Book Review

Michael Stolleis's "The Law under the Swastika" provides the best overview of Nazi law and legal scholarship available in English. It is of particular interest for legal historians for two reasons. First, Stolleis, professor of public law and early modern legal history at Frankfurt University, approaches his difficult subject with both a sophisticated understanding of a wide range of legal norms and institutions and a tireless commitment to the careful and critical analysis of historical sources. Second, Stolleis devotes one of the three chapters in his book to the practice of legal history during and about the Nazi period. (The remaining two chapters are devoted to Nazi "Legal Theory and Practice" and "The Postwar Aftermath.")	1
Stolleis, the author of the leading modern history of German public law (Geschichte des öffentlichen Rechts, 2 vols. [Munich: C. H. Beck, 1988 and 1992]), covers virtually the entire scope of Nazi public law, from administrative law in its myriad manifestations to constitutional law and criminal law. Throughout, he displays an admirable familiarity with primary sources as well as with the considerable secondary literature on specific aspects of Nazi law. Where appropriate he gives the pioneers of the field their due, as in the case of Bernd Rüthers, whose 1968 study of Nazi legal theory and practice, focusing on the role of judicial interpretation during the Nazi period (Die unbegrenzte Auslegung: Zum Wandel der Privatrechtsordnung im Nationalsozialismus, 4th ed. [1968, Heidelberg: C. F. Müller, 1991]) broke the silence of German legal scholarship on the Nazi period and set the standard for the work that followed. Stolleis also pays appropriate tribute to the earliest of perceptive analysts of Nazi law, Ernst Fraenkel, whose 1941 distinction between the purely instrumental measure state (Maßnahmenstaat) and the principled norm state (Normenstaat) provides Stolleis with a conceptual framework for his discussion of the early years of the Nazi regime (The Dual State: A Contribution to the Theory of Dictatorship [New York: Oxford University Press 1941]).	2
In its nuanced attention to detail, Stolleis's book provides the American reader with a welcome alternative to the only other recent comprehensive study of Nazi law and lawyers available in English, Ingo Müller's Hitler's Justice: The Courts of the Third Reich (Cambridge, Mass.: Harvard University Press 1991). Müller's parade of legal horrors fulfilled an important function, particularly in Germany, and especially in German law departments. Yet, in its breathless rush to judge those who had escaped judgment far too long, Müller's book does not always live up to the scholarly standards that Stolleis's book exemplifies at every turn.	3
Stolleis's book does contain its share of scandals. In 1993, the doyen of West German constitutional law, Theodor Maunz, died. Author of both the definitive commentary and textbook on the Basic Law, revered professor at the University of Munich, and mentor of the leading scholars of West German constitutional law (including the former chief justice of the German constitutional court and the current German president, Roman Herzog), Maunz was known to have been a die-hard Nazi. What was not known, however, was that even for decades after 1945 he wrote anonymous columns for a nasty far-right-wing German newspaper and provided its publisher with legal advice, including on matters of constitutional law. The Stolleis book contains an expanded version of Stolleis's now famous 1993 article critical of Maunz and of West German constitutional law scholars as a whole, none of whom had spoken out against Maunz.	4
Since Stolleis's book accomplishes so much, it is important to recognize the limits of Stolleis's ambition. His interest is historical, not philosophical. Readers searching for fresh approaches to the old chestnuts of scholarship on Nazi law will be disappointed. For example, Stolleis summarizes the different positions in the continuously reopened debate between positivists and natural law theorists, but declines to join the fray. This is not to say that Stolleis refrains entirely from hinting at his preference for certain approaches to legal theory and legal scholarship in general. All in all, Stolleis adopts a positivist-rationalist stance that prefers Hans Kelsen over Hegel or Kant and displays a healthy suspicion of emotion-laden ideological pathos and self-serving or amateurish attempts at historiography. As a German legal historian writing about German legal historians writing about German Nazi law, Stolleis is scientifically self-critical almost to a fault. Surely, a list of "classic state thinkers" would include not only non-Germans like "Hobbes and Locke, Montesquieu and Rousseau," but also Kant, Hegel, and Marx (94). Stolleis takes nothing for granted and eschews unsupported judgments throughout. So, for example, he enlists the full apparatus of scientific analysis to determine whether the post-war apologia by a former Nazi military court judge (and law professor) about the integrity of the Nazi military courts was hampered by authorial bias (145-53).	5
In the end, Stolleis's book not only examines but also illustrates German attitudes toward Nazi law and toward legal scholarship, including legal history, in general. Stolleis's confidence in the tools of scientific critique only makes sense against the background of a general view of legal scholarship as a scientific endeavor, a view that is characteristic of German legal scholarship but may strike American lawyers as oddly pre-Realist. Then again, perhaps American readers will find themselves yearning for the clarity and moral certainty of legal scholarship in Germany, where Legal Realism (Freirechtsschule) remained one among many passing fancies of the new century and law quickly returned to a fairly comfortable formalism, with its categories, sub-categories, and sub-sub categories, the Nazis' open and utter disregard for which still appears not only to Stolleis as a frontal assault on the rational fundaments of the Rechtsstaat. Legal history, in this view, comfortably takes its place within science legal and historical, as it exposes its raw legal material to the acid test of critical reading, struggling to resist the lay temptation to stray from the descriptive mission of historical science.	6
Markus Dirk Dubber State University of New York at Buffalo

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