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Jurists played a key role in shaping Germany’s political economy in the first half of the twentieth century. Used to thinking in terms of power and its checks and balances, these lawyers contributed to a drawn-out debate about the relationship between state and markets, private business and public interest. Faced with repeated economic crises and political turmoil, they came to agree that corporate power had reached a level undermining economic liberty and the political sovereign charged with its protection. Walking a fine line between liberal thinking and a preference for regulative state power to protect capitalism from itself, these jurists – here exemplified by Franz Böhm and Heinrich Kronstein – identified with the Republic although political loyalties proved changeable. While Böhm remained in Nazi Germany, rephrasing his thinking in line with the regime’s preferences, Kronstein went into exile, where he found a receptive audience among American trustbusters. Yet, on his return to postwar Germany he teamed up with Böhm once again, thereby boosting the political legitimacy of the emerging ordoliberal school and helping bring the long quest for a tamed capitalism to its conclusion.
Starting out from the question of how history and law relate to each other, the article traces the influence of historical interpretations in the making of the Nuremberg Trials, taking these as examples for transitional trials more generally. In trying to explain Germany's apparently aberrant historical evolution, special-path explanations forged by historians gained in prominence after 1933. Several schools of historical thought proved particularly influential, among them the Namierites in Britain, the Andler-Vermeil school of Pangermanism in France, and the so-called Kehrites who emigrated from Germany to the US. These ideas then traveled to Nuremberg where they informed the prosecutors’ understanding of German history, leaving a discernible impact on the trials’ design and dynamics. In Nuremberg's aftermath, these trial narratives would come to inform influential strands in postwar historiography, with the special path both enjoying popularity and inviting heavy criticism to the present day.
The attack against the Soviet Union was ideologically motivated, but the timing owed a great deal to military and economic considerations. German hopes largely focused on Ukraine, which was expected to be both a giant breadbasket and a reservoir of essential minerals. But plans for the economic exploitation of Ukraine were flawed from the beginning and remained inconsistent throughout the war. Substantial reconstruction efforts only began belatedly and were accompanied by brute force that combined economic logic with ideological zeal. The Nazi policies of racist repression and mass murder were, then, both a means of and an obstacle to exploitation of the East. Yet, they were also successful: without the raw materials obtained from Ukraine, the Nazi war machine would have likely ground to a halt well before 1945. The cost of sustaining the German war effort was consequently borne, to a large extent, by the local population, which labored under appalling conditions both in the Reich and in Ukraine itself.
This article reviews recent historical investigations of transitional trials held after the Second World War. It identifies three main strands of historiography. One group of studies has been dominated by the trials' participants who have shaped the perception of the trials' scope, their achievements, and their shortcomings, and pursued political, legal, or biographical agendas. A second group has treated the trials as a mere epilogue to the history of the deceased regimes. A third, more profound approach has conceptualized the trials as places where collective memory was assembled, configured, and shaped. This notion opens the debate to an analysis of how law and history on the one hand, jurisdiction, jurisprudence, and historiography on the other interact and how they impact on one another. The article compares and evaluates the benefits drawn from this research. It finds that historical analyses which take seriously the epistemological premises of the law as well as the courtroom's performativity manage to bypass well-trodden paths of interpretation which either deplore the limited, inadequate punishment meted out, or celebrate the triumphant march from Nuremberg to The Hague. The article concludes that such interdisciplinary readings help to avoid widespread disillusionment with the results of transitional trials.
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