Kiel School

From Infogalactic: the planetary knowledge core
Jump to: navigation, search

The Kiel School is the name given to a group of National Socialist legal scholars who worked at the University of Kiel during the National Socialist era.

At Kiel University, which in National Socialist parlance was called the "borderland University of the Nordic region of Kiel," an above-average number of Jewish and politically disagreeable professors had to leave their posts after the NSDAP seizure of power. Without creating new professorships, the targeted replacement of chairs with young legal scholars who conformed to the system now offered the opportunity to create a kind of National Socialist model faculty ("Shock Troop Faculty"), which was to serve the Reich idea of "legal renewal".

Members and emergence of the Kiel School

The necessary handhold for the intended replacement of the chairs of the Kiel Faculty of Law with National Socialists was provided by the Law for the Restoration of the Professional Civil Service of April 7, 1933, as well as the "Law on the Dismissal and Transfer of University Teachers on the Occasion of the Reconstruction of the German Higher Education System" of January 31, 1935. These laws made it possible to dismiss professors for racial as well as for political reasons.[1]

The following professors were recalled or retired early due to the above-mentioned laws — because of Jewish descent and/or democratic or communist minded or pacifist or against National Socialism — or left Kiel due to external and internal pressure — partly also emanating from the Kiel student body and colleagues:[2]

Among the newly appointed to the chairs were:

Karl August Eckhardt himself taught at the University of Kiel only for a short time (from 1933 to March 21, 1934). Nevertheless, with the help of his ministerial office, he exercised an overriding influence on the staffing and substantive positions of the Kiel School.[3] As the main advisor to the Higher Education Department of the Ministry of Science for the subjects of law, state, politics, economics and history, he ensured from Berlin that Hans von Hentig was replaced by Friedrich Schaffstein. Eckhardt was editor of the journal Deutsche Rechtswissenschaft, newly founded in 1936 for the purpose of "legal renewal," which served as a house organ for the dissemination of the ideas of the Kiel School.[4]

As a result of the personnel policy measures, the average age of professors working at the Kiel Faculty of Law decreased from 53 in 1933 to just under 35 in 1935.[5]

Also connected with the Kiel School was the Lecturers' Academy organized by Karl August Eckhardt at the Kitzeberg Camp. At this communal camp on the Bay of Kiel, National Socialist jurists came together to lecture on the völkisch legal renewal. The lectures given at the Kitzeberg camp were published a year later in the first volume of the journal Deutsche Rechtswissenschaft. In addition to the Kiel legal scholars the camp was also visited by Heinrich Lange, Hans Thieme, Hans Würdinger, Theodor Maunz, Heinrich Henkel and Reinhard Höhn.

One of the participants of the Kitzeberg camp — Franz Wieacker — summarized the atmosphere of the event as follows:

Hikes, marches, early morning sports, and the smallest events of camp life created the relaxation and comradely relationship in which agreement in thought deepens into a fighting working community.[6]

Doctrine

Although the Kiel School was not completely homogeneous in terms of content, its members made greater efforts than elsewhere to anchor National Socialist doctrine, völkisch thinking and racial ideology in law. At least in terms of their self-image, their goal was not merely to revise existing jurisprudence in the National Socialist sense, but to establish an entirely new jurisprudence. To this end, it was necessary, in their view, to rethink all basic concepts of law. Abstract and, in their view, empty of content ("bloodless") as well as "liberalistic" or "rationalistic" concepts such as "property," "subjective law," or "legal property" were to be replaced by new constructions. This self-conception of the Kiel School was summarized as follows in the preface to the collective work Grundfragen der neuen Rechtswissenschaft ("Basic Questions of the New Legal Science"), written by Karl Larenz:

It is the common conviction of the contributors to the volume that German jurisprudence stands at a turning point in its development, that it has to begin anew, but that it is also called to lead the way in the struggle of our time for the kindred German legal thought that is both 'concrete' and 'holistic'.[7]

General and methodology

The völkische legal thinking of the Kiel School was characterized in particular by a rejection of rational methods of interpretation. To this end, Larenz developed his doctrine of "concretely general" concepts in deliberate demarcation from the "abstractly general concepts" of the traditional legal doctrine and, to this end, drew primarily on the logic of Georg Wilhelm Friedrich Hegel. In a very similar way, Georg Dahm and Friedrich Schaffstein demanded the renunciation of clear conceptual delimitations and their replacement by a "holistic and at the same time concrete" view of essence. In a conscious departure from traditional logic — accepting contradictions on the ground of overcome rational thinking — Larenz defined the essence of concrete-general concepts as follows:

The unity of the concrete-general concept is thus not formal sameness, but the concrete unity of the divided whole that preserves the difference within itself.[8]

The members of the Kiel School — especially Dahm and Schaffstein — emphasized the independence of their methodological approach. They explicitly rejected the similarities of their thinking with the phenomenology of Edmund Husserl,[9] as claimed by Erich Schwinge and Leopold Zimmerl, and emphasized the differences between their conception of the "concrete general concept" and the "concrete order thinking" of Carl Schmitt.[10] In spite of this self-image, many lines of connection to Schmitt's concrete thinking on order were already drawn in contemporary literature.[11] Corresponding comparisons were also made in modern research literature, for example by Bernd Rüthers.[12] In contrast to Dahm and Schaffstein, Karl Larenz — like his academic teacher Julius Binder — openly professed New Hegelianism. In his 1974 monograph Von Hegel zu Hitler, Hubert Kiesewetter also counted Dahm and Schaffstein among the New Hegelians, a view that Larenz himself opposed shortly before his death.[13] In his view, Dahm and Schaffstein "would not have wanted to know anything" about Hegel.[14]

The jurisprudential contributions of the Kiel School were not only of purely academic significance, but also provided the judiciary with interpretative techniques and patterns of argumentation for reshaping the existing legal order in line with the "National Socialist legal idea." In addition, Karl August Eckhardt in particular endeavored to reform legal education. Among other things, he suggested eliminating the distinction between public and private law from legal education and reforming the curriculum in line with the National Socialist worldview. Eckhart's plans were reflected in the Ministry of Science's Guidelines for the Study of Law of January 18, 1935.[15]

The theoretical contributions to the discussion of the Kiel School were on a very general level.[16] In the foreground was the development of the general foundations of the "new jurisprudence," especially in the areas of civil law (Karl Larenz, Wolfgang Siebert), legal philosophy (Karl Larenz), criminal law (Georg Dahm, Friedrich Schaffstein), and constitutional law (Ernst Rudolf Huber). The Kiel School, however, did not deal with individual problems in depth.

Civil law and public law

In the field of civil law, the Kiel School devoted itself primarily to overcoming the "individualistic" concept of subjective law and replacing it with the "concrete legal status of the comrade of the people." For example, Larenz's 1935 essay Rechtsperson und subjektives Recht stated:

Not as an individual, as a human being per se [...] he has rights and duties and the possibility to form legal relationships, but as a member (...) of the national community. Only as a member of the national community does he have his honor, does he enjoy respect as a fellow jurist.[17]

Larenz therefore proposed to amend the basic provision of § 1 BGB, according to which the legal capacity of (so every) human being begins with the completion of birth, as follows:

Comrade in Law is only he who is a comrade of the people; comrade of the people is he who is of German blood.[17]

Ernst Rudolf Huber was one of the leading German constitutional scholars of the time.[18] Similar to Karl August Eckhardt, he also considered an exaggerated distinction between public and private law to be an overcome component of the bourgeois constitutional state. He therefore suggested replacing the concepts of private law and public law with the concepts of "sovereign" and "popular" law.[19] In particular, the tendency of the bourgeois constitutional state to subordinate even public institutions to the primacy of "individualistic" private law thinking had been overcome. The völkisch state, on the other hand, emphasized the obligation of the individual to the community. All formerly private-law institutions were thus subject to the guiding principles of sovereignty and leadership. For Huber, the consequence of these basic ideas was the non-existence of individual basic rights and liberties. This was stated in his 1937 work Constitution:

In particular, the liberty rights of the individual [...] are not compatible with the principle of völkisch law. There is no personal freedom of the individual, pre-state or extra-state, which is to be respected by the state.[20]

Criminal Law

The most influential aspect of the Kiel School renewal efforts ocurred in the field of criminal law.[21] The efforts of criminal lawyers Georg Dahm and Friedrich Schaffstein were to develop a specifically National Socialist criminal law dogmatics in sharp distinction from the "traditional" legal methodology. In doing so, they relied, among other things, on a "holistic and concrete view of essence" as the supreme principle of interpretation. (1), on "honor penalties" based on medieval legal concepts. (2) and to a substantive concept of crime, in which the "artificial and unrealistic" differentiation between the elements of the crime, illegality and guilt, which has been common in criminal law dogmatics up to now, should be abolished. (3). The elaboration of a substantive concept of crime was accompanied by the consideration of crime as "treason" (Dahm) or as a "violation of duty to the völkisch community" (Schaffstein), which was to completely replace the conventional consideration of crime as a violation of certain legal interests. The following quotation from Georg Dahm's essay Verbrechen und Tatbestand (1935) illustrates the radical nature of these approaches:

Concept and word of the facts of the case should disappear from criminal law dogmatics.[22]

Building on the concepts of "betrayal" and "breach of duty," Dahm and Schaffstein also developed the basic features of a "holistic and concrete" criminal law for offenders. This was done in deliberate demarcation from Franz von Liszt's approaches to criminal law concerning offenders, whose theory of offender types Schaffstein rejected as "rationalistic" and "utilitarian."[23] The Kiel School's theory of offender types dispensed entirely with psychological research into the personality of the offender in favor of a "popular and unconstructed" way of thinking.[24] Instead, the method of "intuition of essences" was to be preferred.[25]

The approaches developed by the Kiel School were received and evaluated very differently in contemporary literature. In particular, Dahm's and Schaffstein's theories of criminal law were sharply criticized, and Erich Schwinge and Leopold Zimmerl accused them of criminal irrationalism.[26] More common, however, were mediating positions that, on the one hand, adopted certain approaches of the Kiel School, but attempted to embed them within the framework of traditional legal concepts. For example, Edmund Mezger had taken offense at Schaffstein's attempts to abolish the demarcation between illegality and culpability and at the deletion without replacement of the concept of legal good by the concept of "violation of duty," but at the same time adopted parts of this approach in his own conception of the "crime as a whole."[27]

The end of the Kiel School

The Kiel School project ended before 1945 for purely personnel reasons: With the exception of Larenz, Dahm and Schaffstein, the professors involved were no longer teaching in Kiel in the winter semester of 1937/38. The remaining lecturers were transferred to other universities, as the Ministry of Education and Cultural Affairs had reservations as to whether it made sense, given the generally prevailing shortage of politically compliant junior staff, to concentrate all the law professors in a single faculty. In 1939, Dahm also moved to Leipzig University. Schaffstein was appointed to the University of Strasbourg in 1941, leaving Karl Larenz as the only member of the School in Kiel.[28] For this reason alone, it was naturally impossible for the members to maintain the close cooperation envisaged in the preface to the Gemeinschaftswerk Grundfragen der neuen Rechtswissenschaft.

In terms of content, too, some members of the Kiel School — especially Georg Dahm and Friedrich Schaffstein — partially retracted some of the positions they had previously held, from 1938 onward. This retraction was also due to the sharp criticism that the approaches of the "Kielers" had met with. Erich Schwinge and Leopold Zimmerl, in particular, had rejected Dahm's and Schaffstein's methodological approach wholesale and accused them of representing a "penal irrationalism."[26] Dahm and Schaffstein reacted to this criticism.[29] Whereas in 1935 Dahm had still wanted to abolish the penal category of the offense altogether, he now declared that he had merely wanted to make a "shift of emphasis." Similar relativizations took place in the area of the doctrine of the "legal good" and the criminal law systematics (distinction between illegality and guilt). In the later publications (after 1935) of Karl Larenz, on the other hand, no corresponding change of position can be inferred.[30]

Due to their positions during the National Socialist era, some members of the Kiel School had greater problems in the postwar period in regaining acceptance in academia. The only former member of the Kiel School who publicly and self-critically analysed his National Socialist past — albeit not until the 1990s — was Friedrich Schaffstein, who became one of the most influential juvenile criminal lawyers in the postwar period. Karl Larenz never commented publicly regarding his involvement with the Kiel School, but went on with the academic agenda and soon became one of the leading German civil law scholars after 1945. Only after his death did Göttingen professor Ralf Dreier publish a letter addressed to him by Karl Larenz, in which the latter admitted on the one hand that he had been too naive in the years after 1933, but on the other hand denied having had any significant influence at all as a New Hegelian.[31]

For a long time after 1945, Huber was unable to continue his career. Eventually, however, he succeeded in re-establishing himself academically. Particular recognition was given to his multi-volume work on German constitutional history, which is regarded as a standard work in this discipline.

Georg Dahm, who was discredited as a criminal lawyer after the war, devoted himself primarily to international law after 1945. A remark made by Georg Dahm in the third edition of his basic work on jurisprudence, Deutsches Recht (1963), may serve as characteristic of the way he dealt with his own scholarly past:

"It is not yet time to speak about National Socialism. [...] Excessive overestimation has been followed by excessive condemnation and disparagement [...] Neither the one nor the other way of looking at it seems to us to be appropriate.[32]

After 1945, the University of Kiel repeatedly dealt critically with its own history during the National Socialist era. The first of these was Erich Döhring's 1965 Geschichte der juristischen Fakultät 1665-1965 ("History of the Faculty of Law 1665-1965").[33] Furthermore, the legal historian Jörn Eckert in particular dealt with the history and impact of the Kiel School in several essays.[34]Finally, in 1995, an anthology edited by the Kiel sociologist Hans-Werner Prahl appeared with the title Uni-Formierung des Geistes. Kiel University under National Socialism, which provides a cross-faculty account.[35] Moreover, as a consequence of the university's particularly close involvement with the Third Reich, since 1946 all graduates who earn a doctorate in Kiel have been required to take an oath stating that they will serve only the truth (and not a regime).

Notes

  1. ↑ Jörn Eckert, "Was war die „Kieler Schule“?" In: Franz Jürgen Säcker, ed., Recht und Rechtslehre im Nationalsozialismus. Baden-Baden (1992), p. 41.
  2. ↑ Eckert (1992), pp. 43–45.
  3. ↑ Eckert (1992), p. 50.
  4. ↑ Bernd Rüthers, Entartetes Recht. Rechtslehren und Kronjuristen im Dritten Reich. München (1994), p. 48.
  5. ↑ Eckert (1992), p. 54.
  6. ↑ Eckert (1992), p. 58.
  7. ↑ Karl Larenz, "Vorwort". In: Georg Dahm, Ernst Rudolf Huber, Karl Larenz, Karl Michaelis, Friedrich Schaffstein, Wolfgang Siebert, eds., Grundfragen der neuen Rechtswissenschaft. Berlin: Junker und Dünnhaupt Verlag (1935), p. 9.
  8. ↑ Karl Larenz, "Zur Logik des konkreten Begriffs – Eine Voruntersuchung zur Rechtsphilosophie". In: Deutsche Rechtswissenschaft 5 (1940), p. 285.
  9. ↑ Georg Dahm, "Der Methodenstreit in der heutigen Strafrechtswissenschaft". In: Georg Dahm, Friedrich Schaffstein, Methode und System des neuen Strafrechts. Berlin (1938), pp. 1–70.
  10. ↑ Georg Dahm, "Die drei Arten des rechtswissenschaftlichen Denkens." In: Zeitschrift für die gesamte Staatswissenschaft 95 (1935), pp. 181–88.
  11. ↑ Heinrich Lange, Die Entwicklung der Wissenschaft vom Bürgerlichen Recht seit 1933. Tübingen (1941), p. 11.
  12. ↑ Rüthers (1994), p. 48.
  13. ↑ Hubert Kiesewetter, Von Hegel zu Hitler. Hamburg (1974), p. 272.
  14. ↑ Ralf Dreier, "Karl Larenz über seine Haltung im „Dritten Reich“." In: Juristenzeitung 48 (1993), p. 457.
  15. ↑ Eckert (1992), p. 59.
  16. ↑ Georg Dahm, Gemeinschaft und Strafrecht. Hamburg (1935), p. 1. The focus in 1935 was still on dealing with fundamental questions.
  17. ↑ 17.0 17.1 Karl Larenz, "Rechtsperson und Subjektives Recht – zur Wandlung der Rechtsgrundbegriffe". In: Georg Dahm, Ernst Rudolf Huber, Karl Larenz, Karl Michaelis, Friedrich Schaffstein, Wolfgang Siebert, eds., Grundfragen der neuen Rechtswissenschaft. Berlin: Junker und Dünnhaupt Verlag (1935), p. 241.
  18. ↑ Ewald Grothe, Zwischen Geschichte und Recht. Deutsche Verfassungsgeschichtsschreibung 1900–1970. München: Oldenbourg (2005), pp. 172–89.
  19. ↑ Ernst Rudolf Huber, "Neue Grundbegriffe des hoheitlichen Rechts". In: Georg Dahm, Ernst Rudolf Huber, Karl Larenz, Karl Michaelis, Friedrich Schaffstein, Wolfgang Siebert, eds., Grundfragen der neuen Rechtswissenschaft. Berlin: Junker und Dünnhaupt Verlag (1935), p. 150.
  20. ↑ Ernst Rudolf Huber, Verfassung. Hamburg (1937), p. 213.
  21. ↑ Thus Lange's contemporary assessment: Heinrich Lange, Die Entwicklung der Wissenschaft vom Bürgerlichen Recht seit 1933. Tübingen (1941), p. 15.
  22. ↑ Georg Dahm, "Verbrechen und Tatbestand". In: Georg Dahm, Ernst Rudolf Huber, Karl Larenz, Karl Michaelis, Friedrich Schaffstein, Wolfgang Siebert, eds., Grundfragen der neuen Rechtswissenschaft. Berlin: Junker und Dünnhaupt Verlag (1935), p. 89.
  23. ↑ Friedrich Schaffstein, Zur Problematik der teleologischen Begriffsbildung im Strafrecht. Leipzig (1934), p. 11
  24. ↑ Georg Dahm, Gemeinschaft und Strafrecht. Hamburg (1935).
  25. ↑ Friedrich Schaffstein, "Das Verbrechen als Pflichtverletzung". In: Georg Dahm, Ernst Rudolf Huber, Karl Larenz, Karl Michaelis, Friedrich Schaffstein, Wolfgang Siebert, eds., Grundfragen der neuen Rechtswissenschaft. Berlin: Junker und Dünnhaupt Verlag (1935), p. 120.
  26. ↑ 26.0 26.1 Erich Schwinge, Leopold Zimmerl, Wesensschau und konkretes Ordnungsdenken im Strafrecht. Bonn (1937).
  27. ↑ Gerit Thulfaut, Kriminalpolitik und Strafrechtslehre bei Edmund Mezger (1883–1962). Baden-Baden (2000), p. 201.
  28. ↑ Eckert (1992), p. 70.
  29. ↑ Georg Dahm, "Der Methodenstreit in der heutigen Strafrechtswissenschaft"; as well as Friedrich Schaffstein, "Rechtswidrigkeit und Schuld im Aufbau des neuen Strafrechtssystems". In: Georg Dahm, Friedrich Schaffstein, Methode und System des neuen Strafrechts. Berlin (1938).
  30. ↑ Karl Larenz, Über Gegenstand und Methode des völkischen Rechtsdenkens. Berlin (1938).
  31. ↑ Ralf Dreier, "Karl Larenz über seine Haltung im „Dritten Reich“." In: Juristenzeitung 48 (1993), pp. 454–57.
  32. ↑ Georg Dahm, Deutsches Recht. Stuttgart (1963), p. 268.
  33. ↑ Erich Döhring, Geschichte der juristischen Fakultät 1665–1965. Neumünster (1965).
  34. ↑ See for instance, Jörn Eckert, "Was war die Kieler Schule". In: Franz Jürgen Säcker, ed., Recht und Rechtslehre im Nationalsozialismus. Baden-Baden (1992), pp. 37–70; and "Die juristische Fakultät im Nationalsozialismus". In: Hans Werner Prahl, ed., Uni-Formierung des Geistes. Universität Kiel im Nationalsozialismus. Kiel (1995), pp. 51–86.
  35. ↑ Hans-Werner Prahl, ed., Uni-Formierung des Geistes. Universität Kiel im Nationalsozialismus. Kiel (1995).

References

  • Ralf Frassek, "Karl Larenz (1903–1993) – Privatrechtler im Nationalsozialismus und Nachkriegsdeutschland". In: Juristische Schulung (1998), p. 296.
  • Ingo Müller, Furchtbare Juristen. München: Kindler-Verlag (1987).
  • Martin Otto, "Die Kieler Schule". In: NJW-Aktuell 35 (2005).
  • Bernd Rüthers, Entartetes Recht. Rechtslehren und Kronjuristen im Dritten Reich. München: C. H. Beck (1989).
Retrieved from "https://infogalactic.com/w/index.php?title=Kiel_School&oldid=726322023"