Nazi Criminology: Continuity and Radicalisation
Israel Law Review, Vol. 53 (2020), Issue 2, p. 259
Posted: 27 Mar 2020 Last revised: 25 Jun 2020
Date Written: March 2, 2020
Contrary to the 'Rupture thesis' favoured in Anglo-American academic discourse, Nazi criminal law did not, as has been shown in my recent book on Nazi criminal law (Nomos/Hart 2019), come out of nowhere and nor did it disappear after 1945. This article explains and defends this 'Continuity' thesis. In fact, Nazi criminal law took up earlier authoritarian tendencies of German criminal law and exacerbated them (Radicalisation thesis). It is for this reason that Nazi criminal law should not lightly be dismissed as 'Non-law' thus omitting any further engagement with it. This paper will show that the same continuity and radicalisation arguments can be made, mutatis mutandis, for German Nazi criminology which ultimately became a legitimating science ('Legitimationswissenschaft') for Nazi criminal justice policy. The argument is developed in four steps: first, an account of the racist and criminal-biologistic foundations of NS criminology, including their continuity both with the past and into the future, is given before, second, explaining the influence of criminal anthropology (particularly that of Lombroso) on criminology's 'scientification' ('Kraepelin and Aschaffenburg paradigms'). Third, the National Socialist radicalisation of criminology on the basis of the criminal-biological utopia of the 'blood-based' Volksgemeinschaft is shown. Thus, Nazi criminology derived its strength from, and built upon biological theories of crime which in turn laid the foundations of the deadly Nazi criminal justice policy. The discipline became a science that legitimated National Socialism, contrary to Wetzell's thesis of a somewhat dissident 'mainstream criminology'. Finally, with respect to disturbing developments in current German politics, it will also become clear that the (German) 'New Right's' approach to criminal justice is not novel at all but derives from the ideologically-infused theories and policies of Nazi criminologists during the 1930s.
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