Statutory Lawlessness and Supra-Statutory Law (1946)

(trs. Bonnie Litschewski Paulson and Stanley L. Paulson) By means of two maxims, ‘An order is an order’ and ‘a law is a law’, National Socialism contrived to bind its followers to itself, soldiers and jurists respectively. The former tenet was always restricted in its applicability; soldiers had no obligation to obey orders serving criminal purposes.1 ‘A law is a law’, on the other hand, knew no restriction whatever. It expressed the positivistic legal thinking that, almost unchallenged, held sway over German jurists for many decades. ‘Statutory lawlessness’ was, accordingly, a contradiction in terms, just as ‘supra-statutory law’ was.2 Today, both problems confront legal practice time and time again. Recently, for example, the Süddeutsche Juristen-Zeitung published and commented on a decision of the Wiesbaden Municipal Court handed down in November of 1945, according to which the ‘statutes that declared the property of the Jews to be forfeited to...