Theory and Practice of Disenfranchisement in the Second Half of the Horthy Era and the National Socialist Regime: Report on the Research Project Supported by the Alexander von Humboldt Foundation (Göttingen–Pécs, 2019–24)

In 1935, Kornél Sándor Túry was a professor of commercial law at the Law Faculty of the University of Szeged in southern Hungary when he analyzed the question of justice in legislation and the application of law in the field of private law, primarily in commercial law, in a paper of about 140 pages.1 He concluded that “the legal order, as an organization intended to establish the external order of human coexistence,” can never perfectly realize “absolute truth” in its complexity. It happens that “a rule of private law which gives legal effect to external facts may, exceptionally, involve a loss of rights for one or another of the parties concerned,” and therefore in this sense the pursuit of absolute justice would not serve the purpose.2 The truthfulness of Túry’s summing-up must be acknowledged by anyone who has been confronted with the conflict of interests in the legal relationship between person and person, and the relative nature of the legal responses to them. As the opening idea of my research report, I will therefore—in this interpretative framework—quote from the basic thesis of Túry’s work that led him to investigate justice: “The ultimate aim of jurisprudence, law enforcement, and legislation is the search for and the pursuit of justice. Jurisprudence can only achieve this goal if, like all other sciences, it focuses on the search for reality and chooses the appropriate tools for this purpose. Without this objective and without such tools, jurisprudence can hardly be a real science, like any of the natural sciences. The (judicial) application of the law only provides justice if it seeks to ascertain the true facts of the specific case to be decided and applies the correct law to the facts so ascertained. And legislation, too, serves the ideal of law only if it has the requirement of justice in view and enforces this requirement everywhere.”3The question of what justice as “good” and injustice as “evil” mean, how to define “good” and “evil,” or whether these categories exist at all, can be answered by looking at the roots of European legal culture: the Greek and Jewish-Christian philosophies of law. In the latter, divinely revealed law leaves no doubt as to where the boundary between right and wrong lies and what their content consists of,4 but in the former we are confronted with a multitude of views. Hesiod, the famous poet of the eighth and seventh centuries BCE, called the attention of his contemporaries to the importance of ius divinum in his search for Dike, the source of justice, while Archelaus of Miletus in the fifth century BCE replaced supernatural justice with human-made legal norms. But when the ius humanum was coupled with the moral relativism of the Athenian sophist politicians, Socrates stubbornly argued against this phenomenon, which could only be considered a formal law, that the natural order gave rise to permanent moral values.The boundaries of justice and injustice can be recognized if we accept as a basic proposition that justice and injustice exist and can be clearly distinguished from each other.5 But the search for justice in the age of legal positivism was and is far from being a simple task, and it is not certain that absolute justice at the community level should be the basis of human coexistence. A good example of this search is the life’s work of Hans Kelsen, born in Prague, who—assimilated not only legally but also socially as a “citizen”—began his academic work in the intellectual milieu of Vienna in 1906 and finished it in California in 1973. The young Kelsen believed that the norms considered just or ethical in a given time, place, and legal culture always reflected relative values, from which he concluded that it was impossible to justify positive law by natural law. He argued that scientific legal knowledge must be devoid of morality, which he considered rationally unjustifiable—just as he considered the concept of absolute justice, which he rejected in defense of democracy, to be of this nature, invoking Plato's theory of the state.6 Rather, it was his so-called pure theory of law, his doctrine of democracy and pacifism,7 with which he spoke out against the imperialism, dictatorship, and metaphysical jurisprudence of his time. Some two decades later, on May 27, 1952, in his farewell address on the occasion of his retirement,8 the elderly Kelsen, instead of defining absolute justice, simply attempted to say what justice meant to him: science, and with science, the defense of truth and honesty, which is the justice of peace, democracy and tolerance.9In 1946, the German legal philosopher and criminal lawyer Gustav Radbruch (1878–1949) argued that in a conflict between positive law and justice, the judge may rule against a legal norm and instead in favor of substantive justice if and only if the norm in question appears to be unerträglich ungerecht [unbearably unjust] or bewusst verleugnet [consciously denies] the principle of equality for all, which is fundamental to the concept of law.10 Radbruch—who was a representative of the Sozialdemokratische Partei Deutschlands [Social Democratic Party of Germany] in the Parliament from 1920 to 1924, served briefly (1921/22 and 1923) as minister of justice of the Weimar Republic, and from 1926 as a university professor in Heidelberg—also had personal experience of the mismatch between justice and legal certainty. Shortly after Adolf Hitler’s appointment as chancellor of the Reich on January 30, 1933, he was deprived of his chair. After a year of asylum in England, he returned home but remained a private professor until his death. His thesis about Gesetzliches Unrecht und übergesetzliches Recht [statutory injustice and supra-statutory law]—like the doctrine of democracy of Kelsen, who was also deprived of his chair at Cologne university in 1933—still rings true today.The team (Helen Ahlke Abram, Timo Marcel Albrecht, and Tim Schütz) of Eva Schumann at the Georg August University of Göttingen and members of the Márkus Dezső Research Group for Comparative Legal History at the University of Pécs (Gábor Schweitzer, Veronika Lehotay, Dominika Patrícia Niklai, and Eszter Cs. Herger) have started to implement the research project “The Theory and Practice of Disenfranchisement in the Second Half of the Horthy Era and the National Socialist Regime” (2019–24), funded by the Alexander von Humboldt Foundation in Germany, with the same aim of seeking justice between human and human, focusing on a period (1933–44) when the spirit of the fratricide Cain was particularly strong.In the second half of the so-called Horthy era (1920–44), which coincided with the establishment and operation of the National Socialist “Third Reich,” the rule of law was significantly eroded in Hungary, and in the process Jewish citizens were gradually deprived of their rights and later completely disenfranchised. In our research project, the comparative and transnational study of the development of Hungarian law did not mean the analysis of the laws adopted in Hungary at the time; rather, we were interested in the interpretation of the interactions, interconnections, and exchanges between Hungarian and German jurists and the comparison of anti-liberal, discriminatory, and racist legal theories. Hungarian legislation from 1938 showed clear parallels with the Nazi Rechtserneuerung [law reform] from 1933. The question, however, is to what extent the Hungarian legal changes constituted a transfer of rights, what kind of relations they were based on, and in what way national characteristics can be found.Our research project covered three broad topics of which the first and the third were subject to joint work of the Göttingen and the Pécs project teams, while the second topic was mainly treated by Hungarian researchers due to their language competence, with conceptual support from the German side. The research demanded an ideological-historical approach to the complex issue; dealt with the incorporation of anti-liberal, discriminatory, and racist legal views into Hungarian jurisprudence; and finally examined the interactions of the actors. Although the three topics have different focal points, they also have a number of commonalities, which have enabled a constant exchange of ideas between the German and Hungarian researchers involved in the project over the four years.The first topic was a comparative analysis of legal concepts and the ideas behind changes in the legal order. In 1935, the Working Group on German-Hungarian Legal Relations was set up at the National Socialist Akademie für Deutsches Recht [Academy for German Law], founded by Hans Frank in 1933 and headed by him until 1942. Among the corresponding members of the Academy were several prominent, high-ranking foreign lawyers, such as László Radocsay,11 Zoltán Magyary,12 Ödön Mikecz,13 István Oswald,14 József Stolpa,15 Géza Töreky,16 and Gábor Vladár.17 Corresponding members participated in the Academy’s conferences, contributed to its journals, and actively supplemented the Academy’s work through presentations and publications. We examined this form of cooperation in each field of law separately, and we also demonstrated the parallels that appeared between the legal policy ideas of prominent German National Socialist lawyers and those of their Hungarian colleagues. In addition, on the basis of the publications of Hungarian lawyers in German, we were able to trace the elements of the so-called legal renewal—the “popular” thinking and the anti-liberal, discriminatory, and racist legal theories—that occurred in Hungary. Both the Hungarian and the German project teams explored, on the basis of the surviving sources and the literature of the time, whether there was a national discourse on these issues and, if so, what arguments the representatives of each viewpoint used to support their opinions. In this way, we attempted to show whether these were parallel developments or, rather, conscious influences and appropriations, with specific national variations.In the context of the second topic, which explored the application of law in Hungary, we examined issues such as the dismissal and forced retirement of Jewish judges and prosecutors, the expropriation of Jewish property and Jewish companies, the enforcement of marriage bans and racial protection provisions, and the application of discriminatory laws in criminal and civil courts. The evaluation was mainly based on the documents available in archives in Hungary, which have hardly been examined so far. Although the German project team was not able to participate in this intensive archival work, Schumann’s previous research on the functioning of National Socialist institutions provided a good basis for comparison with the Hungarian project team’s results.As we worked on the third topic, we looked at the cooperation between German and Hungarian lawyers. Besides the aforementioned Working Group on German-Hungarian Legal Relations, there was also intensive contact between the Ministries of Justice of the two countries, especially between 1939 and 1941. During this time, several international conventions were prepared and adopted between Germany and Hungary in the field of civil law and civil procedure. Max Merten, the official in charge of the Reich Ministry of Justice, traveled to Hungary several times to draw up the agreements, and other prominent Nazi jurists were also involved in the negotiations, including Hans Globke, Ministerial Advisor to the Reich Ministry of the Interior and commentator on the Nuremberg Race Laws, as Schumann has shown from the records of the Berlin-Lichterfelde Federal Archives.18 The work of the Committee on Nationality Law of the Academy for German Law, which dealt intensively with the legal status of the German minority in Hungary, was also significant in the field of interaction between German and Hungarian lawyers. In particular, it examined the ways in which and the extent to which this ethnic group could be influenced. In the meantime, in the spirit of intensive “cultural cooperation,” a number of leading German lawyers gave lectures in Hungary, and, mostly with the involvement of the Német Tudományos Intézet [German Scientific Institute] in Budapest, which was founded in 1941, discussions were held with leaders of Hungarian legal bodies and organizations (such as the president of the national bar association, ministers of justice or members of the Budapest Lawyers’ Association). Leading Hungarian lawyers were also invited to speak at NSDAP (Nationalsozialistische Deutsche Arbeiterpartei— National Socialist German Workers’ Party) meetings and forums of the National Socialist Academy for German Law, as traced in the Academy’s journal (Zeitschrift der Akademie für Deutsches Recht).We have reported on our research results mainly at joint conferences. During the preparation phase of the project, the first meeting of the Hungarian project team (“Polgári kori jogintézmények, torzulások és jogkövetkezmények Magyarországon” [Legal institutions, distortions, and legal consequences of the bourgeois era in Hungary]) was held in Pécs on April 26, 2018, with the participation of other Hungarian researchers. Based on hitherto unexplored archival documents, Gábor Schweitzer presented the changes and the operation of the Pécs Bar Association; Eszter Cs. Herger presented the evolution of political and legal perceptions based on the minutes of the annual general meetings of the Pécs Chamber of Notaries; and Veronika Lehotay presented the activities of the Royal Prosecutor’s Office of Miskolc between 1938 and 1945. Patrícia Dominika Niklai dealt with the international legal basis for the establishment of People’s Courts and People’s Prosecutor’s Offices in Hungary in 1945. The proceedings of the conference were published in the journal Díké.19After receiving a grant from the Alexander von Humboldt Foundation, the results of the first year of research were discussed at a two-day conference in September 2019 in Pécs (figs. 1 and 2). The written version of the presentations was also published in Díké.20On October 2, 2020, the Hungarian project team met in the virtual space due to the COVID-19 outbreak. This time, two additional researchers enriched the event: Bernadett Krausz and Péter Heindl. Although we have endeavored to present our research in other national and international events and journals throughout the project, we felt it was important to include written versions of the project conference presentations in the next thematic issue of Díké.21The protracted nature of the epidemic forced us to forgo face-to-face meetings in 2021. It was a pleasure to be able to take advantage of the technical possibilities and report on the results of the third year of research in a hybrid form in Budapest on October 7, 2021, with the involvement of the Institute of Comparative Constitutional Law of the National University of Public Service and the Institute of Law of the Social Sciences Research Centre. Additional researchers (Iván Halász, Zoltán Szente, Róbert Csete, and Bernadett Krausz) joined the presentations of the Pécs and Göttingen project teams that year.22 The written versions of the lectures were again published in Díké, with two new contributions related to the topic of the research project.23In the fourth year of the project, a German-language website presenting the research resources and results was created, and we held our final conference in Göttingen in spring 2023 (fig. 3).The presentations, grouped under five major themes, provided a broad overview of the impact of the National Socialist regime outside Germany,24 the legal relations between the National Socialist regime and the Horthy regime,25 the academic evaluation of National Socialist law,26 the transnational phenomenon of the disenfranchisement of Jews,27 and the National Socialist conception of the German minority and Hungarian minority policy.28 The proceedings of the conference will be published in German and English, and—in order to report to the Hungarian readership of Díké on this gap-filling research—the full proceedings were published in Hungarian translation in Díké too.In 2019, Bernadett Krausz reviewed three Hungarian law journals from the period between the two world wars in their entirety to examine the attitude of Hungarian private lawyers toward the gradual dismantling of the rule of law and the deprivation of rights. Her article was rather short, although she tried to place these scientific writings in a social context. The three periodicals were the Jogtudományi Közlöny [Law Journal], which was temporarily discontinued between 1934 and 1946; Polgári Jog [Civil Law], published between 1925 and 1938; and Magyar Jogi Szemle [Hungarian Legal Review], which was published without interruption between 1920 and 1944. She concluded that the only Hungarian private lawyer who dared to criticize—rather cautiously—the new phenomena of private law legislation and jurisprudence during the period under review was Artur Meszlény. Meszlény did not belong to the so-called historical school of law but was a representative of the so-called social private law, with a great sensitivity to social injustices.29 Let us add: all this happened in 1922, at a time when—although the numerus clausus law already marked the main line of the limitation of rights—the depths to which the spirit of Cain’s rule could reach were not yet really apparent.I conclude my report, which has demonstrated mainly how many open questions still await answers in the future using the tools of comparative legal history, with Meszlény’s lines: “Of course, which times are normal and which are not are matters of perception and, importantly, sensitivity. Are they normal today? There are some of us who answer no to it without hesitation. However, the official perception is that they are. Fiat applicatio.”30

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