Legal Methodology in the German Dictatorships

Jan Schröder

Abstract


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 ideology. This antinomy between voluntaristic and ideological principle characterises the legal methodology in both dictatorships. The theories of the sources of law are dominated by the voluntaristic, authoritative element. Therefore, the will of the ‘leader’ or the party, i.e., the statute, is the only real source of law. Customary law is negligible, judge-made law is not approved, a court’s right of inspection doesn’t exist. The ideological principle gains much greater importance in the interpretation of the law. In the NS, the law must be interpreted in accordance with the ‘National Socialist ideology’, in the GDR, which is ‘partially’ socialist, according to the communist ideology. The former voluntaristic ‘subjective-historical’ interpretation is abandoned. Jurisprudence in the NS and GDR also demanded ideological, ‘essential’ concepts, whereas the precedent ‘bourgeois’ theory preferred ‘functional’ concepts according to the specific purpose of a statute. The formation of systems failed in both dictatorships, probably because of the ideological setting.


Keywords


German dictatorships; National Socialism; German Democratic Republic; concept of law; voluntaristic principle; ideological principle; sources of law; statutes; customary law; judge-made law; court’s right to inspection; interpretation of law; ideological interpretation; subjective-historical interpretation; jurisprudence; conceptualization in law; system formation in law.

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DOI: https://doi.org/10.12697/JI.2017.26.02

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Journal DOI: https://doi.org/10.12697/issn1406-1082
ISSN 1406-1082 (printed matter)
ISSN 1406-5509 (online)

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