Eliza Parr - History
acquire the weapons of democracy from its arsenal….We’ll take any legal means to
revolutionise the existing situation.” 16 This strategy was adopted by Hitler who, after
having been appointed Chancellor on 30 January 1933, exploited the Reichstag Fire
on 27 February 1933 by persuading President Hindenburg that the threat of a
communist revolution constituted a state of emergency. 17 Consequently, Hindenburg
used Article 48 to pass the Decree for the Protection of the People and State, which
“suspended civil liberties” 18 as well as increasing the power of the state by enabling
the Cabinet to take any necessary measures. 19 Following the Reichstag election on 5
March 1933, in which the Nazis won 44% of the vote and joined with the National
Conservative German People’s Party in order to obtain a majority by democratic
means, 20 Hitler further consolidated his power legally by using President
Hindenburg's state of emergency to convince the Reichstag to pass The Enabling Act
on 23 March 1933. The Enabling Act allowed Hitler to “pass budgets and promulgate
laws, including those altering the constitution, for four years without parliamentary
approval.” 21 Similarly, the Act “made Hitler’s cabinet decrees the supreme law of the
land” 22 and so “removed any doubts the civil service or the judiciary had as to the
legality of the Nazi take-over.” 23 The appointment of Hitler as Führer following the
death of President Hindenburg on 2 August 1934 meant that Germany became a
dictatorship, the Weimar Constitution had been fundamentally undermined, and the
Reichstag had lost all its democratic power. As Michael Burleigh states: “The
Reichstag no longer debated anything, since the only speaker was Hitler; the
uniformed delegates were there to assent with enthusiasm.” 24 The passing of the
Enabling Act was therefore one of the key legal means by which Hitler consolidated
power and is central to the argument that the Nazi consolidation of power constituted
a legal revolution.
Views of Commentators
Against this background, it is arguable that the Nazi consolidation of power was
obtained by legal means. For example, A.J.P Taylor has argued that Hitler
“destroy[ed] legality in Germany by legal means,” 25 which is consistent with the
views of positivist legal theorist H.L.A Hart that “The existence of law is one thing;;
its merit or demerit another.” 26 When applying this principle to the Nazi legal system,
Hart suggests that the legal system was valid despite the immoral nature of its laws
and that no purpose is served by refusing to “recognise evil laws as valid for any
purpose.” 27 The views of these two commentators suggest that the legal means used
16
American-Israeli Cooperative Enterprise. (2013). Joseph Goebbels. [online] Available at:
http://www.jewishvirtuallibrary.org/jsource/Holocaust/goebbels.html [accessed 16 September 2014 at
10.52].
17
Layton, G., 2005. Germany: The Third Reich 1933-45. 3 rd ed. London: Hodder Education, p. 11
18 Evans, R. J., 2006. The Third Reich in Power. London: Penguin Books, p. 11
19
Evans, R. J., 2006. The Third Reich in Power. London: Penguin Books, p. 11-12
20
Evans, R. J., 2006. The Third Reich in Power. London: Penguin Books, p. 12
21
Burleigh, M., 2000. The Third Reich, A New History. 2 nd ed. London: Pan Macmillan, p. 154
22
Miller, R.L., 1995. Nazi Justiz, Law of the Holocaust. Westport, USA: Praeger, p. 45
23
Williamson, D.G., 1982. The Third Reich. 15 th ed. Essex: Longman, p. 11
24
ibid
25
Taylor, A.J.P., 1967. Europe, Grandeur and Decline. 4 th ed. London: Penguin Books, p. 218
26
Hart, H.L.A., 2012. The Concept of Law. 3rd ed. Oxford: Oxford University Press, p. 207
27
ibid
192
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