Erich Jung on the national socialist theory of sources of law

Abstract

The article constitutes the first attempt to study the Nazi totalitarian approach to one of the most essential problems of the theory of law, namely, the sources of law. This problem is examined on the example of “A doctrine on sources of law and Jewry” written by Erich Jung, one of the most notable German legal theorists who supported the Nazi regime. This article examines Jung’s views on judicial law enforcement, justice, positive law, and customs as sources of law. The article also analyzes Jung’s critique of the historical school of law, theories of natural law, positivistic understanding of law, the school of free judicial discretion, common law. The author concludes that Jung and other German lawyers of the Third Reich created a legal newspeak aimed at legalizing the key ideological theses of the Nazism, in particular the idea of people’s community (Volksgemeischaft) understood in racial terms, and at justification of interests of this community as a supreme source of law. Nazi antagonism towards positivist understanding of law is determined by the fact that positivism deideologizes law, particularly in its interpretation by Kelsen. The theory of natural law is formally the closest one to the Nazi understanding of sources of law. Both in natural and Nazi understanding of law the basic a priori principles which cannot be changed by lawmakers are considered to be primary sources of law. However, the fundamental difference is that within the natural law these principles focus on humanistic basics of human and civil rights and freedoms, whereas within the Nazi understanding of law they focus on the interests of Volksgemeinschaft based on a race. The author also points out the positive aspects of Jung’s views on the sources of law. They include the apologetics of independence of the judicial power and freedom of judicial discretion. However, in Third Reich’s law enforcement practice the freedom of judicial discretion meant the freedom for punishment of the regime opponent, including the usage of criminal law by analogy.

Keywords:

sources of law, historical school of law, judicial discretion, natural law, justice, lawmaking, positivism