The Rule of Law, Nazi Law, & War Crimes

How can we make sense of the Holocaust, in which Nazi Germany committed crimes too enormous to imagine? This course will try to grapple with that question, not from the point of view of the Holocaust's evil, a problem for philosophy and theology, but from the point of view of its lawlessness, a problem of legal history. What shared legal assumptions existed before the Nazis came to power, how did Nazi Germany's exterminatory theory and practice attack those assumptions, and how did the post-Holocaust international community try to restore them? To address these issues, this course asks three questions. First, what is "the rule of law" - a concept that is basic to Western democratic legal systems but that is more often invoked than defined and explored. Understanding what "the rule of law" is raises a related issue: under what circumstances does it flourish and under what circumstances does it collapse? Second, what role did law play in Nazi Germany in 1933-1945 and in the extermination in Nazi-controlled Europe of Jews, Roma, the disabled, and others? Exploring the role of law in Nazi Germany also raises a related issue: how did the Nazi dictatorship destroy the rule of law with the help of law, lawyers and judges? Third, how did the Holocaust and the post-war prosecution of Nazi perpetrators revise views about the rule of law, including a reinvigorated concern about human rights? Studying post-war trials raises issues about how, at Nuremberg and afterwards, international legal theories and institutions emerged with the goal of preventing future genocides, punishing perpetrators, and preserving the rule of law in an international context. Answering all three of these questions requires exploring problems in jurisprudence (what is the rule of law?), tragic events in legal history (what was the relationship between the law and the Holocaust?), and dilemmas in international criminal law (how can the international community enforce human rights?). The course requires no prior knowledge, only curiosity to probe some of the most troubling legal issues of the twentieth century. While the issues in this course are fascinating, they are also often difficult, not only intellectually but also emotionally. Studying the Nazi era includes reading stories of hate and cruelty and descriptions of atrocities. Before taking this course, you should consider whether reading that type of material risks being too upsetting for you. If you are concerned that it might, you may talk with me privately first or you may decide that this course is not for you. Studying the Nazi era also involves trying to enter into the mind set of people who thought of ways to discriminate against others, who justified cruelty, and who committed atrocities. Some material will include racist, antisemitic, and other discriminatory and offensive language. Trying to understand the thinking of Nazis and their sympathizers is different from agreeing with their reasoning, let alone downplaying their responsibility. Class discussions may require even more energy than usual in trying to struggle with both expressing ourselves thoughtfully and still experimenting with ideas. Fruitful discussions are most likely if class participants assume each other's good will, listen to each other carefully, and be patient with each other. Our goal is to learn from each other, not offend each other, even while we all struggle to make sense of people who once acted so offensively. Grading Method/Evaluation: If not using the course to satisfy the UCWR: a) Class participation (20%)b) A short 1-2 page paper due every session (25%. Each short paper will answer an assigned question about the reading for the upcoming week. The purpose of these short papers is to help focus attention on the reading, analyze issues clearly, and generate class discussion. c) At mid-semester, the paper will be 4-5 pages on an assigned question (25%). This midsemester paper will build on the prior papers and aim to synthesize material in the first half of the course. d) At the end of the semester, there will be another 5-6 page paper on an assigned question (30%), again to build on the prior papers and to aim to synthesize material in the second half of the course. By the end of the course, the written work will total approximately twenty pages. 2. If using the course to satisfy the UCWR: a) Class participation (20%). b) (i) The first three of the short 1-2 page papers, as described under 1.b) above (10%). By the fourth class, you must let me know that you will be opting for the UCWR. (ii) A substantial first draft of UCWR by the ninth class (10%). c) At mid-semester, the paper will be 4-5 pages on an assigned question, as described under 1.c) above (25%). d) At the end of the semester, there will be the UCWR paper of at least 20-25 pages (35%). At the last class, each student will make a short report on their paper. I am including further instructions for and ideas about that paper at the end of the syllabus. By the end of the course, the written work will total approximately thirty pages.