...took power with their own Nazi judges?
<snip>
F. The Telling Story of French and German Courts During Nazism and Fascism
The common law's constitutional and equity principles have a counterpart in civil law systems. These are the general principles (principes généraux) of France, and the general clauses (Generalklauseln) of Germany. Germany and France were two countries whose judiciaries enabled a reign of terror under Hitler and Pétain. Like common law principles of equity and constitutionalism, general principles and general clauses are judicial doctrines that allow judges to adjudicate under the spirit of the nation's law while interpreting specific legislation. In the words of two French scholars, French general principles allow "the introduction into positive law of moral rules or of principles of natural law."<82>They further explain these principles as a dimension of "fairness," using this untranslatable English word in the original.<83> The German equivalent, the general clauses, has been described as popular in Germany in order to further the judiciary's Rechtsgefühl: its sense or feeling for law in the sense of law and justice.<84>Thus, similarly to common-law judiciaries, civil-law judiciaries have, and, at all relevant times, have had, a mechanism by which judges may mould enacted law on a procrustean bed of justice.
Since the presence of such mechanisms in common law systems has not been enough to ensure that judges use them to overcome and neutralize evil legislation, it might be (as we also postulated with respect to the common law) that the effective use of these mechanisms requires a judiciary to be inculcated as to the necessity of their use. An examination of the judiciaries in Nazi Germany and Vichy France suggests the contrary, however.
Radbruch's blaming judicial positivism for the reign of terror which the Nazi courts enabled overlooked the fact that the traditional judicial positivism of Germany had ended well before Hitler came to power. Germany had, indeed, embraced judicial positivism at one time, with slogans such as "enacted law is enacted law" ("Gesetz ist Gesetz"), and a theory known as "enacted law/statutory positivism" ("Gesetzespositivismus").<85>
These doctrines had given way to increasing judicial activism before 1933. As Ingeborg Maus has noted, judicial activism and anti-positivism became the primary way for Germany's nationalistic and conservative judges to fight the Weimar laws they held in contempt.<86> Although Germany's judges appear to have felt greater sympathy for Hitler's régime than for the Weimar Republic, they continued their anti-positivistic methodology under Hitler:
<more>
<link>
http://www.germanlawjournal.com/article.php?id=572
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