Faszyzm i prawo
Loading...
Date
1982
Authors
Advisor
Editor
Journal Title
Journal ISSN
Volume Title
Publisher
Wydział Prawa i Administracji UAM
Title alternative
Fascism and the Law
Abstract
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.
Description
Sponsor
Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
Keywords
Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 44, 1982, z. 3, s. 25-50