Eliza Parr - History
serious crimes up to and including political assassinations” 47 whilst escaping
punishment and justifying them as being in the “defence of the state.” 48 As stated by
F.L. Neumann, as a result of the Nazi consolidation of power, “German democracy
committed suicide and was murdered at one and the same time.” 49 It is therefore clear
that the dramatic shift from the values of the Weimar constitution to a “gangster
state” 50 in a period of around two years was a revolutionary outcome. The evidence
considered above suggests that this was achieved by legal and democratic means and
could therefore be described as a legal revolution. This view is supported by A.J.P.
Taylor and H.L.A. Hart. 51 However, their views are arguably too narrow and do not
consider Hitler's use of intimidation and violence at key moments in the legal and
democratic process. In addition, it is important to consider the provenance of the
sources: both A.J.P. Taylor and H.L.A Hart were not German and Hart in particular,
as a legal philosopher, does not refer to any historical works and relies upon other
legal philosophers when commenting upon the Nazi legal system. 52 Similarly, they do
not consider the possibility that the key principles of legality (the separation of
powers, the rule of law, non-retroactivity of legislation and the protection of
individual rights) were so fundamentally undermined that Hitler's use of apparently
legal measures was no more than a façade for criminality. These reasons as to why
Hitler's consolidation of power cannot properly be described as a legal revolution are
now considered.
Hitler's Use of Intimidation
An obvious reason why the legality of Hitler's consolidation of power may be
questioned is that violence in the form of pressure and intimidation were used in order
to threaten citizens into supporting the Nazis at the Reichstag election. Similarly, the
Nazis' use of violence to intimidate the members of the Reichstag into passing the
Enabling Act shows that although the Act seemed legitimate, potentially illegal
methods were used to gain the necessary majority for it to be passed. This view is
supported by D.G. Williamson, who states that “the Enabling Law[’s]... constitutional
validity was debatable,” 53 which casts real doubt on the legality of the Nazis'
consolidation of power.
The Undermining of the Separation of Powers
A further reason why the legality of the Nazi consolidation of power may be doubted
is because it undermined fundamental elements of the legal system. In many western
democratic states, the separation of the three bodies of power: the legislature, the
judiciary and the executive, constitutes a sensitive balance or “fundamental
47
Müller, I., 1991. Hitler’s Justice. Harvard, USA: Harvard. Translated from German by Schneider,
D.L., p. 81
48
Müller, I., 1991. Hitler’s Justice. Harvard, USA: Harvard. Translated from German by Schneider,
D.L., p. 81
49
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
50
Anon, 2012. Russia: a gangster state. The Telegraph Online, [online]. 27 February. Available at:
http://www.telegraph.co.uk/news/worldnews/europe/russia/9107811/Russia-a-gangster-state.html
[accessed 20 September 2013 at 14.26]
51
See p. 5-6 above
52
Hart, H.L.A., 2012. The Concept of Law. 3rd ed. Oxford: Oxford University Press, p. 207
53
Williamson, D.G., 1982. The Third Reich. 15 th ed. Essex: Longman, p. 11
195
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