Fascism and the law
The use of the word “fascism” has become so debased that it is now virtually meaningless. The Shorter Oxford English Dictionary defines “fascist” as one of a body of Italian nationalists organised in 1919 under Benito Mussolini to oppose Bolshevism. Hence “fascism”, their principles and organisation.
George Orwell, writing in 1944, made the following points:
· As used, the word “fascism” was almost completely meaningless. He had heard it applied to farmers, shopkeepers, corporal punishment, fox hunting, bull fighting, homosexuality and astrology.
· Fascism means, roughly speaking, something cruel, unscrupulous, arrogant, obscurantist, antiliberal and anti-working class.
· Almost any English person would accept “bully” as a synonym for “fascist”. That is about as near to a definition as this much-abused word has become.
The relationship between fascism and the law can be understood by an analysis of two overtly fascist systems.
Mussolini regarded himself as a great jurist and as the inspiration of the fascist law codes which he intended to replace the Napoleonic codes over the whole of Europe. The fascist penal code of 1931 abolished juries, made strikes illegal and created the offence of injuring the prestige of the Duce (Mussolini). The codes comprised 30,000 pages.
The National Socialist theory of law in Hitler’s Germany included the following:
· The leadership principle. The state is a group and a group has no strength or unity without a leader. The leader is the mystical personification of national unity. Law and the state mean the same thing. Since the leader is the embodiment of the state, law is what the leader commands. Therefore, unquestioning obedience is demanded. The law serves political ends and nothing must stand in the way of implementing the will of the leader.
· The racial principle. Law is inherited by blood. It should serve the ends of the state and its policies. It should help to preserve racial purity. The German Code of 1900 was based on Justinian’s version of Roman law and was therefore “Jewish” in origin. The only international system which could be tolerated was a Nordic one. Every state has a natural privilege and power to prevail over other states and to take their land as room for its people. Any treaty which attempted to restrict this privilege could be ignored.
Nazi law was not central to the exercise of power by the National Socialist party but it formed part of a system which brought unimaginable suffering to millions.