that system is more authoritative than others. Inevitably this search for authority removes the focus to some extent from the precise needs of the particular society. Often what is borrowed is inappropriate. The need for authority even for legislation is obvious. Totalitarian regimes oftendo not rely simply on force for justification; other regimes may not even stress the need for government. Thus, in ancient times, the claim is frequently made that the law is given to a political leader by a god. The notion of the ’Divine Right of Kings’ gave legitimacy not only to the form of government but to its pronouncements. In modern revolutionary states radical governmental views of the nature and function of law are supported by a reliance on well-known ideas. Thus, for instance, the sophisticated Nazi theory of law rests obviously on Savigny’s famous work of , and it was mediated through Rudolph Sohm’s extremely successful textbook of Roman law for first-year law students.22 This Institutionen, Geschichte und System des römischen Pivatrechts, the basic introduction to law, actually reached its th edition in Leipzig in.23 Subsequent editions were produced in turn by Ludwig Mitteis and Leopold Wenger, and the book is still in print. It is almost certain that Hans Frank, the first president of the Akademie für Deutsches Recht, would have used Sohm’s textbook. That Sohm knew the work of Savigny and Jhering - also an influence on Nazi law - is certain; he refers to both with the highest approval. Sohm’s conception of law must be regarded as proto-Nazi though, like Savigny, he never defines Volk. What is truly remarkable is not only that Sohm intensifies Savigny’s theory, but that a work on Roman private law should be a stepping stone to the culmination of Hans Frank’s theory of law. Thus, the basic ideas were 22 For more detail see Alan Watson, Legal History and a Common Law for Europe (Stockholm, 2001) pp. 172 ff. 23 Since the work is not always familiar to modern scholars, I submit in appendix 2 my translation of the relevant passage from §7. I am grateful to Frank Stewart of the Hebrew University of Jerusalem for calling my attention to this passage.
RkJQdWJsaXNoZXIy MjYyNDk=