Eliza Parr - History
make his actions legal and was “fastidious about following legal requirements,” 75 his
real objective was to deceive Germany and ultimately to consolidate power by
constructing a “camouflage of legality.” 76 As a result, Hitler was able to subvert the
legal and political systems to Nazi ideology: it seems likely that at no point during
1933 - 1934 did the majority (or even a significant minority) of the German people
realise that a revolution was taking place through the apparently legal means applied
by the party. The construction of a “civilised veneer” 77 of legality appeared so
genuine that it “inhibit[ed]...and confuse[d]...all but the most clear–sighted opponents
of the Nazi regime” 78 and simply provided a “camouflage of legality.” 79 This is
consistent with the view reached by the Tribunal in the Nuremberg “Judges” trial that
the Nazis engaged in “the prostitution of a judicial system for the accomplishment of
criminal aims....” 80 Moreover, Hart's positivist view that whatever legislation passed
by Hitler was “valid” is arguably too narrow; it is important to consider the fact that
the core legal principles and values of the Weimar Constitution were fundamentally
undermined. F.L. Neumann states that “...if the leader can have political foes killed
without legal trial...then one can no longer speak of law in a specific sense.” 81 This
view is supported by Brian Bix who states that the rules of the Nazi regime were “so
evil and procedurally flawed that the rules of the regime did not create moral
obligations to obey them, in the way such rules do in just regimes.” 82 Therefore, when
considered in light of the values of Western democratic states, it is difficult to
conclude that Hitler's consolidation of power and its associated revolutionary
outcomes, was achieved by legal means.
Conclusion
Whilst it is clear that in consolidating power during 1933-1934 Hitler produced a
revolutionary outcome in that he became supreme leader of Germany and overthrew
the existing legal and political systems, thereby creating an amoral and fascist state, it
is questionable that he did so by legal means. A.J.P. Taylor's analysis that Hitler
“"destroy[ed] legality in Germany by legal means” 83 places too much emphasis on the
claimed constitutional validity of the Enabling Act pursuant to Article 48 of the
Weimar Constitution and makes insufficient reference to the destruction of the
principles of legality. In this respect, the view of F. Neumann is more accurate, that
“German democracy committed suicide and was murdered at one and the same
time.” 84 Not only was the validity of the Enabling Act debatable, 85 but the Nazis'
75
Miller, R.L., 1995. Nazi Justiz, Law of the Holocaust. Westport, USA: Praeger, p. 1
Williamson, D.G., 1982. The Third Reich. 15 th ed. Essex: Longman, p. 8
77
Miller, R.L., 1995. Nazi Justiz, Law of the Holocaust. Westport, USA: Praeger, p. 47
78
Williamson, D.G., 1982. The Third Reich. 15 th ed. Essex: Longman, p. 11
79
Williamson, D.G., 1982. The Third Reich. 15 th ed. Essex: Longman, p. 8
80
Anon, (2000). The Nuremberg Trials: The Ministries Cases. The Nuremberg Trials 1945-1949.
[online] Available at: http://law2.umkc.edu/faculty/projects/ftrials/nuremberg/alstoetter.htm [accessed
9 June 2013 at 17.24]
81
Neumann, F.L., 1937. The Change in the Function of Law in Modern Society. In Scheuerman, W.E.,
The Rule of Law under Siege. London: University of California Press, 1996, p. 134
82
Bix, B., 2009. Jurisprudence: Theory and Context. 5 th ed. London: Thomson Reuters Ltd., p. 6-7,
referring to Dworkin, R., 1987. Legal Theory and the Problem of Sense in Issues in Contemporary
Legal Philosophy. Oxford: Clarendon Press, p. 9-20
83
Taylor, A.J.P., 1967. Europe, Grandeur and Decline. 4 th ed. London: Penguin Books, p. 218
84
Neumann, F.L., 1933. The Decay of German Democracy. In Scheuerman, W.E., The Rule of Law
under Siege. London: University of California Press, 1996, p. 4
85
Williamson, D.G., 1982. The Third Reich. 15 th ed. Essex: Longman, p. 11
76
198
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