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The Remnants of the RechtsstaatAn Ethnography of Nazi Law$
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Jens Meierhenrich

Print publication date: 2018

Print ISBN-13: 9780198814412

Published to Oxford Scholarship Online: April 2018

DOI: 10.1093/oso/9780198814412.001.0001

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The Idea of Lawlessness

The Idea of Lawlessness

(p.1) 1 The Idea of Lawlessness
The Remnants of the Rechtsstaat

Jens Meierhenrich

Oxford University Press

This chapter sets the stage for what is to come by introducing readers to the theory and practice of Nazi law. The first section uses the book’s cover image (a portrait of the infamous Nazi lawyer Roland Freisler) to introduce the argument the Nazi state was inherently bifurcated, and not just in its early years. The second and third sections juxtapose two contending approaches to the study of Nazi law: legal philosophy and legal anthropology. I show why the former is wanting in a critical analysis of what has become known as “Radbruch’s formula.” I highlight the limitations of Gustav Radbruch’s argument about statutory lawlessness by way of a comparison with Ernst Fraenkel’s ethnographic method. I close with a discussion of the problem of outcome knowledge in historical analysis, with particular reference to the historiography of Weimar and Nazi Germany.

Keywords:   legal philosophy, legal ethnography, statutory lawlessness, new institutionalism, Nazi Germany, non-law, Ernst Fraenkel, Roland Freisler, Gustav Radbruch

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