Legal Methodology in the German Dictatorships

Author:Jan Schröder
Pages:16-24
SUMMARY

The article compares the legal methodologies in the National Socialist State (NS, 1933–1945) and in the German Democratic Republic (GDR, 1949–1990). Their concept of law differed in a significant way from the preceding periods. Law was no longer regarded as the will of the community but as the will of the dictator (the ‘leader’ or the party) and at the same time as the utterance of the official... (see full summary)

 
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16 JURIDICA INTERNATIONAL 26/2017
Jan Schröder
Professor
University of Tübingen
Legal Methodology
in the German Dictatorships
1. Introduction
As is well known, two dictatorships arose and held sway in Germany in the years between 1933 and 1990.
The rst was the National Socialist (hereinafter ‘NS’) ‘Third Reich’, which ended in 1945. The second was the
German Democratic Republic (GDR) of 1945 or 1949*1 to 1990: With the end of World War II, Germany was
divided into two states. While a parliamentary democracy (the Federal Republic of Germany) developed in
the western one, the GDR arose in the eastern portion as a satellite state of the Soviet Union. In the end, in
1990, the two German states were reunited (more precisely, the socialist GDR was integrated into the demo-
cratic Federal Republic). In this lecture*2 – which refers to my book Rechtswissenschaft in Diktaturen*3,
published in June 2016 as a follow-up to my 2012 work on the history of legal methodology*4 – I would like
to compare the legal methodology of the NS state and the GDR. Therefore, this discussion, as my German
book does, contains a twofold comparison, looking backwards to the empire and the Weimar Republic and
‘sideways’ from one dictatorship to the other. Especially in the eld of politics and history, comparisons of
dictatorships are nothing new. To give an example, I would like to mention Hannah Arendt’s magni cent
book The Origins of Totalitarianism (1951). Speci c comparison of legal methods across di erent dictator-
ships nevertheless did not yet exist.
However, several objections might be raised against a comparison of the NS and GDR states. One might
discuss whether both systems really were dictatorships. In the NS case, there are no doubts about that. The
entire state was a single person, the ‘leader’ Adolf Hitler, who combined the supreme legislative, executive,
and judicial powers in a single body. Things are more complicated with regard to the GDR. There did not
exist a certain person acting as a dictator, only a particular outstanding party, the United Socialist Party
(‘Sozialistische Einheitspartei’) of the GDR. However, there are no reasons not to classify it as a dictator.
Firstly, it dominated the state by dint of holding all the power. That stemmed from the fact that government
o cials held crucial positions in the system while being party leaders at the same time. Furthermore, there
was a constantly guaranteed parliamentary majority for that party as well. Secondly, in line with Marxist-
Leninist theory, the party was the ‘head’ of the ruling ‘working class’, as the arrangement was expressed in
 was the year of the rst GDR Constitution (‘Verfassung der Deutschen Demokratischen Republik vom . Oktober
’).
This article is based on a presentation made at the Autonomy of Law: Dictatorships Compared workshop in Tartu on  Octo-
ber  and edited by Marju Luts-Sootak, with support from the Estonian Research Council (grant IUT-).
Jan Schröder. Rechtswissenschaft in Diktaturen. Die juristische Methodenlehre im NS-Staat und in der DDR. Munich .
Jan Schröder. Recht als Wissenschaft. Geschichte der juristischen Methodenlehre in der Neuzeit. nd edition. Munich .
https://doi.org/10.12697/JI.2017.26.02

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