The Constitutive Role of Nazi Law: Constructing Complicity in the Third Reich

Lavis, Simon (2023). The Constitutive Role of Nazi Law: Constructing Complicity in the Third Reich. In: Fulbrook, Mary; Willems, Bastiaan; Bird, Stephanie and Rauch, Stefanie eds. Perpetration and Complicity under Nazism and Beyond: Compromised Identities? London: Bloomsbury Publishing, pp. 145–158.



This chapter explores how Nazi law and legal institutions helped to construct the atmosphere of ideological consensus within which individually abhorrent and otherwise inexplicable decisions were taken. In addressing the constitutive aspect of the Nazi legal system, this chapter aims to bring the insights of the ‘voluntarist turn’ in Nazi historiography together with a theoretical understanding of Nazi law that goes beyond its interpretation as ‘legal terror’ and a concern with whether or not it ought to be considered as valid law. To develop its argument it makes a number of related points: (i) that the dominant academic understanding of the Nazi legal system guards against its ideological role being fully explored, and therefore its influence on normative decision making by perpetrators; (ii) that part of acknowledging law’s own historical complicity with the Nazi project involves accepting its constitutive role in the Holocaust; and (iii) that legal norms did operate to help to construct the normative environment within which people acted in the Third Reich. Consequently, it is argued that law inevitably had a substantial role in constructing complicity in the Holocaust and that it is important as researchers to uncover this role in order to understand the relationship between law and violence, past and present.

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