The Condition of Illegality in Transitional Settings

Abstract

In Germany, the situation was that the Nazi takeover of power in 1933 had been undertaken by what was considered legal means. This was the result of a conscious and cleverly designed and executed strategy by the Nazi Party. The regime was perceived as legal according to the German constitution by contemporary society, both within Germany and abroad. Virtually, a whole generation of German legal scholars gave support to the legality of the new regime. Despite the fact that “the constitutional basis on which the reconstruction of Germany on National Socialist lines rested was created mainly by fraud and terrorization”, serious reservations against the regime’s legality were not raised by the critics of the regime either. The regime and its legislative measures were applied as legal by the German courts right from the beginning. As a consequence of this perception of legality of the Nazi regime, the issue of legal responsibility and criminal liability for judges and other legal officials for applying the law raised difficult questions concerning the legal basis for such responsibility after the breakdown of the Nazi regime.