4 - National Socialist Criminal Law

Summary

The remarkable normative shifts after the National Socialists assumed power also affected criminal law. This chapter outlines how NS criminal law theorists increasingly focused on the perpetrator’s evil will rather than on the criminal act itself. This led them to suggest a so-called will-based criminal law, which would make penal law particularly vulnerable to the racial and social prejudices of Nazi ideology. We discuss in detail the main transformations in criminal law, which are: focus on deterrence and retaliation; approval of honor-punishment; replacement of the liberal principle nullum crimen, nulla poena sine lege (no punishment without law) by that of nullum crimen sine poena (no crime without punishment); admission of analogy in criminal law, development of a so-called “will-based criminal law” and a perpetrator typology.