LESSON 12: LAW AND LEGISLATION BETWEEN THE TWO WORLD WARS_______________________

a. Introduction: The XX century____________________________________________________________________

 1914-1918: First World War. The effects of the gunshot that rang out in Sarajevo on 28 June 1914 were to
spread like wildfire, plunging Europe into the abyss of World War I.
During the XX century Europe was to undergo profound changes in the field of law.

In the first decades, the traumatic events of the IWW were decisive in the introduction of communism in Russia.
(System of gulags).

After the war, there were measures to repair the wounds with the 1919 Versailles peace treaty.

In addition, Italy, Germany, and Spain adopted the authoritarian political regimes of Fascism, Nazism and Francoism.

 1929: (Global) Economic crash.

 1936-1939: Spanish Civil War.
 1939-1945: Second World War.
The IIWW, brought about by the Nazi lust for military dominion over Europe, was the tragic consequence of the IWW
and marks the end of Europe’s leading role in world politics.

After the IIWW, the idea of the primacy of legislation as chief source of law vanished. A person fundamental rights
were now bound to the constitution, which was superior to legislation and unassailable by ordinary parliamentary
majorities.

 Cold War: From WW2 to 1989 (fall of Berlin wall).

 Second half of the 20th century
Creation of the United Nations. For seventy years, UN (1945) has operated on the basis of new rules, in pursuit of the
objective established after the IWW of reaching a new international order founded on the rule of law rather than on
the rule of force.
European integration. The European community was created and developed, creating the European Union.
o Global market (idea of a single market).

o Principle of sovereignty is called into question.

o Welfare state (Social State).

Decolonisation process.
b. Law between the Two World Wars________________________________________________________________
 Special laws during and after conflict were approved.
There was the abolition of marital authority over women. This was something that doctrine had called for
in the preceding 50 years. In Italy it was approved in 1919.
 The industrial-sized production of arms had accelerated the process of transformation in the economy and in the
law. Mass production and technology.
 Creation of business cartels and multinationals.
 1917: New codification of the Corpus Iuris Canonici (until 1983). The primary aim was to reduce the huge
number of sources accumulated over time and limit their application. The Canon Code remained in effect in the
Latin Church until 1983.
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 b.1 The Constitution of Weimar and Vienna
 Treaty of Versailles
In Germany the trauma of the military defeat, exacerbated by the punishing conditions imposed by the victors in the
Treaty of Versailles, led to a constitutional turning point:
o From the imperial monarchy to the Republic of Weimar.

o 1919: Weimar Constitution is a document of great significance for its contents and the
innovative nature of the issues debated during the 14 years that it was in effect. (It was replaced
by Hitler´s National Socialism in 1933).
 Innovative social measures – Democratic state. It attributed:
State´s sovereignty.
Structure based on regions (Länders).
Presidential parliamentary regime.
Fundamental rights.
Economy and labour conditions.
Private property aimed at assuring “common good”.
• Private enterprise “subject to socialisation”
 Weimar Constitution:Introduces constitutional principles that go beyond traditional ones of liberty and property
(Declaration of the Rights of Man 1789).
Equity and social justice. (Rights of personal freedom, freedom of expression, freedom of religion and
association, recognition of political parties)
 The debate involved public law scholars: Germany vs Austria.
(Germany) Anti-positivists – claimed that historical tradition and natural law were the upper limit of
the constitution. Legislation could not go against constitution. CONSTITUTION IS VERY
IMPORTANT AND HAS TO BE FOLLOWED.
(Austria) Positivists – claimed that legitimacy of constitution, which could be reformed. A law could
be legitimate but not constitutional. Freedom of the legislator. GOVERNORS HAVE MORE POWER
TO CHANGE THE LAW.
 Conflicts between law and constitution: Courts of Justice:
Resistance to recognise the judge’s role as that of “guardians of the constitution” (political nature of
matters).
o Carls Schmitt believed that the president of the Republic should be the “guardian”.

 Crisis of 1929 – transformation in the economy and corporate governance.

 1920: Austrian constitution:
Included the “recognition” of international law (normative hierarchy).
b.2 Fascists laws and new codes
 1922 – In Italy the sizing of Power of Fascism ended up becoming the dominant and only party–
transformation of the constitutional regime (1848 Albertine Statute) , which was against liberal democracy.
Benito Mussolini proposed a state model in 1919 partly based on the Weimar constitution, but:

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 o Employer´s association: one union per category and one employer’s association (which had to
be adhered to the political regime).
o Strikes were forbidden and sanctioned (Autocratic regime).

o Repression of freedom of press and political dissent.

o 1926: Special Court for the Defence of the State was instituted to repress political resent.

o 1927: Carta del lavoro (Labour Charter): Outlined what it was to be known as the corporative
system.
o 1938: Racial laws against Jews.

o 1939: Chamber of Fascist and Corporations: It replaced the Chamber of Deputies.

 1923: Beginning of the process of Fascist Codification:

The principles of the rule of law and culpability remained.
Individual freedoms were seen as limitations to the state.
1930: Criminal Code:
o Repressive approach.

o Escalation of penalties (Seen in the reintroduction of death penalty for the more severe
political crimes).
o Striking had become a criminal offence. The class of crimes against public finances was
introduced.
1930: Code of criminal procedure:
o Exclusion of defence during the investigative phase.

1942: Civil code.

b.3 The Nazi Regime and the Law
 1933 is the year when Hitler takes power. It began the most tragic phase of the XX century in Europe:
Fundamental rights theoretically guaranteed by the Weimar constitution were suspended.
o 28th February 1933: Emergency powers – exceptional powers to the President of the
republic.
o 5th March: National Socialist party won the elections.

o A law was passed to give full powers to the chancellor and derogate the constitution.

o Creation of special tribunals, imprisonment of dissidents.

1934: Hitler took the presidency of the Republic (after Hindenburg’s death).
Ideology founded on the myth of the superiority of “Aryans” of Germanic origin.
Legal order to prohibit political and cultural dissent and impose adherence to the ideology of the regime.
1939: Order to impose the execution of malformed infants and the mentally ill.
b.4 Francoism
 1936 – Coup d'État in Spain against the II Republic

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  1939 – (End of Spanish Civil war) Francoism regime, with many similarities to Fascism, is established in
Spain:
Legal order:
o 1938: The Labour Fuero.

o 1942: The Law Constituting the Cortes. 

o 1945: The Fuero of the Spaniards.

o 1945: The National Referendum Law.

o 1947: The Law of succession of the Head of the State.

o 1958: The Law of the principles of the National Movement.

o 1967: The Organic Law of the State.

b.5 Law in the Soviet Union

 1917: Bolshevik revolution directed by Lenin and based on a socialist movement of Marxist derivation.
 1915: Lenin had declared the need for an alliance between farmers and laboures against the economic and political
regime of tsarit Russia.
 After WW1. Russia was in serious crisis – Lenin sized power in October 1917.
 Soviet Communism lasted for 70 years;
Law as a fundamental instrument for the proletarian dictatorship and the abolition of private property:
o 1918: Landed property was abolished (expropriation).

1922: Stalin ascended to power – state control over economy became even stricter.
o Criminal code (1922) - offenses to the Soviet regime. (It denied the principle of legality,
everything was seen as offensive to the regime. The legal order established by workers and
farmers was viewed as criminal).

c. Peace treaties and Winds of War__________________________________________________________________

 1919 – League of Nations (part of the Treaty of Versailles):
Written by the victorious parties of WW1 (not USA).
Voluntary cooperation: weak and unrealistic structure.
Germany and Japan withdrew from the pact.
Failure of the project, but set the basis for the creation of the UN.
1921: Permanent Court of Justice (later International Court of Justice). (More successful)
o Aim: preventing future conflicts among states – International arbitration.