History Internal Assessment
Was the “Gesetz über Maßnahmen zur Staatsnotwehr” (Law pertaining to Measures of Emergency State Self-Defence) used to create a legal precedent for further extrajudicial killings?
Examination Session: May 2026
Candidate Code:
Word Count: 2200
Section A. Identification and Evaluation of Sources
This investigation will examine the question, ‘Was the “Gesetz über Maßnahmen zur Staatsnotwehr” used to create a legal precedent for further extrajudicial killings?’ While many German historians and legal experts follow the intentionalist view that the law was passed to legalise further extrajudicial killings and distort the justice system, revisionist historians, including Benjamin Carter Hett and his contemporaries, contest this, arguing that the law was passed solely to justify the purge. This investigation will adjudicate between these competing perspectives, examining whether the law was used to establish a legal precedent for future extrajudicial killings.
Source A: Carl Schmitt’s Article, “Der Führer schützt das Recht zur Reichstagsrede Adolf Hitlers vom 13. Juli 1934.” in the Deutsche Juristen Zeitschrift. Published on the 1st of August 1934.
Written by prominent Nazi jurist Schmitt and Prussian State Councillor, this article was published shortly after the purge and aims to explore the Staatsnotwehr law, providing legal justification for the purge. This source is valuable to the investigation because of Schmitt’s legal authority and expertise as a Nazi jurist, providing direct insight into how the regime framed the purge as a legitimate act and Hitler’s authority to create new legislation, which is crucial to assessing whether the law created a precedent. Schmitt's close association with the Nazi regime also makes it valuable, as it reveals how contemporary legal scholars sought to legitimise Hitler’s authority above existing legal norms, providing insight into how retroactive legalisation was normalised to create an indirect precedent. However, this source is limited by Schmitt's NSDAP membership and political alignment with Hitler, as its purpose is to legitimise Hitler’s power consolidation and present the law as favourable, rather than objectively assess the law’s legality and future applicability. Moreover, it has a temporal limitation, as it was published a month after the purge, which limits its usefulness in assessing whether this legal reasoning was applied long-term and consistently.
Source B: Richard J. Evans’ Book, The Third Reich in Power, 1933-1939. Published in 2005.
Written by renowned historian specialising in Nazi Germany, Evans, the purpose of this book is to analyse Hitler’s consolidation of power. This source is valuable due to its origin; Evans benefits from hindsight and had extensive access to archival material and secondary sources, enabling him to assess the Staatsnotwehr law’s long-term implications, which is crucial for examining whether a precedent was established. Evans’ focus on examining Hitler’s consolidation of power also makes it valuable, as Evans analyses how the law effectively changed the legal system, providing crucial insight into the later judicial applications and their role within the erosion of legal norms in Nazi Germany. However, Evans is not a legal expert, limiting the depth of analysis into whether a formal legal precedent was created. Furthermore, the book’s scope is beyond the purge and the law, limiting sustained analysis of the law’s impact.
Section B. Investigation
Introduction
The Night of Long Knives, known as the “Röhm-purge”, was a pivotal event which took place on June 30, 1934, claiming circa 90 victims, including SA members and Hitler’s political opponents. It had devastating consequences for the Third Reich’s legal climate. While few historians dispute the events of the purge itself, significant controversy surrounds the subsequent law. On July 3rd, the “Gesetz über Maßnahmen zur Staatsnotwehr” was passed, retroactively sanctioning the killings as acts of “state self-defence”. This investigation will evaluate whether this law established a legal precedent for further extrajudicial killings by examining the intentionalist and revisionist perspectives. For this investigation, legal precedent is understood as a legal justification that can be cited or reapplied to similar future cases.
Intentionalist View
Intentionalists contend that the law was a deliberate attempt by Hitler to redefine the rule of law and institutionalize the use of state violence. Justice Minister Franz Gürtner, who admitted that the law did not cover a breach of the law, but “legalised an action”, implying that the murders were treated as lawful and retroactively legalised, violating the constitution’s ex post facto legislation prohibition. Kellerhof argues that through the law granting retroactive immunity for the murders, prosecution was rendered impossible, shielding them from legal scrutiny. This is substantiated by Hitler's advisor, Judge Lammers' testimony, where he argues the law granted “amnesty” for the extrajudicial killings, and “shall apply to all cases,” indicating the impunity for extrajudicial killings would extend beyond the purge. Evans contends that Hitler used the law to “revise the criminal code” in practice, suggesting Hitler positioned himself as the supreme judicial leader to “bind the hands of the judiciary,” subverting the courts’ capacity to prosecute extrajudicial killings. Carl Schmitt supports this; arguing the Führer “instantaneously created the law” via his supreme judicial authority, and that the ‘emergency measures’ were legitimate acts of national defense. This indicates that Hitler was no longer contained by the rule of law and could subordinate judicial authority to suit his political will, that the law was not simply an exception to the existing criminal code. Longerich argues this enabled Hitler to “override any applicable law,” on the pretext of “state defense”. This signalled that legislation could be overridden by the Führerprinzip to facilitate sanctioning future crimes, indirectly establishing a precedent for further killings. Evans contends that “formally illegal acts” were sanctioned and could go unpunished, representing what legal theorist Frankel characterises as the shift from a normative to prerogative state, where the system is no longer bound by laws, but derives legitimation from the supra-legal authority of the leader. This de jure positioned Hitler above the law, creating a precedent by normalizing the sanctioning of extrajudicial killings. Although the statute was temporally limited, subsequent applications show the law’s precedential effect. 3 weeks following the purge, the amnesty law, which referenced the Staatsnotwehr law, pardoning crimes committed “in excessive zeal for the NS cause” was passed. Hitler also cited the law to justify the elimination of “state enemies” in Munich in 1942, substantiating that the law normalized breaching legal norms, encouraging Hitler to continue to employ the law to justify extrajudicial killings and apply the law to similar cases, creating a precedent. German historian Gritschneder argues the law had a psychological effect; signalling that legislation was not absolute and could be altered to suit the NSDAP’s objectives. Legal historian Müller contends that although the law lacked provisions for future killings, it catalysed the legitimisation of individuals to commit crimes in the name of state defence. This is shown by Erich Szustack’s acquittal for 5 murders, where the 1934 law was invoked, because Szustack believed the victims were state enemies, illustrating that the law codified state defense as a justification and how it enabled further actions. In rulings on politically motivated killings in 1935, the law was invoked as a prior example of the same defence, and 3 murder convictions were overturned because the defendants had killed traitors and “defended the state”, demonstrating its direct application in justifying extrajudicial acts. Thus, intentionalists contend the law established precedent, as it legally justified and institutionalized impunity for further extrajudicial killings. Overall, this showcases a functional legal precedent for future extrajudicial killings was established.
Revisionist View
On the contrary, revisionists, including American lawyer Hett, refute the claim that the law established a legal precedent, arguing instead that it was passed as an ad hoc justification for the purge. Hett asserts that Hitler was a paradoxical figure, who simultaneously “lied all the time”, yet had a clear long-term plan. He contends that the law was born from short-term political opportunism, not a deliberate attempt to establish a legal precedent. The cabinet decision to have Hitler, in what Kershaw describes as an extraordinary act, take full responsibility for all murders, even those not ordered by him, implies the regime sought only to retroactively legitimize the killings. This, coupled with the fact that the law was passed on the 3rd of July, suggests that the intention was to cover up the killings, implying an ad hoc justification for the violence. After the purge, Hitler was under immense political pressure and needed to justify the crimes committed, and Goebbels’ own diary confirms the law was hastily drafted to cover the crimes, indicating improvisation rather than a coherent legal strategy. Legal scholars also criticize the legal limitations of the law itself, as it was composed of only a single article and deemed insubstantial. Although limited by his position as Gestapo-Chief, Werner Best himself argues the law was insufficient and had formal legal limitations. He emphasises the law was an “Einzelfallgesetz” (single-case statute), meaning it could only retroactively exonerate the murders committed between June 30th and July 2nd, demonstrating that the law lacked formal repeatability. The law itself outlines these limitations, crucially demonstrating that there was no direct legal mechanism for justifying future killings. This substantiates that the law was only passed as a short-term justification for the killings rather than as a premeditated act of legalizing extrajudicial acts, and shows it did not mean that legislation violating judicial norms could be passed at Hitler's discretion. Best contends that the law’s limited timeframe and specificity to the purge meant it could not establish a precedent, as it lacked repeatability for future similar cases. Moreover, Staatsnotwehr lacked a precise legal definition at the time, exemplifying how, due to lack of a judicial foundation, it could not directly indemnify future acts. Although it could result in a “normalization” of emergency measures, the law itself explicitly restricts itself to the purge. From a contemporary legal standpoint, the law is viewed as an exceptional “temporary suspension” of legal norms, as its provisions were restricted and it deviated strongly from the preexisting statutes, suggesting it had limited applicability to future cases. Schmitt himself, who implied the law positioned Hitler above the judiciary, conceded that there were temporary and precise limits of emergency measures, indicating it could not be directly applied to future acts. Thus, revisionists argue the law only retroactively covered the acts committed, exemplifying how the law was an improvised justification, not a deliberate attempt to establish a precedent. Similarly, Bendersky noted that “authority still rested with the legislature” as Hitler could not suspend the constitutional framework. Even Otto Gritschneder, an intentionalist, admits the law was often inapplicable, even to killings committed during the purge. Lammers' own testimony corroborates that in several purge-related murder trials, the courts deemed the law “inapplicable”, despite the NSDAP wishes. This underscores that the law was not universally accepted by the courts, substantiating that it did not establish a direct precedent. In the Kuno Kamphausen case, the court deemed the law inapplicable and convicted the SS officer of murder, since the victim was not a political enemy, although Hitler wanted to pardon him. This crucially emphasises the law's inapplicability and limited reach, supporting the lack of a legal precedent. Despite the law retroactively legalising the murders, it did not legitimise further extrajudicial acts, showcasing that no direct legal precedent was established.
Conclusion
Overall, it cannot be ignored that the Staatsnotwehr law marked a shift in the legal system, granting Hitler authority to override the judicial system and retroactively justify extrajudicial murders, as well as that in future rulings the law was cited to sanction extrajudicial killings. However, claiming that it established a direct legal precedent would be reductionist, as the law’s scope was limited, only retroactively justifying the killings and was applied inconsistently, rather than directly intending to create a precedent. Hence, the law established an indirect, functional precedent for future killings, contributing significantly to the erosion of justice in Nazi Germany.
Section C. Reflection
This investigation offered insight into the challenges historians faced when collecting data and analysing a historical event. A main difficulty of historical methodology highlighted by my investigation was the uncertainty of sources in different languages. I used many German sources, which required me to translate quotes myself, introducing potential bias regarding imprecise translation and the subjective interpretation of words. For instance, “Staatsnotwehr” (state self-defense) carries nuanced implications that do not translate precisely into English; the word “notwehr” is a legal term only existing in German, referring to a legally justifiable defense to deter an attack, a sentiment unique to German culture. This highlighted how the lack of reliability in translation and semantics can alter historical interpretations, shedding light on how historians must rely on contextual understanding of a language to avoid distorting the original meaning.
Moreover, a limitation of my methodology was that many sources were either from the NSDAP, written under the Nazi regime, or from former Nazi jurists. The political motives and ideological biases may complicate their reliability, as authors may have feared speaking out against the regime or sought to legitimise Hitler’s actions. Therefore, it was important to corroborate sources independently with information gathered by post-war historians to appraise their validity, deepening my understanding of how historians find value in using biased sources while cross-referencing them to form an objective interpretation.
Finally, another issue I faced was the challenge of historical analysis dealing with legal dimensions, as the investigation’s question cannot be answered without in-depth legal knowledge. Many historians specialising in Nazi Germany are well-versed in the sociopolitical aspects, but lack legal training, complicating their ability to appraise whether the law established a precedent for further killings. As I am also not a legal professional, I counteracted this imbalance by altering my methodology to include legal scholars or legal historians, such as Werner Best or Benjamin Carter Hett, who would have a better grasp of whether a legal precedent was established, leading me to appreciate the importance of an interdisciplinary approach in history, as it is often crucial to draw upon other disciplines to fully interpret the past.
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