In August 1945, Karl Loewenstein began work as senior expert advisor to the Legal Division of American Military Government (AMG) in Berlin. An eminent German-born and educated political scientist and jurisprudent, Loewenstein had come to assist in the “democratization” of his homeland's Nazified law and legal institutions. It was soon obvious, however, that in its crucial first phase the American legal mission in Germany was in disarray. The development and implementation of American law reform policy was being undercut by ill-prepared leadership, poor planning, and the scarcity of learning about German laws, lawyers, and legal history. By Loewenstein's reckoning, many American officers had been “set to work on problems of which they have not the slightest idea and very little professional qualification.” Critical law reform initiatives had been based upon expedient “over-simplifications” of Nazism and its eradication. By January 1946, his initial misgivings having given way to mordant despair, Loewenstein concluded that the American program for the democratization of the German legal system was irrevocably “lost,” a “failure which stinks to high heaven.” This article sets forth the theoretical and observational bases of Loewenstein's assessment and evaluates its cogency.
(Online publication February 14 2011)
R.W. Kostal is professor of law and history at The University of Western Ontario in London, Ontario <[email protected]>. He thanks Carl Landauer, Markus Lang, Frank Schumacher, Donald Kommers and especially his colleague Eli Nathans for the time and expertise they contributed to this study. He also gratefully acknowledges his peer reviewers for their courteous and valuable critical suggestions and remarks. The archival research underlying the article could not have been completed without the backing of Dr. Ted Hewitt and the Academic Development Fund of The University of Western Ontario. Finally, the author acknowledges the unflagging support of LHR's remarkable Editor, David Tanenhaus. In the completion of this essay, the author has drawn from research for his forthcoming book with Harvard University Press, Laying Down the Law: The United States and the Legal Reconstruction of Germany and Japan, 1945–1952.