scholarly survey of race theories in political thought, see Erich Voeg
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and thanks to its inner gifts, has created the German people o
conglomerate of elements." 1
are capable of " heroic action." 4 The Aryan " race," and esp
its Nordic branch, is alone held to possess the capacity for cre
cultural values.6 The whole of human history is explained in t
of the struggle between culture-building Aryans and the " lower
Civilizations and empires fall when their Aryan or Nordic fou
lower their racial level through intermixture with inferior pe
" In reality, the State is the political constitution and form of the blood
Volk." Schmelzeisen, op. cit., p. 21. Also, Gerstenhauer, op. cit., pp. 105, 1
-'his fact, indeed, permits the not unfounded conclusion that he alone was the
of higher humanity in general, and, therefore, represents the prototype of w
whose luminous brow sprang forth to all times the divine spark of genius. .. ."
Mein Kampf, p. 317. See M. Staemmler, Rassenpflege im v6lkischen Staat, 1933
6 " The Aryan gave up the purity of his blood and thereby lost the p
Paradise which he himself had made. . . . The intermixture of blood and the low
ing of the racial level thereupon conditioned, is the sole cause of the perishing
war may become the source of a later uprising, every need the fertilization of
energy, and from every suppression may come the forces for a new spiritual
-so long as the blood is kept pure." Hitler, Mein Kampf, pp. 324, 359.
Dr. Walter Gross, " Politik und Rassenfrage," speech at the Reichspar
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ism has been carried over into the field of legal history, which is picture
as a long struggle between Recht, which emanates spontaneously from th
Aryan or Nordic Rassenseele, and Gesetz, the law of external might, whic
conception, Nicolai states, " law was innate and was transmitted by blood
As the blood, the inner nature, came from the gods, so also did the l
S . . Law (Recht) is a law of life, and is born with man, that is to say:
every man brings with him social instincts which tell him how he m
impulse, the legal impulse, which points out what is correct or false, wh
its nature. A mixed people cannot produce a true law, since it lacks
unified Weltanschauung and a " pure " and " harmonious " " percept
of life." " The man of pure race decides correctly-artlessly, surely,
instinctively. The mixed person must choose between various possi
bilities. He lacks firm feeling and singleness of conscience. He does n
feel what is good and what is evil ; he must first decide." * The " inb
capacity " of the racially pure man " to feel, to judge, to know wha
right (Recht) and how one must act in order that peace and order m
be preserved in the community, was transmitted to the Nordic mani
his ancestors, by the gods themselves-not as a learned science, not
an externally transmitted wisdom, but through the natural disposit
of the blood. Not everyone, therefore, can know the law, but only
whose race is pure, who has been produced in genuine marriage betw
like beings, and whose family tree is free from alien admixture. L
therefore, can be known, established, proclaimed and announced only
Aryan, Nordic men. Hence, the Nordic man alone is destined to leg
for the reconstruction of the Constitution of the Reich. See his Grundlage
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demonstration.6
possesses the creativeness and the capacity to know and to establish what is law,
and who can participate in the Nordic knowledge of good and evil which is transmitted by heredity. . . . In the professional title ' engineer,' that is, ' discoverer,'
the word ' ingenuus ' has retained the meaning of ' creative,' which, according to the
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minority.' " Jews, Syrians and other Asiatics took over trade and
through their gold; the army was soon, for the greater part, compos
the external might and power of the State now alone held men togeth
laws, to slip through their meshes, and to snap one's fingers at the go
old German law in the fifteenth and sixteenth centuries. This rec
of an alien system was not entirely the product of chance, Nicolai ass
supra, in Mein Kampf, 317 ff., and in Rosenberg, Das Wesensgefiige des Na
sozialismus, pp. 13 ff. " The great majority in Italy," Dr. Frick states, " con
of the descendants of Oriental slaves. The hopelessness of this situation w
background for the Stoic Weltanschauung of the Romans." See the comm
Hermann Killer, in V6lkischer Beobachter, August 16, 1933.
2 Nicolai, Die rassengesetzliche Rechtslehre, p. 7.
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The worst features of the Roman system are found in the pos
of mixed race, and especially of Jews. The Jew lacks the clear
conscience which is the monopoly of the racially pure. He the
of the people and its need for justice. Aliens had, to a great ex
influence upon legislation and jurisprudence. The people lived
any sense of right and thereby, at the same time, lost in increasing m
the consciousness of law and of justice. We stood before a general de
of culture." 3 In the words of the same author, " Heaven ordained a
last hour that our spirits should awaken under the leadership
of our greatest." 4 National Socialism has undertaken to rebuil
foundations of law and " to oppose the devastating results of th
sided rule of reason. It emphasizes the worth of the soul, of f
of common sense, and of trust in God," but recognizes that a
between soul and intelligence alone corresponds to the German
In its task of legal reform it aims to produce a synthesis of th
forces. The new order must express the totality of the Volksg
" Ganzheit." 5
social instinct, it cannot have its source in the will of the State. Law is
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far as the State by intervening can enforce its validity. The vital
root of law, however, reaches down into the secret depths of the
popular conscience and thence supplies it with its inner validity and
affirmation.2
2 " Zur Erneuerung des deutschen Rechts," Deutsche Justiz, Rechtspflege und
Rechtspolitik, November 9, 1933, p. 622.
3 Nicolai, op. cit., p. 32.
4 Schmelzeisen, op. cit., p. 38.
" According to their inner nature, there is no opposition between statute and
customary law. Both are only forms of expression of the law flowing from the
spirit of the people. There exists an opposition only in their external relationship,
in so far as in statute the manifestation of law proceeds from above through the
legislator as the leader of the people, while (in customary law), on the other hand,
it comes from below through the people itself." Ibid., pp. 37, 38.
5 Nicolai, op. cit., p. 33.
On the position of the judiciary in the National Socialist State, see Richard
power, the legal position for which we National-Socialists are contending has not
yet been created. Our struggle does not cease with the modification of Roman law :
it can cease only when Teutonic law has taken the place of Roman law. . . . The
issue of the present struggle is whether the objectivity of the judges is to remain the
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law (Recht) and that all its measures in violation of this law lack obligato
Versailles and the Law for the Protection of the Republic, are not legally
acts are valid as have been recognized by the legitimate National Socialist
Government as being in conformity with the richtiges Recht.4
tion, is the movement which formulates and expresses the German spiri
in all cultural and social fields, including that of the law. Therefore, any
composition of a legal claim which two peoples make to life. For the Roman co
ception that any frontier, any settlement whatever, might have an unchanged dur
tion of centuries, was alien to the German conception. Peoples rise and pass awa
they increase and extend themselves if their vital force is unbroken ; they de
and perish if their moral force does not suffice to maintain their existence and
master the future. The strong, however, has a right as against the weak; he ha
claim that the weak make room for him and yield him land where he can settle
gain for his posterity a place for living. But honourable struggle decides a
strength, and Fate decides whom the victor is, whom the victor must be. There
lies the divine justice which in the end claims the victory for the valiant and forcef
The German piously bows to the decision of Fate if the stronger opponent conqu
him-if, however, the victor treats the honourably defeated foe in a chivalr
manner." Ibid., p. 9g.
4 Ibid., p. 53.
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It is admitted that not all of the legal institutions of the primitive Ger
can be transplanted to the present.2 In practice, this would seem to m
that the " spirit " which is conceived to have dominated ancient G
legal life must be made to pervade the law of the National Socia
which would hardly consist with the National Socialist " aut
tarianism " of the present. " Loyalty to the gods, to the ancesto
one's own kind, to labour for the existence of the generation and
Volk, loyalty before all to the rights, but also to the obligations w
every member of the Volk had to fulfil in the service of the wh
these are the watchwords of Germanic law, and, therefore, of Na
Socialism.4 It would probably be more accurate to say that they ar
expression of qualities with which the ancient German has been r
actively endowed. His portrait, as painted by National Socialist h
bears obvious resemblances to that of Rousseau's " noble savage,"
does as much violence to the original.
during the first year of the present regime.5 The laws providing for
1 An example of the National Socialist tendency to " Aryanize " or " Ger
ize" all that it does not wish to reject as " non-Aryan" or " Jewish" is fo
the following statement: " The Saviour Jesus Christ could never have been
3 " The struggle to-day is directed less against the remains of objective R
law than against the spirit created by century-long preoccupation with the
Recht, December 3, 1933, quoted, ibid., p. 344 Nicolai, op. cit., p. 17.
5 Points 4 and 6 of the " Programme of the N.S.D.A.P." provide that "
one who is a Volksgenosse may be a citizen of the State (Staatsbiirger). On
who is of German blood can be a Volksgenosse, without reference to conf
Therefore, no Jew can be a Volksgenosse. . . . The right to determine the lea
and laws of the State shall belong only to citizens of the State. Therefo
demand that every public office, of whatever kind and whether it be in Reich
or Gemeinde, be filled only by citizens of the State."
See Reichsminister Dr. Frick, " Die Rassenfrage in der deutschen Gesetzge
Deutsche Juristen-Zeitung, January I, 1934, pp. 1-6.
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exclusion of " non-Aryans " from public office I and from the high
Patentanwaltschaft und zur Rechtsanwaltschaft vom 22, April 1933 " (RGBI.
I, 217, ? I).
, " Gesetz gegen die Uberfullung deutscher Schulen und Hochschulen vom 25,
April 1933 " (RGBl. I, 225, ? 4).
See also the " Gesetz fiber Widerruf von Einbiirgerungen und die Aberkennung
der deutschen Staatsangeh6rigkeit " vom 17, Juli 1933 (RGBl. I, 480, ?? I, 2), which
provides for the revocation of all naturalizations effected between November 9,
I918 and January 30, 1933 which are deemed not to be " desirable," and for the
forfeiture of the nationality of German citizens who injure German interests through
their conduct abroad. These provisions have been applied almost exclusively to
Jews.
4 See, for example, the statement of Reichminister Dr. Frick, quoted in the
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p. 622.
On the question of the dissolution of mixed marriages betwe
already caught up to the actuality and significance of race, is not a decisive question.
Race reveals itself as might operating through an order of life, through behaviour,
intention and history-which is disclosed through instinct, vital feeling, evident fact
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