Statutory Lawlessness and Supra-Statutory Law (1946)

Extract

(trs. Bonnie Litschewski Paulson and Stanley L. Paulson)

I.

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 the State were in conflict with natural law, and null and void the moment they were enacted’.³