The analysis of the development, meaning and manipulation of law in the Third Reich began in Germany around the 1960’s.  At that time, law historians concentrated on the deformation and misuse of legal norms and fundamentals though the judiciary, administration, NS politics and the onset of a world war.  An academic historical perspective as a literary history of the academic version of events, the dogmatic infiltration and systemization of law was first drawn to the center stage in the 1980’s.  The subject was made topical both by the Hamburger Criminal lawyer Ingo Müller, who published the bestseller ‘Terrible Lawyers’ (check the direct English translation of these titles, if they exist) and the legal historian, Bernd Rüther, author of, ‘Entartetes Recht. Rechtslehren und Kronjuristen im Dritten Reich’.  In the foreground of both of these works are the emotionalization and politicization of theoretical thought about State and society, as well as the mixing-up of law and National Socialist ideology.

The meaning of the ‘thousand year Reich’, in an international context, and the role which German public law and their subsequent institutions had to play, were included at a relatively late stage. This is closely linked to the fact that the academic history of international law and public international law are relatively young areas of research within legal history. Added to that is the fact that for decades the study of Germany public international law concentrated on practical questions of international law. Theoretical analyses, debates about foundational topics or historical reflections remained outside of the academic sphere. Public international law as a subject or discipline, quite simply, was not in existence.

Under these conditions, the study of public law under National Socialism was considered unharmed. Hardly any public lawyers were to be found within the known group of ‘terrible lawyers’. Public lawyers worth mentioning include Helmuth James Graf Moltke or Bertold Schenk Graf Stauffenberg – the brother of Hitler’s assassins – who often protested and, ultimately, paid with their lives. Finally, historical studies repeatedly affirmed that the National Socialist regime would have had no interest in a National Socialist public law. After the ‘Machtergreifung’ (seizure of power) in 1933, the Nazis sought predominantly continuity in external political affairs. Later, after the outbreak of World War II, there was little concern for the then valid international law.

In the early days, these findings were tested and widely contradicted in various projects and studies. Since 1997, the Max Planck Society has occupied itself, on a massive scale, with its historical predecessor, the Kaiser Wilhelm Society, founded in 1911.  The academic forethought and participation of individual researchers and institutions is not being examined in thematic rather than broad-streak studies of the Institute. One can demonstrate, for example, how under National Socialist politics the most widely-differing scientific and humanities institutions and political bodies were modified, replaced or even deliberately hindered. This also included academic staff from the Kaiser Wilhelm Institute for Comparative Public Law and International Law, the first jurist institute within the renowned Kaiser Wilhelm Society, founded in 1925 in Berlin.   A project has just been completed by the European University Institute of Florence which focuses on the conflict between Carl Schmitts’ ‘Grossraumtheorie’ (spheres of influence) with European concepts and the National Socialist and Fascist mentalities of the time.   Finally, the Frankfurt Max Planck Institute for Legal History has recently completed research into the theory and study of German international law in juxtaposition with European and International Law from 1870 to 1945.

In contribution to the Ascona Conference on Manipulation in the Totalitarian Ideologies of the 20th Century, I would like to focus on how German lawyers agitated during the Third Reich by their use of language. In particular, how they valued the National Socialist external affairs or attempted to develop a National Socialist public law teaching and what National Socialist public law order they were suggesting. Public law historians attempting to analyse this period of German history linguistically fall into three groups:
(I) The ‘Universalists’: International lawyers who maintain that the valid public law is of universal validity,
(II) The ‘Nationalists’: International lawyers who attempt to find a regime of international law which reflects a National Socialist assimilated nation and people, and
(III) The ‘Völkisch’ lawyers: National Socialist jurists who strive to find an international law order along nationalistic/racist lines under German leadership.
Numerous additions to international law remained vague, sometimes questionable and often curious. Two aspects of German international law remained characteristic from 1933 to 1945: The subject became increasingly politicized, which threatened the character of the study of public law at its very foundations. And there was a dominating insecurity about the methodological foundations. The proclaimed völkisch ‘law of nations’ was a juristically useless and empty propaganda formula which was internationally unacceptable.  From a language perspective, the academic terminologically led debate surrounding National Socialist public law was a battle for position and influence as well as a race to provide servitude to the Party and show loyalty to the Party line.  In this context, international lawyers assimilated their language, without leaving the foundations of the valid international law.  Their texts sound aggressively and are spiked with linguistic eccentricities and addresses of loyalty.  This course bore increasingly into the defensive. At the very latest, the national-racist thought of the National Socialist jurists dominated at the outbreak of war, basking in the exultation of the blitzkrieg. They strove, in a world-ordering manner, for an ideological and linguistic consolidation of the current international law order.