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Prof. Mcilwain Hits Nazi Despotism; Sees Constitutionalism Only Alternative

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Condemnation of the Nazi regime for reverting from a system of government by law to despotism is voiced by C. H. McIlwain, Eaton professor of Science of Government at Harvard, in the leading article in the January issue of Foreign Affairs, a quarterly review. The article, “Government by Law,” makes a strong plea for constitutionalism as the only alternative to despotism.

“With a relentlessness that may remind some of us of German methods in the Great War,” he wrotes, “the Nazi leaders have broken with the cultural development of two thousand years and more, with Jewish and Christian morality as well as with Latin law and tradition.

“In all of these,” he continues, “‘racial theory and authorization government found no formulated ideas or generally recognized conceptions of organization.’ So all must go, law must be remade, and a new history written.”

Germany is cited as an outstanding example of a current-day crisis involving a struggle of despotism to overthrow liberalism, democracy and human rights. He sees the world as “now desperately trying to persuade itself that despotism is always benevolent.”

“The amazing thing,” he writes, “is that so large a part of the world seems to have succeeded in the attempt, in the face of examples of confiscation, persecution of religious belief, suppression of press and free speech, and even murder.”

Prof. McIlwain sees the Nazis discarding what they call “the Jewish liberalistic principle” that what was not prohibited was allowed and, instead, making it possible for courts to punish acts not necessarily violating a law but “according to that law the underlying idea of which best fits it.”

Holding this “the repudiation of everything for which Germany has stood since the Thirty Years War,” he finds it hard to understand “the acquiescence of the civilized world. Startling as this repudiation of law is, it seems to have start led nobody….This easy complaisance is the measure of our common danger.”

Seeing constitutionalism as the only alternative to despotism, Prof. McIlwain asserts, “We must choose one or the other. Dr.

Frank (former Reich Commissar of Justice) and the Nazi leaders in Germany have seen these alternatives more clearly than we and they have deliberately made their choice for will against law. Dare we make the same?”

Maintaining that the principles of our law are incompatible with the Nazi ideal, he traces the despotism of Nazism as having arisen because the social dislocation that followed the war forced the people. “faced with the hateful alternative of disorder or despotism,” to choose the latter.

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