Ruch Prawniczy, Ekonomiczny i Socjologiczny, 1982, nr 3

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Browsing Ruch Prawniczy, Ekonomiczny i Socjologiczny, 1982, nr 3 by Author "Olszewski, Henryk"

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    Faszyzm i prawo
    (Wydział Prawa i Administracji UAM, 1982) Olszewski, Henryk; Zmierczak, Maria
    The fiftieth anniversary of Hitler's rise to power became an occasion for the authors of the article to make an attempt to define fascism and to examine the relations between fascism and the law: indeed, it was the German brand of fascism which was its most mature, complete and "classical" form. The relation between fascism and the capitalist formation is the crucial point of the discussion on the essence of fascism. The critical review of the previous theories, mostly those of H. Rauschning (the revolution of nihilism), H. Arendt (the theory of totalitarianism) and of E. Nolte (the theory of phenomenology) allow for a conclusion that there had been a link between the capitalism and fascism, contrary to their assertions. The big business did nothing to obstruct Hitler's rise to power. Yet, that relation was not all that simple as it was advocated by the members of the Comintern and communist parties. Most generally fascism can be defined as a set of phenomena organically linked with the crisis of the capitalist formation under conditions of presence of socialism, not only in the sphere of social consciousness but also in the political and legal superstructure. The fact that fascism is a complex of phenomena compels the scholar into the analysis of its essentials. The fascist movement and premises of its appearance are examined in the article. The Nazis had always been driving at the dictatorship and it was precisely the way their State became organized. A principle of Führer's leadership was its ideological justification, yet the dictatorship was not limited only to the charismatic Führer, the fascist dictatorship was the collective and hierarchical one. The Nazi world outlook (Weltanschauung) is another element of the definition of fascism. Muddled and incoherent it was, containing several slogans cementing power of the Führer: it involved his cult, the myth of the nation and of the race. All theoretical reflections, religion and morality were to be replaced, fascism claimed whole man for himself. Fascism is also irreversibly bound with a degradation of law in the social life. It is the effect of the dictatorship of a leader embodying a fate and destiny of the nation which was the essence of the system, and of the pre-supposed role of the Weltanschauung which was to replace the legal norms. The rise of fascism in Germany was linked with proclaiming a state of emergency which was to last to the final days of the régime. The positivist construction of legal state was to be substituted with the concept of leader's state elaborated by the university scholars (G. Schmitt, O. Koelreutter, E. R. Huber et al.) and by the Party lawyers (H. Frank). Fuhrer was the supreme lawmaker and the supreme judge deciding of the law. Fascism departed from formalism and legalism in constitutional law to begin with and in civil law to come to an end. The administration of justice was not to stick to the letter of the law but to act on behalf of the supreme wealth of the State, protection of race and to assist war and military preparations. The decline of legal science and the disintegration of essential legal principles was inseparably linked with the fact that fascism from the beginning was striking for war and conquest and the Nazi State was to execute those goals.