https://quadrant.org.au/opinion/the-law/2021/12/lessons-from-the-totalitarian-past/
It is increasingly clear the principle of legality is no longer regarded as important by some elements of the judicial elite, at least insofar as governments can allege the ’emergencies’ they declare justify the enactment of measures that profoundly affect our fundamental rights and freedoms. There is an unsettling precedent for the law’s endorsement of the unacceptable.
Excerpts
Unfortunately, the Australian legal profession has generally accepted the use of emergency powers by the executive government, thus enabling authorities to issue executive orders that impose heavy fines and imprisonment for non-compliance with certain arbitrary measures. Apparently, even the principle of legality is no longer regarded as important by some elements within the judicial elite, at least insofar as the government can allege that an “emergency” justifies the enactment of measures that profoundly affect the enjoyment of our fundamental rights and freedoms.
When one looks at the German legal profession in the 1930s, leaving aside those who were committed to the Nazi ideology, it becomes apparent that legal positivism played a significant role in the failure of lawyers to stand up against the Nazi atrocities. As noted the late Charles Rice, when the Nazis moved against the Jews, most lawyers who personally opposed the Nazi regime were ‘disarmed’ by legal positivism.[8] This wouldn’t be so if those lawyers had responded to the early Nazi injustices with a sound and principled denunciation rooted in traditional principles of the natural law. However, embedded in the positivist dogma that ‘law is law’ regardless of its substantive nature, many German lawyers became defenceless against laws of arbitrary or criminal content.[9] Because such lawyers ‘argued that the evolution of law should be viewed as following purely positive patterns’, Seitzer and Thornhill explains, ‘they concluded that the validity of law depended on its status as an internally consistent set of rules, and it could not be reconstructed or interpreted on the basis of moral prescriptions’.[10]
However, the vast majority of lawyers in Germany were supportive of Hitler. These lawyers embraced the notion that Germany was an organic unity and the spectacle of a divided parliament was unnatural to them. The principal characteristic of German lawyers, including law professors, was illiberalism.[21] The German legal profession generally welcomed Hitler’s appointment as Chancellor.[22] In October 1933, in their annual convention at Leipzig, 10,000 lawyers raised their right arms in a Nazi salute and swore, ‘by the soul of the German people’, that they would ‘strive to follow the course of our Führer to the end of days’.[23] On that very day the official journal of the Ministry of Justice exhorted the German legal profession to ‘march as an army corps of the Führer’.[24]
The Reich Minister, Hans Frank, was the head of the German Bar Association (1933–42), the Elected President of the International Chamber of Law (1941–42), and also President of the Academy of German Lawyers. Frank
believed that ‘the basis for the interpretation of all legal sources is the National Socialist ideology that is particularly manifested in the party program and the Führer’s statements’.