JUSTICE - No. 66

53 Spring 2021 n the early 1930s, the young Austrian reporter Peter Drucker (1909-2005), who would later become famous as a writer on business management in the United States, heard a Nazi politician proclaim: “We don’t want higher bread prices. We don’t want lower bread prices. We don’t want bread prices to remain the same . . . We want National Socialist bread prices!” This nameless Nazi’s speech offers a crucial insight into the politics of the late Weimar Republic, and probably the politics of most other times and places. It doesn’t matter what the rational merits or demerits of the policy might be. It matters that we make the policy. Tucked away in the Nazi party’s program was the seemingly rather odd Point 19: “We demand the replacement of Roman law, which serves a materialistic world order, with German common law.” This point alluded to a long-standing argument. Over centuries, many scholars and legislators had organized German law according to the intellectual concepts and categories of Justinian’s codification of Roman law – an effort that had culminated at the end of the 19th century in the production of sophisticated German legal codes. Codification was a project of the Enlightenment: Romanized and codified law was to be clear, rational, modern, and just, and enable the rendering of precise and definitive answers to legal questions. The predictability and rationality of Germany’s legal order was policed by a provision in the criminal code derived from the biblical injunction (in Luther’s bible) “ Du soll st das Recht nicht beugen ” – “Thou shalt not bend the law” – and so “bending the law” became an offense a judge or other official could commit if a verdict demonstrably deviated from the requirements of the code. But there was a different way to think about law. In early 19th century Germany, the“historical school”had arisen as a reaction against this rationalization and codification. The “historical school” believed that law bubbled up organically from the people — just like language. Furthermore, it believed that no foreign law could serve Germans, just as Germans should not speak Latin or French. Law was not supposed to be rational or predictable. As Drucker’s Nazi politician might have put it, it should be made by us . The Nazis were heirs to this way of thinking. This romantic, irrational vision of law did not necessarily have to stand on the political right. But it was very likely to stand in opposition to the state and the existing legal order. A movement arose in pre-1914 Germany called the “Free Law School,”prominently represented by a young legal scholar and historian named Hermann Kantorowicz (1877-1940). The Free Law School was a romantic and rebellious reaction advocating that judges should be free to make decisions that seemed right to them, and not just follow what the formal code required. This was a liberal and left wing movement against the mildly authoritarian imperial German state. After 1918, when Germany became a democracy with a constitution drafted by liberal law professors, the argument reversed, although the logic remained the same. On one side, there was the state and its Criminal Code, Civil Code, and above all its Constitution. On the other side, there were opponents of the state, now arguing for freer interpretations of positive law. Those advocates of freer interpretation now came from the right. Hermann Kantorowicz shifted to a position of strict constructionism, or what we call legal positivism. In the Weimar Republic, the democrats were mostly legal positivists. This was not the case on the right. Flip through the pages of the very right-wing Deutsche Richterzeitung and you will find articles with titles such as “Judicial Correction of Obsolete Laws” (1930) or “Does Supra- Legal Equal Illegal?” (1932), in which a judge argued that “what is legal in the individual case” should be derived from the “generally valid legal order that is “Thou Shalt Not Bend the Law”: Legal Irrationality, Political Legitimacy, and the Nazis I BenjaminCarter Hett