History students Bobby Hughes ‘20 and Nick Meissner ’20 have been working on a research project with Professor Phil Pajakowski to locate sources that he will use in his upcoming class on the legal history of authoritarian regimes. Employing library resources and online databases, Hughes and Meissner found primary and secondary sources that are pertinent to the subject of law in the Soviet Union and Nazi Germany. These resources will be used by students in Professor Pajakowski’s class to conduct research of their own. One Thing after Another thought it would ask Professor Pajakowski about the research before turning eventually to Bobby and Nick.
Q: Tell me about the class on legal history you will be offering.
Pajakowski: The class will be called Law and Dictatorship in the Twentieth Century. The theme is the function of law in Nazi Germany, Fascist Italy, and the Soviet Union. In each country, law was an instrument of the absolute authority invested in an individual, Mussolini or Hitler, or the ruling party, the Communist Party of the Soviet Union. Whereas in modern society law normally functions as a binding set of rules obligatory for the government and all citizens, in dictatorships the function of law was different and requires exploration. The main question we ask is, why did these states retain extensive legal apparatuses when unrestricted power was concentrated in the hands of the rulers?
Q: How will these sources be used in the class?
Pajakowski: The primary use of the sources will be to provide materials for students to write research papers. The source base Nick and Bobby have provided will help students determine reasonable subjects for research projects and give them a solid base for their papers.
Q: Will the students be researching different topics using the sources?
Pajakowski: Yes, the students can figure out ways to tailor projects to the available materials. I can imagine people doing comparative projects, work on particular aspects of the law in one of these countries, or taking broader views of social, political, cultural, or other issues that the law casts light on.
Q: What else will the students be doing/learning/researching in the class?
Pajakowski: Besides the term papers, we will use the law as a lens to examine these countries closely to see what legal sources can tell us about life under these forms of dictatorship. I would like for us to think closely about the protections law provides citizens in democratic societies and ways those legal safeguards can be eroded or misdirected.
Q: What other aspects of the class may these resources contribute to?
Pajakowski: They should be very helpful to me in preparing lectures, and we pull out particular documents or secondary readings to discuss in class.
Q: Do you have more than one class in mind that would use the sources? Will the sources contribute to any of your own research?
Pajakowski: I will use the bibliographies mainly in the new course, but the sources will also be useful for my Modern Germany and Modern Russia classes and also for my intro course, Law and Justice in European History.
Q: When do you think this class will be offered?
Pajakowski: I have sabbatical this coming fall, and I will devote some of my time to working on the new class. I hope to offer it in the 2020-21 academic year.
One Thing after Another next turned to Hughes and Meissner to ask them for their thoughts regarding their experiences.
Q: How difficult was it to locate relevant sources on Soviet/Nazi German legal history? Were there a wide variety of primary and secondary sources available?
Bobby: Finding sources was not too difficult. I thankfully had assistance from Professor Pajakowski and the history department’s librarian, Rebekah Dreyer, to help me find sources. It was mostly a matter of searching the internet and our library’s many databases––JSTOR and ProQuest in particular. I also found databases online that contained several primary sources.
Our school’s databases did not really help me in this respect, as they contained mostly secondary sources like scholarly articles. I really had to search the internet for primary sources, but I was able to find them.
There was a pretty even mix of primary and secondary source documents. I found most of the secondary sources on our school’s databases, primarily JSTOR and ProQuest. To find primary sources I really had to search the internet. I found one website called “Seventeen Moments in Soviet History” (soviethistory.msu.edu) that had documents directly relating to the titular seventeen moments. I found another website titled Marxists.org which contained the philosophical writings of many Soviet legal philosophers and lawyers, such as Evgeny Pashukanis and Andrei Vyshinsky.
Nick: At first, it was a bit of a challenge finding relevant sources on Nazi legal history primarily because I had to distinguish between written law and Führerprinzip, or the “will of the Führer” aka Hitler. It was very common in the Third Reich for written law to become worthless paper if Hitler made it so; at the end, his was the final word. As I accessed online databases, however, I found a wide variety of primary and secondary documents that pertained to Nazi law.
Databases like JSTOR and a few reference books in the Geisel Library provided an abundance of primary and secondary sources on Nazi law. JSTOR, for example, provided over 1,000 search results for Nazi legal history alone.
Q: Was it difficult to find primary sources available in English?
Bobby: Oddly enough, no. Almost all of the primary sources I found were translated into English. There were only a few sources that were only in Russian, but these did not dramatically alter the course of my research. Whenever I ran into such a situation, I was able to find another law or primary source that echoed the exact same sentiments/concepts.
Nick: All of the primary and secondary sources I came across were either written in English or had already been translated to English. This even included primary source documents on the actual laws and decrees passed by the Nazis.
Q: What was most challenging about researching the sources? / How did you evaluate the sources you found?
Bobby: The hardest part of researching sources was evaluating whether or not certain sources were worth putting in my final draft of a source list. Thanks to the fact that the Soviets were insistent on creating and recording their new revolutionary form of law, there was no shortage of sources. This also meant that there were many sources that essentially echoed the same sentiments and many that were outright irrelevant to what I was researching.
I was assigned to researching the legal history of the Soviet Union, not the political history, so this meant I had to omit many of the sources that did not directly relate to legality. This isn’t to say that politics did not influence the legal system, they absolutely did, and such documents that expressed that sentiment I kept. I kept sources that explored legal philosophy in the Soviet system, laws, orders, speeches about law, criminal and civil justice, criminal and civil procedure, and secondary sources that directly addressed the legal system.
Nick: What I found most challenging was distinguishing between normative law (that which is written and accessed by the public) and prerogative law (decrees that weren’t accessed by the public, were mostly kept secret, and were passed by the organs of the Nazi state – the SS, Gestapo, SD – and not by civil servants). I discovered that in Nazi Germany, there existed this “grey zone” where written law was either mixed or nullified by decrees passed by security organizations and even Hitler himself. This took away the common perception of law as something people followed and never changed, even leaders; in the Third Reich, this never existed because law became subservient to party ideology and Hitler’s will.
Q: What did you find most interesting about the sources you located? Did anything surprise you?
Bobby: I think that what I found the most interesting about this project was its historiographical aspect. Throughout time we see non-Soviet scholars evaluate legalism in the Soviet Union differently. From the inception of the nation till about the 1960s, most American scholars described legalism in the Soviet Union as not really existing. They wrote that rule of law did not exist, and that the country was in a state of anarchy since it was subject to the will of the central committee and eventually to Stalin’s will (which was not entirely inaccurate). From the 60s and onwards, American scholars began to take a different approach. They recognized the flaws with the legal system, but it was a much more measured or balanced approach; the Soviet Union was no longer an evil anarchic state, but rather a deeply flawed state attempting to define what a socialist legal system ought to look like.
And on that note, I found it very surprising how similar, in theory, the legal system in the Soviet Union was to that of the United States. Of course the two legal systems emphasize radically different social values, the Soviet Union being more focused on the collective and the United States being more focused on the individual, but in many respects both systems, in theory, operated similarly. Contrary to popular belief, the Soviet Union was not a lawless state where the will of an iron-fisted leader had absolute control.
Stalin too, believe it or not, desired to create a legitimate socialist legal system. To do this he had to give the appearance that legality existed. Indeed to many outsiders, the show trials and the arrests of “traitors” appeared to be legitimate. Moreover the victims in theory had a form of due process—it was just that the framework of what appeared to be a legitimate criminal justice system was intimidated and coerced by Stalin. During and after Stalin’s reign, Soviet citizens had rights enumerated in a constitution; there were established criminal and civil procedures, methods for solving civil disputes, and a criminal justice system. The Soviet Union had staples of a legitimate criminal justice system like that of the United States. It was not, however, independent from the influence of the Communist party, and it emphasized socialist values.
Nick: Two things really surprised me in my research. I came across one document entitled “A Jewish Nature Preserve,” which analyzed an overlooked period in the history of the Nazis where Jews in Upper Silesia (in what is today western Poland) were subject to special minority protections that barred Nazi discrimination on the basis of religion. Between 1933 and 1937 the 10,000 German Jews living in Upper Silesia were not persecuted under the Nuremberg Race Laws like elsewhere in Germany. Another document entitled “Law and Justice in the Nazi SS” was about the SS and how this Nazi organization was able to manipulate its own judicial system – with special SS courts and judges – as separate from regular civilian and army courts.
Q: How has the research contributed to your studies as a history major?
Bobby: I’ve gained a much greater capacity of individual research as a result of this project. Much of the research that I had done before was very directed: I had a very distinct topic I would have to research, I had to pull a few sources that related directly to that topic, and then I was finished. With this project, however, it was very open-ended. I was given free rein to find sources for a broad topic. This project definitely taught me how to evaluate a large number of sources and to establish their relevance to a topic.
The material itself was very applicable to the class [on Modern Russia] I was taking at the time. It was kind of cool because as I was doing research, Professor Pajakowski was pointing out in class several themes across the history of the Soviet Union which aided me in understanding and finding sources. It was a mutually-reinforcing system. Professor Pajakowski spoke in class about how scholarly representations of the Soviet changed over time, and I noticed this change in historiography in the secondary sources I found. This project and the research skills it taught me, I feel, will help prepare me for my thesis next year.
Nick: The research on Nazi law has provided me with a whole new outlook on law and dictatorships. It also helped me become a better researcher in accessing online documents, using databases, and writing abstracts on sources. Overall, the research enhanced my interest in German history.
I truly had an interesting time researching Nazi legal history which is, after all, not as well known as Nazi military history or the history of Nazi racial policy. The hours I spend researching certainly applied to one of my classes, 20th Century Eastern Europe taught by Professor Pajakowski, because I saw how Nazi applied law to Nazi policies in Eastern Europe during World War II.
Be sure to keep an eye out for Professor Pajakowski’s upcoming class, Law and Dictatorship in the Twentieth Century.