58.3.mullender

Nazi Law and the Concept of Community
Richard Mullender

University of Toronto Law Journal, Volume 58, Number 3, Summer
2008, pp. 377-387 (Article)

Published by University of Toronto Press
DOI: 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

Richard Mullender* NAZI LAW AND THE CONCEPT OF
COMMUNITY†

In The Third Reich in Power: 1933 – 1939, Richard Evans pursues the theme
that the Nazis used law, terror, and propaganda as ‘techniques of governance’
that would serve to Nazify Germany. Evans also provides support for the conclusion
that the Nazis’ claims to give expression to the life of a people’s community
(Volksgemeinschaft) were bogus. For the techniques of governance on which they
relied 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 a
social formation. An enterprise association is highly instrumental and exhibits a
lack of sensitivity to the interests of individuals and particular groups.
Government uses the levers of power at its disposal to pursue an agenda into
which it integrates the law’s addressees. Assuming that Nazi Germany was
an enterprise association, the misgivings concerning the concept of community
expressed 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 accommodate
the interests of all those in the group it is supposed to serve. The Nazis’ attitude toward
ethical community indicates a lack of commitment to law in the narrow sense (as
defined by Nigel Simmonds). But, in inducing patterns of obedience in those over
whom they wielded power, the Nazis had a legal system in the wide sense (defined
by Simmonds).

Key words: people’s community (Volksgemeinschaft)/enterprise association/
human rights/empirical community/ethical community

Law, or what passed for law in Nazi Germany, has been grist to the
mill 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

378 UNIVERSITY OF TORONTO LAW JOURNAL

both the participants in the Hart – Fuller debate discussed Nazi law
when staking out their respective positions.1 Other prominent legal
philosophers have followed their lead (e.g., Ronald Dworkin).2
Analysis of this sort may encourage those who read it to assume
that they have an adequate understanding of the Nazis’ approach to
law and governance. Moreover, any such assumption is likely to be
reinforced by regular examination in the mainstream media of the
Holocaust and the Nazis’ other enormities (e.g., programs of eugenics
in pursuit of ‘racial hygiene’). Lawyers who assume that they have
grasped the essentials of Nazi misrule are likely to learn much from
Richard Evans’ The Third Reich in Power: 1933 – 1939. Evans is reluctant
to engage in moral judgement and identiﬁes his task as the acqui-
sition of ‘understanding.’3 In this he succeeds. He shows how the
Nazis used law, in combination with terror and propaganda, to
advance their political ends: securing themselves in power, preparing
for war, and fostering the ideal of a German people’s community
(Volksgemeinschaft).4
Evans’ exposition is broad in scope. He ranges over the ‘the Police
State’ (embracing, most obviously, the Gestapo and the concentration
camps), the regulation of the German economy, and the sequence of
events that culminated in the outbreak of World War II. He also
examines the topics of religion, culture, and community, and the
Nazis’ pursuit of a ‘racial utopia.’ As his narrative unfolds, Evans
describes events that led Lon Fuller to conclude that the Nazis
showed scant regard for the ‘inner morality of law’ (the ‘indispensa-
ble conditions for the existence of law’).5 Prominent among them is
an account of the Rohm purge, in which legislation retrospectively
¨
converted the murders of Hitler’s leading Brownshirt critic and
some of his followers into ‘lawful’ executions (c. 1). But because
Evans (unlike Fuller) focuses exclusively on Nazi governance, he is
able 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.

NAZI LAW AND THE CONCEPT OF COMMUNITY 379

Third Reich.6 Thus we find him speaking in some detail to an issue
that has been touched on by, inter alios, Dworkin: the use of law by
judges and other public officials to counter or, at least, mitigate the
effects of Nazi brutality.7 Evans notes that (in a limited number of
cases and in the early years of the Nazi regime) judges identified
the 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 rule
and official conduct.8 But by 1938, the Nazis were unwilling even to abide
by 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, when
the trial of Pastor Martin Niemoller, an anti-Semite who was critical of
¨
Hitler, ended in an acquittal, he was (on Hitler’s orders) promptly
arrested and confined to Sachsenhausen (231).10 Other leading Nazis
also exercised power in this way. For example, Heinrich Himmler
declared in 1937 that SS personnel who breached the Criminal Code’s
prohibition on homosexuality would, on their release from prison, be
sent to a concentration camp and there ‘shot while trying to escape’ (532).
While Evans covers ground traversed by legal commentators such as
Hart, Fuller, and Dworkin, he pursues a theme that does not feature in
their writings: the use of law, terror, and propaganda as ‘techniques of
rule’ that would serve to bring about the Nazification of Germany (118,
120– 1).11 In pursuit of this theme, he discusses laws that have not
figured prominently in jurisprudential debate concerning the Nazis.
For example, he examines the Editors’ Law of 1933, which made
editors personally liable for publishing material that was ‘calculated to
weaken the strength of the German Reich’ or ‘the community will of
the German people’ (144). Some newspapers responded to the
Editors’ 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’).


for a number of years by employing the formula ‘there is no truth in the
rumour that . . .’ before detailing the relevant government practice or
policy (142 – 3).12 However, most editors (fearing for their liberty and
perhaps 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’s
minister of propaganda, Joseph Goebbels, could rely on editors to
present, for example, the Nuremburg Laws of 1935 in precisely the
light he wanted.13 Thus newspapers described prohibitions on marriage
between Germans and Jews as stabilizing measures (546). This anodyne
language suited the Nazis very well at a time when they were preparing
to host the 1936 Olympics and wished to downplay their anti-Semitism
(570 – 1).
While using provisions like the Editors’ Law to cow their critics, the
Nazis found support in the resulting homogeneity for the claim that
Germany was a united people’s community. But Evans shows this claim
to be bogus. Rather than using law to reflect practical life in Germany,
the Nazis operated a ‘terror machine’ that undercut ‘community’ as a
practically significant concept (109). This is because public opinion
could not crystallize into the practices, laws, and institutions that are
‘the witness and external deposit’ of a community’s moral life.14
Nonetheless, the Nazis repeatedly invoked the concept of community
when passing laws that directly discriminated against and marginalized
particular groups. Thus the Nazis identified the Law for the
Restoration of the Professional Civil Service (which removed all Jewish
civil servants, including judges, from office) as serving to protect the
German people from ‘community aliens’ (Gemeinschaftsfremde) (14 – 5).
At the centre of the ‘community’ to which the Nazis made appeal
loomed the figure of Hitler. Evans dwells at length on the ‘cult of the
Leader’ that grew up around Hitler (122 et seq.). While exploring this
cult’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 ‘the
united will’ of the people’s community he led (44).15 This, according

12 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’).


to Huber, explained why Hitler’s pronouncements had the force of law
and could override existing legal provisions. The upshot was, as Evans
notes, a retreat from the ideal of the Rechtsstaat and the emergence of
a ‘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 system
in which Hitler’s will was the source of compelling reasons for action
(45).
So, if Nazi Germany was neither a conventional normative state nor a
community, 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 as
offering a variation on the theme that Hitler and his henchmen were a
criminal gang who successfully coerced those who came within their
orbit.16 But this description lacks the ‘analytic rigour’ that Evans identifies
as important in the analysis of Nazi Germany.17 For ‘terror machine’
suggests that the Nazis adopted a systematic approach to the organization
of human conduct, but it does not offer a richly elaborated account of the
system they favoured.
We might make good this shortcoming in Evans by viewing the Third
Reich as a form of enterprise association, as described by Michael
Oakeshott. According to Oakeshott, an enterprise association is highly
instrumental.18 He illustrates this point by reference to the Baconian
understanding of the state as civitas cupiditatis: a corporate enterprise
for the exploitation of the earth’s resources.19 Oakeshott also recognizes
that enterprise association threatens, and may undercut, the disposition
to cultivate and enjoy individuality (which, on his analysis, emerged in
Europe in the late Middle Ages).20 This is because those who participate
in an enterprise association give up some of their distinctiveness and may
constitute, in important respects, a single ‘person.’21 Moreover, while
Oakeshott does not pursue the point in detail, he classifies Nazi
Germany as an enterprise association.22

16 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.


Evans’ text provides ample support for this classification. He tells us
that the Nazis’ ‘overriding purpose’ on coming to power was to ready
Germany for war (so as to advance the racist, aggrandizing agenda
described by Hitler in Mein Kampf; 210). To this end, the Nazis
adopted, among other things, a ‘four-year plan’ that involved ‘unpre-
cedented’ levels of legal intervention in the economy (409).23 The
same agenda found expression in the use of terror and propaganda
to bring about ‘the transformation of the German nation into one
people’ (120).24 Statements such as this merit close attention. They
undercut the Nazis’ claims to be giving expression to the life of a com-
munity whose practical outlook they simply sought to reflect. They also
make it plain that the Nazis, when referring to ‘community,’ were not
talking about a collectivity that reflects critically on the basic terms of
social life; rather, they had in mind serried ranks of obedient National
Socialists, as depicted in, for example, Leni Riefenstahl’s (Nazi-funded
and Cannes award – winning) film Triumph of the Will.25 Moreover, the
Nazis’ regular resort to manipulation (by using propaganda to ‘perme-
ate the person’ without his or her noticing it) supports the conclusion
that their invocations of community were bogus (127).26
Among the many bodies of law discussed by Evans that support the
claim that Nazi Germany was an enterprise association is one that, at
first blush, looks wholly benign. In the late 1930s, ‘a Nazi epidemiologist
. . . established the link between smoking and lung cancer’ (319). This
breakthrough prompted the Nazis to introduce a workplace smoking
ban. Books, pamphlets, and posters accompanying the ban warned of
the dangers of smoking and pointed out repeatedly that Hitler never
put a pipe, cigar, or cigarette to his lips (319). Evans identifies the
smoking ban, the associated propaganda, and other measures in the
Nazi ‘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’).


(319),27 which was to improve the health of the Aryan race so as to
facilitate pursuit of the Nazis’ political objectives. Moreover, the Nazis
adopted other measures intended to advance the health-related and
larger aims of the smoking ban and to sustain the atmosphere of terror
in the Third Reich. For example, the Police Chief in Erfurt ‘admonished
citizens “to remind women they [met] smoking on the streets of their
duty as German wives and mothers”’(522). In other parts of the
country, ‘stormtroopers snatch[ed] cigarettes from the lips of women
whom they saw smoking in public’ (522).
Evans uses these and countless other examples to impress upon his
readers 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 has
relevance to the operations of liberal-democratic legal systems today.
These systems are (among others things) supposed to secure human
rights. In this they exhibit a commitment to the ideals enunciated
in the 1941 Atlantic Charter by Franklin D. Roosevelt and Winston
Churchill,28 including respect for human dignity and the rights that
protect it. But unease concerning the concept of community has
attended the pursuit of these ideals. We see it in the Preamble to
the Universal Declaration of Human Rights (1948), which emphasizes
the ‘fundamental human rights’ and ‘dignity’ of ‘the human person’
and downplays the signiﬁcance of collectivities other than ‘the human
family.’29 Likewise, we see it in John Rawls’s efforts to describe a
model of human association free from strong commitments to com-
munity.30 This is unsurprising. For those who have sought to
advance the agenda of human rights in the post – World War II
context have typically regarded ‘community’ (so closely associated
with Nazism) as a source of danger.31 But if, as Evans indicates,
Nazi invocations of a shared form of life were bogus, then community
may be a concept that has received an unduly harsh press in the last
six decades.
This prompts the question, What precisely is a community? Here, we
might develop some points made earlier. Communities have an empirical
aspect: a collection of (sometimes retrograde) practices, institutions, and

27 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.’


associated dispositions.32 But communities also have an ethical dimension.
Some of those within them reflect on the adequacy of existing practical
arrangements. Moreover, reflection of this sort, on occasion, prompts
those who engage in it to call for reforms that will better accommodate
the interests of relevant individuals and/or groups.33 This means that
we cannot reduce a community to a celebration of ‘the way we do
things around here.’ Instead, we should see it as a context in which indi-
viduals and groups can, and sometimes do, make arguments for benign
reform.34
When we apply these points to Germany between 1933 and 1939, we
find that the Nazis wielded power in ways that did not give expression
to but, rather, undermined community.35 In the pre-war period, some
individuals and groups were ready to criticize the Nazis for the way in
which they exercised power. This is a topic to which Evans’ discussion
of relations between the Nazis and the Catholic Church is relevant. In
July 1933, the Papacy entered into a Concordat with the Nazis: in
return for an assurance from the Nazis that they would protect Catholic
lay institutions, the Church made a commitment to abstain from involve-
ment in politics. Nonetheless, the Catholic Church in Germany objected
to a wide range of Nazi policies, including forcible sterilization under the
Law for the Prevention of Hereditarily Diseased Offspring (507, 515). But

32 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.


activity of this sort was no match for the Nazi terror machine, as Evans
makes 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 bring
charges 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 a
Catholic ‘sore on the healthy racial body’ (245). Goebbels followed this
up by denouncing Catholic ‘corrupters and poisoners of the people’s
soul’ on national radio (245).
Little wonder, then, that the voices of dissent became fewer and
weaker (213). For example, only a few clerics (and other critics)
spoke out (in muted terms) against the Nazi-orchestrated anti-Jewish
pogrom of 9 – 10 November 1938, the Reichskristallnacht (587 –9). By
then, 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 places
emphasis on the statement for which Pastor Martin Niemoller is best
known:
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 they
came 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 the
most fundamental interests of its members, may afford a means by
which 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


assumption that has informed thinking on human rights since World War
II. This is the assumption that the Nazis demonstrated, with brutal clarity,
the practical threat constituted by actually existing communities. We
would be nearer the mark if we identified Nazi Germany as a gruesome
enterprise association.39 The evidence surveyed by Evans certainly sup-
ports this conclusion.
While the Nazis’ claims to give expression to the life of a community
were bogus, it is clear that they used the instrumentality of law, in a
variety of forms (e.g., statutes and decrees), to govern their practical
affairs. This prompts the question, so often asked since May 1945, of
what significance we should attach to the Nazis’ resort to law. A distinction
drawn by Nigel Simmonds in Law as a Moral Idea provides a basis on which
to address this question. Simmonds distinguishes between ‘wide’ and
‘narrow’ understandings of law.40 Law in the wide sense coordinates
human behaviour. This would be the case where, for example, patterns
of obedience (among the law’s addressees) emerge in response to
orders 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 the
pursuit of justice or of the common good. Where this is the case, it will
(on Simmonds’ account) have no necessary connection with morality.42
By contrast, law in the ‘narrow’ sense coordinates behaviour in ways
that 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 categorize
that 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.


the behaviour of those subjected to it (and thus afforded the Nazis a
means by which to pursue their purposes). However, this system of gov-
ernance failed adequately to serve the interests of those whose conduct
and environment it ordered, for it constituted, among other things, a
standing threat to liberty. Hence, if we assume (as Simmonds does)
that an ‘inviolable sphere’ of liberty is a requirement of justice, then
Nazi law was, for this and many other reasons, unjust.44 Moreover, even
those Nazi laws that were promulgated, clear, prospective, and intended
to produce benign effects (e.g., the workplace smoking ban) cannot be
described, with any strong sense of conviction, as just, for they ultimately
served the purposes of an enterprise association that had no interest in
meeting the moral requirements described by Simmonds. Thus we can
conclude that, while the Nazis had law in the wide sense, they abandoned
the moral ideals internal to law in the narrow sense.45 Likewise, they aban-
doned the ethical commitments internal to a community worthy of the
name.

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’).

58.3.mullender

Recomendados

Recomendados

Más contenido relacionado

La actualidad más candente

La actualidad más candente (20)

Destacado

Destacado (11)

Similar a 58.3.mullender

Similar a 58.3.mullender (10)

58.3.mullender