Traces of Nazism Still Present in German Legal Code

By Rachel Pomerantz

Rachel Pomerantz is a freshman at the University of Pennsylvania.

A basic role of criminal legal codes is to define illegal, or societally unacceptable, behaviors. The prohibition of murder is one of the most basic examples of this. Surprisingly, the German legal code currently does not define the act of murder, but instead states that a murderer is, “someone who causes the death of another person out of certain specified unacceptable motives, such as ‘murderous lust’ or the satisfaction of sexual desires, ‘greed or otherwise base motives,’ through treacherous or cruel methods or in order to cover up another crime.” [1] Someone convicted of murder, or Mord, must receive a life sentence. In the same section, Tötung, a crime that loosely translates to manslaughter, is described as murder without the aforementioned motives and carries a minimum sentence of 5 years.

It does not describe murder as an unjust act but instead as certain acts that reveal someone’s defective character. Yes, this phrasing seems odd and out of line with most modern legal definitions of murder. In fact, the origins of the definition reinforce this anomaly in the German legal system. The current definition of murder was written in 1941 by the infamous Nazi judge Roland Freisler. [2] After the war, the definition was accepted by West Germany while, like most European countries, East Germany defined murder in terms of an action. Upon reunification, the Nazi language applied to the entirety of Germany. [3]

As the eventual head of the notorious People’s Court, Freisler fanatically adhered to Nazi ideology. Legal scholars note that the phrasing reflects the Nazi ideology that some people are weak by nature and therefore need to be separated from society. Dr. Stefan Koenig of the German Association of Lawyers explains that the Nazis translated their belief in inherently inferior people and therefore prioritized “defining a murderer as someone treacherous rather than looking at the circumstances of each individual crime.” [4]

Germany’s definition of murder must change. First, this vague definition of murder has already caused problems and has the potential to further complicate legal proceedings. In the United States, if a battered person kills her or his abuser, battered person syndrome can not only be a mitigating circumstance but is also accepted as a part of the doctrine of self-defense . [5] Meanwhile, in Germany, battered women who kill their abusers are statistically more likely to be convicted of murder (as opposed to manslaughter) than violent men whose abuse of their spouses escalated to murder. [6] A defendant deserving of sympathy is disadvantaged in comparison to unrepentant killers. Dieter Dolling, director of Heidelberg University’s Criminology Institute concurs, stating that judges do not currently have the ability to exercise judicial discretion. [7]

Beyond the practical implications, the current political atmosphere in Germany necessitates this symbolic change. Even though it might appear that opposing Nazi language is a universally popular opinion, some conservative German lawmakers have raised objections to the proposed changes. Members of the majority party in Germany, the Christian Democratic Union (CDU), have indicated opposition to the initiative because “questioning the term ‘murderer’ could be the wrong signal” at a time of rising prominence  of terrorism. [8]

While members of the CDU cite the conflict between “Western values” and the radical forms of Islam present in the so-called Islamic State as reason to not implement reform, Germany actually needs this opportunity to demonstrate its commitment to tolerance. Like all policy changes, this debate does not occur in a vacuum. Over the past few months, xenophobia and rejection of people that are “different” has risen in Germany. Pegida, a far-right, anti-Islam group, has gained political and national attention with its xenophobic message. [9] Especially in recent weeks, the German populace has been divided over the proper response to the  influx of refugees mainly from Syria, and have criticized Chancellor Angela Merkel’s stance of welcoming them. [10]

The symbolic value of this reform is significant. At a time of rising xenophobia in Germany, the German parliament has the opportunity to send a strong message to their constituents, European allies, and the world that German law is no longer written by fascists. Germany will not tolerate any inklings of hatred or exclusion. As German economic hegemony solidifies in the European Union, Germany must decide what kind of leader it wants to be.


[1] Terblanche, SS. "Sentencing Murder." Lecture, Dublin, July 15, 2008.
[2] Knight, Ben. "Justice Ministry to Change German Law's Nazi Definition of Murder." Deutsche Welle, July 31, 2015. Accessed October 9, 2015. http://www.dw.com/en/justice-ministry-to-change-german-laws-nazi-definition-of-murder/a-18620945.
[3] Evans, Stephen. "The Nazi Murder Law That Still Exists." BBC News Magazine, February 6, 2014. Accessed October 10, 2015. http://www.bbc.com/news/magazine-26047614
[4] Ibid.
[5] Raybin, David. "Battered Woman Defense." Hollins Legal. 2012. Accessed October 10, 2015. http://www.hollinslegal.com/articles/battered-woman-defense/.
[6] Evans, Stephen. "The Nazi Murder Law That Still Exists." BBC News Magazine, February 6, 2014. Accessed October 10, 2015. http://www.bbc.com/news/magazine-26047614
[7] Yohannes, Mihret. "Germany Still Has an Unexpected Nazi Law." USA Today. September 17, 2015. Accessed October 11, 2015. http://www.usatoday.com/story/news/world/2015/09/17/germany-nazi-law/32545237/.
[8] Knight, Ben. "Justice Ministry to Change German Law's Nazi Definition of Murder." Deutsche Welle, July 31, 2015. Accessed October 9, 2015. http://www.dw.com/en/justice-ministry-to-change-german-laws-nazi-definition-of-murder/a-18620945.
[9] "PEGIDA Rallies against Merkel and Migrants in Dresden | News | DW.COM | 06.10.2015." Die Welt. June 10, 2015. Accessed October 10, 2015. http://www.dw.com/en/pegida-rallies-against-merkel-and-migrants-in-dresden/a-18763017.
[10] "PEGIDA Rallies against Merkel and Migrants in Dresden | News | DW.COM | 06.10.2015." Die Welt. June 10, 2015. Accessed October 10, 2015. http://www.dw.com/en/pegida-rallies-against-merkel-and-migrants-in-dresden/a-18763017.

Photo Credit: Flickr User Roland Freisler

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