You have argued excellently that Henry VIII was not a proper autocrat. Am I to understand that, therefore, his reign followed the rule of law?
~Max
If it was not clear from my previous response to UDS1, I disagree on this point. Perhaps I ought to make a spin-off thread about England and the rule of law specifically.
~Max
I’ll let you have the last word on this England business, and we can put that aside. I made a much more important and relevant claim, that the rule of law is unnecessary to determine legality, to which this was your response.
By this claim I meant, specifically, that one can determine the legality of an act even if the law does not apply to everyone, and even under autocratic rule. I do not imply that it is always the case, but I believe it is the case for many actions properly attributed to the Nazi regime. I don’t take a substantive approach to the law in general, and I would not identify any particular human right as fundamental to the existence of law except perhaps the requirement that law be promulgated and self-consistent. Whether it finds authority in God or in an autocrat, or in the approval of the people at large, or whether it applies only to peasants, or to all, is of no concern to me when I ask whether the law exists or whether an act is consistent with the law as it existed at the time.
It just so happens that I think self-consistency and promulgation are also requirements for a state to follow the rule of law. That means a law criminalizing a certain act after-the-fact can not, in my mind, be consistent with the rule of law, nor can it be valid as a law. If it pleases your curiosity, I am of two minds as to whether a law decriminalizing acts after-the-fact can be valid, but I lean heavily towards “yes”.
~Max
This may be the key to it. I don’t think you can determine the legality of an act to which the law does not apply. If the state and its agents are unconstrained by law, then I’m not sure that it’s meaningful to say that a particular act of the state or it agent was lawful at the time it was done. So I don’t think this could provide any kind of defence to someone (say) tried in 1946 for something he did as an agent of the state in 1942.
It does suggest an alternative defence; that if the 1942 act cannot be said to have been lawful it equally cannot be said to have been unlawful. There are a couple of (contentious, obviously) responses to that:
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Germany could abolish the rule of law in the domestic sphere it lacked the competence to do so in the international sphere; Germany could not unilaterally decree that its obligations as a subject of international law were abolished. So the legality of an act can still be judged against standards derived from international law.
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It would be wrong to allow the abolition of the rule of law to have the same effect as legalising an act. Or, a varation; you can’t abolish the rule of law and then rely on a subsequent action which gives an act the colour of legality.
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The rule of law is foundational and it is beyond the competence of a state to abolish it. Or, it is unconscionable and people cannot be allowed to benefit from abolishing the rule of law.
Plus of course the usual jurisdictional issues; even if Germany could validly abolish the rule of law in Germany, it could not do so in territories that it had invaded/occupied.
Perhaps, for the Fuhrer himself, I might concede that is is not meaningful to talk of unlawful acts when the law gives him ultimate authority. But at least with his agents we can ask whether their orders stem from the proper authorities, and in this way, discern the legal from illegal.
~Max
As mentioned early in this discussion, I accounted for this with the right of conquest.
~Max
IAUI, the point of the Fuhrerprinzip is that not only the acts of the Fuhrer personally, but the acts of any person engaged in the execution of the Fuhrer’s will, were unconstrained by law. It wasn’t necessary that the Fuhrer should have ordered these acts.
(Plus, of course, the concept of an order stemming from “the proper authorities” has no application; in a state without the rule of law there are no proper authorities.)
I know. My suggestion is that international law might not recognise that the right of conquest could extend to a right to abolish the rule of law.
If true, and I don’t think it is in the legal sense, the question is whether the acts were consistent with the Fuhrer’s will, with the proper authority for that being the acts, orders, statements, etc. of the Fuhrer.
~Max
In my opinion your suggestion closely tracks history behind charges of crimes against humanity at the Nuremberg trials, which I also account for with the right of conquest.
~Max