Nazi legal theory shifted from subjective intent to racist essentialism

Evidence

In analyzing criminal law in Nazi Germany, Kirchheimer distinguished between two phases in the development of legal theory after 1933: the authoritarian and the racist. In the former, which lasted only briefly after the seizure of power, Roland Freisler’s volitional notion of law prevailed, stressing the subjective motivations of defendants rather than their objective acts. It was soon superseded by the antinormative, antigeneralist “concrete” legal theory of the so-called Kiel School of “phenomenological” law.” Here the judge’s intuition of the “essential” nature of the defendant replaced the judgment of his actual actions. Crimes committed by omission were extended; the “social feelings of the people” as revealed through the pronouncements of their leaders and the rulings of the judicial bureaucracy influenced judicial decisions, even to the point of retroactive legislation. Departmentalization of jurisdictions - the SS, the labor service, the party, for example, all had separate legal hierarchies - replaced the unified system of criminal law that had prevailed before 1933. In short, the judiciary had been transformed into a dependent administrative bureaucracy increasingly responsive to the ideological demands of the state. — Martin Jay, The Dialectical Imagination, 498

Categorization

• DEFINE: Maps the distinction between Freisler’s ‘volitional’ law and the Kiel School’s ‘concrete’ law — two distinct Nazi legal-theory phases.
• XREF: connects to: Totalitarian theory derived authority from racial right rather than universal law — Martin Jay, The Dialectical Imagination: A History…, 425; Nazi ideology subordinated the state to the racial folk community — Hannah Arendt, The Origins of Totalitarianism, 2780; Nazi decrees stripped Jewish academics of teaching rights step by step — Rolf Wiggershaus, The Frankfurt School: Its History,…, 634

Broader Connections

• Nazi ideology subordinated the state to the racial folk community #expands (0.82) — Hannah Arendt, The Origins of Totalitarianism, 2780