Eliza Parr - History
doctrine” 54 which should be maintained if a state is to remain objective, just and
impartial. Once the “intermingling of the Nazi party with the state” 55 had been
completed and Hitler vested all three sets of powers in himself as legislative leader
and “Supreme Judge” 56 of Germany, the key principles of legality including the
separation of powers were undermined, with the consequence that the entire legal
system was subverted. This is shown by the fact that “the SS police [began]
increasingly to interfere in the judicial process itself [by] ignoring verdicts...or
intervening to have the verdicts changed.” 57 As a result, Germany became a police
state whose legal system was twisted and perverted as the Nazis “emptied legal ritual
of meaning” 58 but kept the skeleton of the Weimar Constitution the same.
The Use of Retroactive Legislation
Hitler’s use of retroactive legislation, both by making his own past actions legal and
by making previously legal actions of citizens illegal, was another way in which the
principles of legality were so undermined that it may be doubted whether the Nazi
consolidation of power can be described as a legal revolution. For example, the Law
Concerning Measures for the Defence of the State was passed on 3 July 1934 59
“whereby Hitler legalized dozens of murders he had ordered...during the ‘Night of the
Long Knives’” 60 , when Hitler and the SS arrested and shot Ernst Röhm and other SA
leaders, as well as 400 other SA members, who were perceived to be a threat to
Hitler’s grip on power. 61 Similarly, a decree passed in 1933 permitted capital
punishment for various acts even though the acts had been legal at that time. 62 The
passing of these decrees was clearly inconsistent with the Weimar Constitution which
states that “An action can only be punished if the action has been described as
punishable by law, before the action was undertaken” 63 as well as with the established
Western democratic legal principle, nulla poena sine lege 64 (no punishment without
law). Franz L. Neumann, a German Law Professor who fled Nazi Germany in the
1930s, writing in 1937 stated in relation to retroactive Nazi laws that “Retroaction is
the most evil assault which the law can commit....Retroaction deprives the law of its
real legal character. A retroactive law is no law at all.” 65 As is the case with I. Müller,
F.L. Neumann's legal background and German nationality suggest that he might be a
more reliable legal commentator than some historians, such as D.G. Williamson who,
54
Wilson, C.H., 1937. The Separation of Powers under Democracy and Fascism. Political Science
Quarterly, [online]. 52 (4), Available at http://www.jstor.org/stable/2143970 [accessed 11 June 2013],
p. 482
55
Miller, R.L., 1995. Nazi Justiz, Law of the Holocaust. Westport, USA: Praeger, p. 54
56
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]
57
Noakes, J., & Pridham, G., 1984. Nazism, Volume II, 1919 – 1945. 9 th ed. Exeter: Exeter University
Press, p. 279
58
Miller, R.L., 1995. Nazi Justiz, Law of the Holocaust. Westport, USA: Praeger, p. 2
59
ibid
60
ibid
61
Williamson, D.G., 1982. The Third Reich. 15 th ed. Essex: Longman, p. 18
62
Miller, R.L., 1995. Nazi Justiz, Law of the Holocaust. Westport, USA: Praeger, p. 51
63
Anon, (2001) The Weimar Constitution. (HIS,P) PSM Data. [online]. Available at:
http://www.zum.de/psm/weimar/weimar_vve.php [accessed 9 June 2013 at 16.43], Article 116
64
Burke, J., 1976. Osbourn's Concise Law Dictionary. 6 th ed. London: Sweet & Maxwell, p. 237
65
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. 113
196
10