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Natural law v Positivism Assignment

LLB JURISPRUDENCE COURSEWORK
‘Much of the law enacted by Hitler’s Third Reich was not valid law’
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This paper will set out to demonstrate that the laws enacted under Adolf Hitler’s Third Reich were
laws at the period they were made and implemented
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We will also discuss the definition of what is a
law and critique Fuller’s theory, who identified eight ways how a legal system can fail
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It will be argued that the immorality of an act should never be the decisive factor in
viewing that a law is not law, since the appropriateness of a moral sanction does not entail the
appropriateness of a legal sanction
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It was very fragmented politically, which was one of the reasons Hitler was
able to gain so much power
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This was a gradual
process by which the Nazi leadership, with support from the majority of German people, moved the
nation from a democracy to a dictatorship
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Between 1933 and 1945, the Nazi leadership imposed legislation that violated a substantive
understanding of the rule of law, effectively using the organs of government and World War II to
exercise genocide and ‘fulfil ideological goals of rearmament, military expansion, and racial
purification’
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Further restrictions continued on Jewish businesses and expulsion of

1

United States Holocaust Memorial Museum (2011), Law, Justice and the Holocaust (Holocaust Encyclopedia, Washington DC)
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ushmm
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php?ModuleId=10007887 [Accessed 01/12/2011]

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Natural law v Positivism Assignment

Jewish children attending school
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Although the main perpetrators are well known, the Holocaust could not have happened without
lawyers, in particular judges, and other professions throughout German society, whose individual
actions gave Hitler’s acts their legal veneer
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When Hitler came to power, he promised to restore judges' authority and shield them from criticism
even as he curtailed their independence and instituted reeducation programs designed to indoctrinate
jurists in the ideological goals of the party
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Instead, most not only upheld the law but also interpreted it in broad and far-reaching ways
that facilitated, the Nazis' ability to carry out their agenda
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‘Although the legal shell of the Rechtsstaat and bare shell of the process was maintained, law in the
Third Reich had indeed simply one amongst many means for the political application of the
Fuhrerprinzip and Nazi ideology
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There still remained a
constitution throughout this period, which had been in place since the 1920s
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’5 Dr Werner Best explained that ‘as long as the police carried
out the will of leadership, it was acting legally’
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Positivists have argued that if the legal

actors at the time could validly believe they were acting within the legal system, then by this virtue,
they were
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His form of analysis leaves us to disapprove
the Nazi’s on a moral and political level, but not a legal one and for the purposes of this essay on a
positivism stance, the law was valid
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Ibid
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5
William L Shirer, The Rise and Fall of the Third Reich (London: Pan Books 1964) 337
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Natural law v Positivism Assignment

Professor Hart is the leading authority on positivist theory
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7 Hart explains the world as it is/was and describes how humans actually reacted to the
regime
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He defends law as a concept by
explaining away the evil it can do
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John Locke argues that a magistrates concern is with law and order and not with saving men from sin
and that a man will follow his own path at the first opportunity and as a man’s morality is a personal
issue it will come from within
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However this right would surely be jeopardised if morality were enforced legally?
Additionally in 1959, the Wolfenden Committee, with the influence of John Stuart Mill considered the
legal enforcement of morality, that there must be a balance between an individual’s freedom of choice
versus the more vulnerable members of societies right to be protected
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The idea of natural law takes a more wider context, that ‘the gross abuse of the power in terms of
genocide and persecution of opposition tempts one to conclude that law under Nazi Germany must be
considered unjust and questions whether it was really law at all’
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The three main
components are: universality and immutability (i
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for everybody); standing as a ‘higher’ law; and
discoverability by reason (rationalise society and human behaviour)
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Many
people often equate this to a religious doctrine and/or morality and ethics
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Natural law theorists agree, stating that there were so

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HLA Hart, The Concept of Law (Clarendon press, Oxford 1961) 43
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9
Chin Liew Ten, Crime and Immorality, (1969) 32 Modern Law Review 650
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11
The Wolfenden Report, section 13
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Natural law v Positivism Assignment

many flaws in the Nazi regime that it could not be said to be a legal system at all and Nazis should be
seen as an aberration rather than normality
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13 This feeling of reprobation should be felt, argues Devlin, by the standard of the
reasonable man
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Furthermore, if morals and laws are so inherently linked
as Devlin and naturalists state, yet if morality cannot be defined, then how are we to conclude that the
laws enacted during the Third Reich were unlawful?
Fuller inherently disagrees with positivism, who was a writer during the Nazi period, focusing on how
the Nazi’s made laws and an internal morality
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Hitler demanded personal
allegiance from the military and judges, whom knew that if they did not conform might be subjected
to the same sanction as the victims of the Holocaust
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For Fuller, most, if not all of the eight ways a
legal system fails, categorised the Nazi system
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Ironically, Hitler was aiming for a racial purity and shared

Germanic volk vision, which could be viewed as naturalistic
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If the objectives of his ideas were on a religious aspect then does that mean his actions were
legal, even moral?
It is important to remember that much of the law in the Third Reich was not in fact much different
from that found in other states eg traffic regulations and marriage laws
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Lon Fuller, Morality of Law (Yale University Press, New Haven 1969) 33-41
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15

He further states that the principled concept of ‘injustice’ is

necessary
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Most legal systems throughout the world have failed if we take Fuller’s criteria
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After the collapse of the Third Reich, post-war German authorities and international jurisdictions were
left with disentangling some of the consequences of Nazi legal administration
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This was the first international trial making a moral judgment
on Germany, which appeals to natural law ideals
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It was viewed that if we had relied on German law or the Stalin type
solution, this would have been inappropriate justice
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One of the criticisms levelled at such systems is that they are victors justice
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It
seems clear that the ‘Nazi period presented individual judges with intense personal and ethical
dilemmas and while it is easy to condemn them in retrospect, oversimplifying their circumstances and
declaring moral absolutes from a safe historical distance, it is more useful to examine critically and
objectively the pressures they faced’
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19 In the first case20 it was argued that her action in informing upon her husband was not only
lawful at the time but ‘actually encouraged by some elements of the State, and so the question of

15

Penner, McCoubrey & White’s Textbook on Jurisprudence (n 4)
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C
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17
Penner, McCoubrey & White’s Textbook on Jurisprudence (n 4) 92
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19
Penner, McCoubrey & White’s Textbook on Jurisprudence (n 4) 245
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Natural law v Positivism Assignment

retrospective criminalisation is also implicitly raised’
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‘This has some affinities with natural law procedure advanced by Fuller and sets
out one important aspect of the idea of ‘injustice’ in the need for the correct application of states
law
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23
‘Some of the laws were cruel and arbitrary in their substance and subjected to a degree of political
interference, which denied all effective procedural guarantees
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Unlike most genocide events that come from anarchy, the Nazi system was developed, systemic and
well executed subversion of a legal order
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On this basis, the Nazi legal system could be viewed as successful, as Hitler’s objectives
were met and statutes gave a certainty at a time of instability albeit corrupt
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However, we should not take into account
morality, as it blurs the distinction between law and morals, and who is to decide what morals are
correct
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It is through studying the
‘actions of the ambivalent, conflicted, and ordinary individuals that the realities of ethical struggle
become accessible’
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21

Penner, McCoubrey & White’s Textbook on Jurisprudence (n 19)
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23
[1976] AC 249
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25
United States Holocaust Memorial Museum, Law, Justice and the Holocaust (n 1)
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I have read and fully
understood the provisions relating to unfair practices (including plagiarism) as cited on the VLE
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Devlin P (1965), The Enforcement of Morals (Oxford University Press, Oxford)
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Fuller, L (1969), Morality of Law (Yale University Press, New Haven)
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Hart HLA (1961), The Concept of Law (Clarendon press, Oxford)
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Mitchell B (1967), Law, Morality and Religion in a Secular Society (Oxford University Press,
London)
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Shirer WL (1964), The Rise and Fall of the Third Reich (London: Pan Books)
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Rostow EV, ‘The Enforcement of Morals Cambridge Law’, [1960] Journal 174
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Case Law:
Gilleck v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (HL)
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R v R [1992] 1 A
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599
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Available from http://plato
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edu/archives/fall2009/entries/legal-positivism [Accessed
01/12/2011]
United States Holocaust Memorial Museum (2011), Law, Justice and the Holocaust (Holocaust
Encyclopedia, Washington DC)
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ushmm
...
php?ModuleId=10007887 [Accessed 01/12/2011]
LexisNexis

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