关于希特勒一九三三年取得政权的合法性问题

On the Question of the Legality of Hitler's Seizure of Power in 1933

希特勒宣称:他上台执政是合法的,是有一九三三年一至三月间的法律作依据的。这是他为巩固政权而发表的最能蛊惑人心的一种言论。这种说法在很大程度上确保了全体文官、法院以及德国武装力量效忠于他。而武装力量正是构成魏玛共和国的重要权力因素,而且在国家社会主义德国工人党(简称国社党)当权时,如果没有希特勒的上述言论,我们至少可以设想。

The question whether Hitler's fascist and dictatorial power did in fact come into existence in a legal and constitutional manner is well worth studying both in the light of constitutional history and legal theory. This article looks into the background of Hitler's ascendence and of the coming into existence of the Enabling Act, which is the whole legal basis for his dictatorship. The author points out that in order to get the Act passed, Hitler resorted to unlawful measures with conspicuous features of a coup d'etat.The author also analyses the question in respect of constitutional theory raised by Hitler's unlawful seizure of power. He 'holds that there existed no clear order of precedence among the underlying principles of the Constitution, simple laws and mere subordinate legislation, which is a deplorable weakness of the Weimar Constitution. Hitler took advantage of this to assume an appearance of legality.In addition to the above, the author introduces the Basic Constitutional law of the Federal Republic of Germany in force today, pointing out that it has given the fundamental principles of the Constitution a higher status in the legal system and a guarantee of permanence. This is quite clearly the result of learning from the failure of the Weimar Constitution.