From Rule of Law to Rule of Man: German Jurists Encounter the “Gap,” 1794-1949

Katharina Isabel Schmidt, History

Date: 
Wed, 11/15/2017 - 12:00pm to 1:15pm
Location: 
LAPA Conference Room, 348 Wallace Hall
Audience: 
Graduate Students

LEGS, or "Law-Engaged Graduate Students," meets during the academic year to discuss a work in progress by one of our Graduate Associates. Academic papers, dissertation proposals, and dissertation chapters have been presented at these meetings, to an audience of fellow graduate students.

Lunch served: RSVP here

Abstract"Why did German administrative elites fail to resist National Socialism? Contemporary answers to this question focus on matters of self-interest and social structure. Such explanations, however, fail to account for Weimar bureaucrats’ professional identity; most of them had, after all, been trained as jurists. Even more so, they had been inculcated with positivistic legal science. We must therefore ask more specifically: why did German administrative elites, in 1933, tolerate National Socialism’s foundational attack on legal positivism? In my dissertation, I argue that positivistic legal science, in the Third Reich, was not simply done away with. Instead, it came to be replaced by an alternative intellectual tradition Weimar bureaucrats would have been intimately familiar with. National Socialism’s oft-proclaimed “break with the past,” from the perspective of law, consequently did not seem like much of a break at all. The alternative tradition that resurfaced rejected the “rule of law” as both Enlightenment ideal and cornerstone of liberal-legal positivism. By way of alternative, its adherents turned to the “rule of man.” Whenever there were “gaps” in the law—and the closer these renegade jurists looked the more “gaps they found—executive fiat was to take precedence over abstract-general rules. It is the history of this alternative intellectual tradition I want to tell. My story begins in early modern Prussia when jurists first discovered “gaps” in the law as part of their ambitious codification projects. While the “gap”-problem, over the course of the nineteenth century, served as a source of both anxiety and exhilaration, fin-de-siècle German jurists started leaning more proactively towards the kind situational and personalized decision-making associated with the “rule of man.” It was their familiarity with these alternative strands of jurisprudential thought that left German administrative elites defenseless against National Socialism.”

Katharina Isabel Schmidt

Katharina Isabel Schmidt is a PhD candidate in History at Princeton and a JSD candidate in Law at the Yale Law School. She holds previous degrees in law from the University of Cologne, University College London, the University of Oxford, and Yale Law School.