Last April the news broke that the Austrian government was about to expropriate the building where Adolf Hitler was born with the objective of preventing it from becoming a pilgrimage site for Nazism supporters. All sale offers had been rejected as insufficient by the current owner of the building. The Austrian Parliament passed a special law to carry out the expropriation for fear that the building would fall into the wrong hands.
Fighting ideologies that promote violence is positive and admirable and therefore we could not agree more with the intended purpose of the Austrian government. The problem does not lie in the objective but in the means used to achieve it. Through those means the Austrian government is paying an unintentional and paradoxical homage to some of the legal and economic principles of National Socialism.
We could summarize the situation as follows: 1º. The Austrian government takes a decision that places the public good (avoiding the propagation of National Socialism) above individual interests (those of the current owner). 2º. This implies taking control of some specific economic resources (the building) whose use will be determined by the government. 3º A law is passed that provides legal cover for the decision adopted.
The economic and legal philosophy of National Socialism shared these three elements. In the first place, German Fascism was a declared enemy of individualism. Paul Lensch, one of its intellectual forefathers, stated in Three Years of World Revolution that Socialism had to oppose individualism deliberately and firmly. The philosophy of German Fascism was expressed in the slogan “the common good is more important that the private good”. Hitler himself said that “the individual cannot be the center of the work of the law, but the people”.
As a result of this anti-individualist philosophy, this form of totalitarianism established an economic system known as corporatism: the economy was directed by the government, with a compulsory participation of businessmen and unions, organized through a regional system of “economic chambers”. In this system the economic objectives and the allocation of resources were determined and monitored by the government.
Finally, the concept of law in National Socialism was directly influenced by Carl Schmitt’s legal theory of decisionism. According to decisionism the making of the law depends on a political decision devoid of normative content. This does not mean the absence of values and rules in political life but rather the conviction that these cannot be chosen among different alternatives through a process of rational deliberation but they have to be chosen and interpreted by those who wield political power. This means that legal norms may be modified at any time and they do not have any other rationale that the will of those in power.
Of course, the decision adopted by the Austrian government does not follow Schmitt’s harsh philosophy but the scientistic version of Hans Kelsen. According to this legal scholar:
A legal norm is not valid because it has a certain content […] but because it is created in a certain way- ultimately in a way determined by a presupposed basic norm […] Therefore any kind of content might be law. There is no human behavior which, as such, is excluded from being the content of a legal norm.[i]
Notwithstanding the worthiness of the goal, the means used by the Austrian government (the passing of a new law to expropriate an individual in the pursuit of the common good) are perfectly compatible with the ideas of German totalitarianism. By recognizing the State as the sole interpreter of the common good endowed with the capacity of modifying law at will and of disposing of citizens’ property as it sees fit, we are accepting a situation of submission and dependence of individuals to the political authority.
Not that long ago private property was seen as an absolute right that could not be modified, violated or eliminated by public authority. This sacred conception of private property was one of the main weapons of common people against despotism and the abuses of those in power. It is said that on one occasion Frederick the Great, king of Prussia, wanted to acquire a miller’s property, located near his palace. Faced with the miller’s constant refusal to sell Frederick threatened to issue a decree of expropriation. The miller sued the king and won the case, keeping his property.
If the Austrian government really wants to prevent homages to despots and tyrants like Adolf Hitler it should follow the miller’s example and consider the defense of private property as an essential element for the maintenance of freedom and justice.
[i] Hans Kelsen, Pure Theory of Law (Clark, New Jersey: The Lawbook Exchange, 2005) p. 198.