The Significance of Common Law Systems in the World Wars and Now
Common law vs. Roman law in historical regimes and the modern West.
Dictatorial Justice
The National Socialist German Workers Party rose to power in Germany in the early 1930s though, of course, its true beginnings can be traced much further back. Nevertheless, one of the key principles of modern Nazism was the establishment of a new legal system wherein Roman law was to be replaced with German common law. This demanded transition was outlined in a 25-Point Program, which was announced by Adolf Hitler in Munich on February 24, 1920. It is considered the principal document of the Nazi Party. Today I aim to examine just one of the 25 points articulated in the document, focusing on the specific differences within legal systems.
In order to fully understand the significance of this demand, it is important to first clarify the definitions and distinct characteristics of both legal systems. This will provide insight into the underlying ideology and values of the Nazi Party and the factors that influenced their call for this change.
“Materialist”
It is important to clarify the proper definition of the word “materialist” as it is being used in here. Materialism in a philosophical, political, and Marxist sense is the focus on tangible, physical components of reality such as a citizens standard of living and everyday experiences. It is the opposite of a metaphysical perspective, which is more aligned with a classical liberal or “libertarian” point of view in which notions of ideology are placed before the corporal well-being of individuals.
“Roman law” // “The Napoleonic Code”
Roman law is a civil law system, meaning that it is based on a comprehensive set of written laws and codes. It is characterized by its emphasis on codification, uniformity, and legal certainty. In a civil law system, judges are expected to apply the law as written without personal interpretations or creating new precedents that then serve as laws themselves.
The term "Roman law" is often used interchangeably with the Napoleonic Code, though not exactly identical, is due to the overwhelming influence of Justinian’s 6th century ‘Corpus Juris Civilis,’ - the hallmark of the Roman civil law system. This influence can be seen in the structure and principles of the Code, which shares the same core characteristics and values.
“German common law”
A common law system is based on the decisions and precedents set by judges in previous cases, rather than on written laws. Also known as medieval Germanic law, German common law is based on Germanic customary law developed in the early medieval period. It was shaped by the customs and traditions of the Germanic tribes and influenced the laws in those places where they settled, such as England.
It is worth noting that English is a Teutonic language; the Anglo-Saxons were, and still are, a Teutonic peoples with a corresponding system and understanding of “justice.” While I hold a deep adoration and appreciation of the English language, the realities of its origin further prove the undeniable connection between England, the United States, and Germany.
Logic in Law
In Roman law, judges are expected to be impartial and objective, applying the law as written without introducing personal bias. Their role is to interpret and apply the law, rather than make new laws. In German common law, judges play a more active role in shaping the law through their decisions. They have the power to overturn precedents and create new legal principles. The former system uses a deductive approach, the latter uses an inductive approach.
Furthermore, Roman law is based on a strict hierarchy of laws, with written laws taking precedence over customs and traditions.
“German common law” as an expression was employed, and further described, by 19th‐century German legal scholars who desired to differentiate Germanic customary law from the dominant Roman law influence. In the desired system of these scholars, customs and traditions are given equal weight to written laws, creating a more fluid and adaptable system. In demanding the replacement of Roman law with German common law, the Nazi Party was calling for a shift towards a more traditional, nationalistic, and “organic” legal system. This meant a departure from the highly structured, universal, and rationalized approach of Roman law, which the Party viewed as too focused on material concerns rather than spiritual or cultural values, towards what they considered a more flexible, intuitive, and culturally embedded legal system. This was a reflection of the Nazi Party's emphasis on nationalism and cultural superiority.
This principle, along with the others outlined in the 25-Point Program, contributed to the establishment of a dictatorial justice system that served the interests of the Nazi Party and its leaders, rather than the principles of blind justice.
Questions
Why is this relevant today, specifically for Western citizens? What is the relationship to English common law, which is still practiced and idealized in the United States? Given that the United States at the time of World War II was still impartial and friendly to the German legal system, what was the true degree of opposition between two political systems at the time? To what extent did the much-talked-about Treaty of Versailles actually have to do with the rise of the Nazi party?
To answer just a few of these questions, it is important to recognize that the demand for a German common law system was rooted in the Nazi Party's desire for control and dominance. By rejecting the principles of Roman law, the Nazis were able to establish their own idea of justice and manipulate it to serve their own interests. This led to the establishment of a dictatorial justice system that was used to persecute and oppress certain groups within society, such as a subset of the Jewish population, homosexuals, and political opponents.
The relevance of this demand and its subsequent implementation can also be viewed within the larger context of the rise of fascism and dictatorship in Europe during the 1930s and 1940s. The Nazis were not the only group advocating for a departure from traditional legal systems and the establishment of a new, "organic" form of justice. Similar demands were made in Italy under the regime of Benito Mussolini and in Spain, under the rule of General Francisco Franco. These dictatorships also aimed to establish their own versions of justice, which served their interests at the expense of individual rights and freedoms.
As for the Treaty of Versailles, sentiments offered by German political figures such as Ernst Junker, which claimed that the apparent loss of the First World War was in reality an opportunity to further the agenda of the Reich, should not be ignored. In fact, such ideas should be deeply examined in order to resist their manifestation in current political movements.
Connections to Current Ideas of Justice in the West
In light of the Nazi Party's rejection of Roman law, there was a heightened interest in German common law among some Anglo-American jurists during the 1930s. This was due to the belief that German common law was more in line with traditional English common law principles, as opposed to Roman law which was seen as foreign and undesirable.
Today, the relevance of this demand can be seen in discussions surrounding nationalism and the importance placed on cultural values in legal systems. The rise of populist and nationalist movements across the Western world showcases the dangers of prioritizing nationalistic ideals and cultural superiority in legal systems, which allow the law to be wielded as a political weapon, rather than pursuing equal treatment under the law for all.
The true degree of opposition between the German and American legal systems at the time is difficult to determine, as it was heavily influenced by political and ideological agendas. However, it is clear that the Nazi Party's demand for a German common law system was fueled by their desire to establish a dictatorial regime with control over the legal system, and that such a system is closely mirrored by that currently instantiated in the United States. In this regard, it is worth examining the migration of German political figures in the Post-War period to and from America, as well as their impact on American society and the legal system. In doing so, it is possible to draw comparisons between the German and American legal systems, and in particular to identify the extent to which the American legal system has been influenced by the German legal system, as well as by the political and ideological agendas of the German political elite.
American National Sovereignty
The American legal system, as it currently exists, is the product of a long history of development, and has been shaped by the political and ideological agendas of many international conflicts, policies, and influences. As such, it is not appropriate to assume that the current American legal system is the only viable one, or that it qualifies as fundamentally “American” at all; much like the German legal system it operates not so much as a system of laws (as would a Napoleonic system), but as a system of institutions which themselves determine the laws, changing them over time to adapt them to suit their interests.
Based on a highly developed system of development, the Supreme Court, the Congress, the President, the Federal courts, the states’ courts, lobbying firms and their correspondents corporate interests, the state legislatures, and even politically motivated influences in the media, are all interrelated. It is their interaction determines the laws which are passed by Congress and signed by the President.
The judiciary is supposed to be an independent, non-party-linked institution which discerns legally. However, history has demonstrated that common law judiciaries have often proven themselves not impartial arbiters of justice, but agents of those who possess the financial, human and intellectual resources to sway legal judgements. This has allowed covert dispositions of justice to take place, particularly in matters of national security and exceptional circumstances. The power of vacuity of clarity in ambiguous legal language is harnessed by those who have the resources to engage with, and generate, such vacuity. The 25-Point Program serves as an obvious example of this, but with historical considerations in mind, it may be worth asking the collective question of whether the American system is in any way preferable, and if so, how?
-the Shultz Report by M. Shultz
These are erudite observations!