To what extent did Hitler and Mao subvert and manipulate the legal systems and processes of their countries to consolidate their own power?

Law and politics are like mathematics and physics, in that politics constantly poses new problems for the law to handle. Dictators cannot succeed without making laws, even if they are only arbitrary guidelines detailing how to implement their radical ideals to reshape society. They also need to repeal or ignore laws that are designed to prevent the arbitrary discharge of power. This essay will explore how Mao and Hitler manipulated and subverted their countries’ legal systems to grease the gears for their unrestrained rule, by violating the people’s rights in the people’s name, ushering in new laws to make it easy for them to prosecute political opponents, and overriding existing criminal codes and inserting politics into law.

Both Hitler and Mao established “People’s” judicial bodies that in reality violated the rights of the people. From the decisions of both bodies, there was no appeal, even where the punishment was death. [1] But the People’s Court of Germany was much more limited in its application than the Chinese People’s Tribunals: the People’s Court only dealt with serious treason cases [2], while the People’s Tribunals rode circuit from district to district, hearing all cases relating to agrarian reform. [3] They were notoriously blood-thirsty: according to Harry Wu, “in 1949 there were around 10 to 15 million members of the landlord and rich peasant classes nationwide. By the end of the 1970s, when the Cultural Revolution had ended, only 10 to 15 percent of them remained alive.” [4] This is not to say the German People’s Court was remotely fair and unbiased. Its chief judge, Roland Freisler, “behaved alternately like an actor ranting through an overwritten role in an implausible melodrama and a Grand Inquisitor calling down eternal damnation on the heads of the [accused] before him.” [5], and a law student who attended one of its trials “squirmed with shame at German law and German justice.” [6]

Both Hitler and Mao expanded the range of acts indicating dissent that could be considered criminal. Mao outlawed all acts that “endanger the people’s democratic system of our country, destroy our social order, or are dangerous to our society and deserve criminal punishment.”[7] He justified this by saying “the right of reactionaries to voice their opinions must be abolished and only the people are allowed to have the right of voicing their opinions,”[8] and since it was the opinion someone expressed that made them a “reactionary”, this meant that only the opinions Mao wanted to hear could be voiced. Likewise, Hitler declared all acts that offended the “sound feeling of the people” [9] to be unlawful. Hitler went a bit more specific in his creation of crimes, however. For instance, “preparation for treason”, which was punishable by death, included such acts as having a conversation with a person who opposed the Nazis, and not reporting him immediately afterwards to the Gestapo. [10] These sweeping laws violated a central principle of Western criminal law: nulla poena sine lege, nothing is to be punished without a law making it so, because otherwise people could be punished for breaking laws they had no realistic way to know about.

Both Hitler and Mao overrode provisions of existing criminal codes. Mao repealed all the codes of the Nationalist Government, even though they were quite cogently drafted and much work had gone into them. [11] He replaced them with a dismissive attitude towards the law: a widely cited textbook on the law said “the policy of the Party is the basis of legal work. All laws must be based on the policies of the Party; otherwise, they will not be manifestations of Party policy and will amount to no more than scraps of paper.” [12] The situation over in Nazi Germany was not much better. While the Penal Code of 1871 decreed the death penalty only for murder, Hitler added a host of other capital crimes, including acts as trifling as listening to foreign radio broadcasts. [13] Hitler also proclaimed himself the “Supreme Lord of the Law” with the power of life and death over every German, which meant he could bypass the normal judicial hierarchy whenever he felt like murdering political opponents, a flagrant violation of the principle of Judicial Independence, a feature of every self-respecting legal system. [14] In this respect Hitler sought to dominate what Mao sought to dismantle.

The complicated forms of the law, especially criminal law, are there to protect the rights of every person. One sees a sort of bitter irony in how both leaders violated the people’s rights while employing the name of the “people”, that would be humorous if it were not tragic. While the details of the law should definitely change to reflect popular demand, when a leader tries to mold the basic framework of the law to fit his political views, it is a sure sign that he is about to persecute people and does not need the law standing in his way.

NotesEdit

  1. Hoefer 392; McAleavy 58
  2. Hoefer 393
  3. McAleavy 57
  4. Wu 103
  5. Hanser 250
  6. Hanser 250
  7. Stahnke 513
  8. Buxbaum 3
  9. Hoefer 386
  10. Hoefer 387
  11. McAleavy 55
  12. Stahnke 524
  13. Hoefer 389
  14. Hoefer 387

BibliographyEdit

  1. Hoefer, Frederick. “The Nazi Penal System. I.” Journal of Criminal Law and Criminology (1931-1951), vol. 35, no. 6, 1945, pp. 385–393. JSTOR, JSTOR, www.jstor.org/stable/1138180.
  2. McAleavy, Henry. “The People's Courts in Communist China.” The American Journal of Comparative Law, vol. 11, no. 1, 1962, pp. 52–65. JSTOR, JSTOR, www.jstor.org/stable/838555.
  3. Buxbaum, David C. “Preliminary Trends in the Development of the Legal Institutions of Communist China and the Nature of the Criminal Law.” The International and Comparative Law Quarterly, vol. 11, no. 1, 1962, pp. 1–30. JSTOR, JSTOR, www.jstor.org/stable/756158.
  4. Wu, Harry (2012) "Classicide in Communist China," Comparative Civilizations Review: Vol. 67: No. 67, Article 11. Available at: https://scholarsarchive.byu.edu/ccr/vol67/iss67/1
  5. Hanser, Richard. A Noble Treason: The Story of Sophie Scholl and the White Rose Revolt Against Hitler. Ignatius Press, 2012, https://books.google.com/books?id=JzA2DwAAQBAJ.
  6. Stahnke, Arthur. “The Background and Evolution of Party Policy on the Drafting of Legal Codes in Communist China.” The American Journal of Comparative Law, vol. 15, no. 3, 1966, pp. 506–525. JSTOR, JSTOR, www.jstor.org/stable/838280.