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Jurisprudence
An International Journal of Legal and Political Thought
Volume 3, 2012 - Issue 2
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Discussion

A Symposium on Nazi Law

Carolyn Benson
,
Julian FinkDepartment of Philosophy, University of Vienna, Austria. We would like to thank the editors of Jurisprudence for inviting us to edit the present symposium, the anonymous referees for reviewing the submitted articles, and our authors for their contributions. The editing of this symposium was carried out under the ERC Advanced Grant ‘Distortions of Normativity’. We are grateful for the ERC's financial support.
,
Raymond Critch Law and Society Program and Department of Philosophy, Memorial University of Newfoundland, Canada. This paper was completed as part of my work with the European Research Council Advance Grant project on ‘Distortions of Normativity' at the University of Vienna. It benefited greatly from detailed discussion there with Carolyn Benson, Julian Fink and Herlinde Pauer-Studer. It also benefited from a thorough reading by David Fraser as well as the anonymous reviewers and Ruth Massey at Jurisprudence. Thanks are also due to the audience at the ‘Authority, Legality, and Legitimacy' conference, in particular Peter Koller, Thomas Mertens, Liam Murphy and Joseph Raz.
,
Herlinde Pauer-Studer Research for this paper was funded by the ERC Advanced Research Grant ‘Distortions of Normativity'. I owe thanks to several colleagues for their interest in the project and their most valuable feedback. For extensive discussions on the case of the SS judge Konrad Morgen and helpful comments on an earlier version of this paper I would like to thank J David Velleman, who also provided the archive material from the US National Archives. Thanks also to Joan C Tronto for comments on an earlier draft of this paper. Parts of this paper were presented at a conference on ‘Authority, Legality, and Legitimacy' funded by the ERC project ‘Distortions of Normativity' at the University of Vienna in May 2011. I would like to thank the participants of this conference, especially Julian Fink, Klaus Günther, Thomas Mertens, Liam Murphy, Fabienne Peter, Joseph Raz and Kristen Rundle for helpful responses and discussion. I also thank David Dyzenhaus, Veli Mitova, Carolyn Benson, Alexandra Couto and Christoph Hanisch for valuable discussions on the issue of Nazi law. Thanks to Philip Petti for a suggestion as to how to revise the original title of the paper. For historical information and discussions on the SS jurisdiction, and for help with the archive materials, I owe thanks to Christopher Theel. Thanks to Werner Konitzer and Raphael Gross from the Fritz-Bauer-Institut in Frankfurt am Main for motivating my interest in the case of Konrad Morgen and for supporting the search for archive documents on Morgen.
,
David Fraser Professor of Law and Social Theory, University of Nottingham, UK. An earlier version of this paper was presented in May 2011 at the conference ‘Authority, Legality, and Legitimacy' held at the Department of Philosophy and Department of Legal Philosophy, Law of Religion and Culture, University of Vienna. I would like to thank the conference participants for their sometimes charged, but always valuable, comments and criticisms. Thanks also to the anonymous referees and to Kathryn McMahon and Noel Whitty for their insights. All websites accessed 21 September 2012.
,
Kristen Rundle Lecturer, Department of Law, London School of Economics and Political Science, UK. I am indebted to Herlinde Pauer-Studer for the opportunity to participate in the ‘Authority, Legality, and Legitimacy' seminar held in Vienna in May 2011, and to Carolyn Benson and Julian Fink for their feedback on the final draft and for supporting my contribution to the present symposium. Thanks also to Liam Murphy, Joseph Raz, Thomas Mertens, Herlinde Pauer-Studer and David Velleman for interventions that greatly aided my revisions to earlier drafts of this paper.
,
Carolyn Benson
&
Julian FinkDepartment of Philosophy, University of Vienna, Austria. We would like to thank the editors of Jurisprudence for inviting us to edit the present symposium, the anonymous referees for reviewing the submitted articles, and our authors for their contributions. The editing of this symposium was carried out under the ERC Advanced Grant ‘Distortions of Normativity’. We are grateful for the ERC's financial support.
 show all
Pages 341-463 | Published online: 07 May 2015

  • Earlier versions of the five articles comprising this symposium were presented at an ERC-sponsored conference ('Authority, Legality, and Legitimacy') held at the University of Vienna, 19–21 May 2011.
  • By ‘rule of law’ we refer to the political ideal of a form of governance in which laws, lawmaking and adjudication meet certain general criteria, including (but not limited to) the principles that all laws should be prospective, publicised, clear and stable; that the judiciary should remain independent; that courts must be accessible; and that the principles of natural justice ought to be observed. For an elaboration on these principles and a very helpful sketch of the rule of law, see Joseph Raz, ‘The Rule of Law and its Virtue' in The Authority of Law (Oxford University Press, 2nd edn 2009) 210. See also earlier interpretations famously offered by FA Hayek in The Road to Serfdom (Routledge, 2nd edn 2001 [1944]) and AV Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 8th edn 1915) 198.
  • See eg Heinz Hildebrandt, Rechtsfindung im neuen deutschen Staate (Walter de Gruyter, 1935) 27: ‘Liberalism is based on the individual. It views the moral or even economic “freedom” of the individual as an end in itself, a final value' (our translation).
  • See, for example, the lengthy discussion of the liberal era and its emphasis on the freedom of the individual in Ernst Forsthoff's Der Totale Staat (Hanseatische Verlagsanstalt, 1933) esp 8–28, as well as Otto Koellreutter's more pithy discussion of the liberal Rechtsstaat in Deutsches Verfassungsrecht (Jünker & Dünnhaupt, 3rd edn 1938 [1935]) 14–15. See also Rudolf Huber's Verfassungsrecht der Großdeutschen Reiches (Hanseatische Verlagsanstalt, 2nd edn 1939).
  • Hildebrandt (n 3) 31–32 (our translation).
  • For the distinction between ‘formal’ and ‘informal’ sources of law see, for example, Charles P McDowell, Criminal Justice in the Community (Anderson, 2nd edn 1939) 26 ff.
  • 'The party platform of the NSDAP is a real, and our most important, source of law. Today, it is already valid law and dominates and penetrates in different but always effective forms the entire activity of all German preservers of the law [Rechtswahrer], the lawmakers and the law-interpreting… judges,… the attorneys, and the legal scientists and tutors.' Carl Schmitt, ‘Aufgabe und Notwendigkeit des deutschen Rechtsstandes’ (1936) 6 Deutsches Recht. Zentralorgan des National-Sozialistischen Rechtswahrer-bundes 181 (our translation).
  • 'In a community that regards the state as a tool of the National Socialist ideology, the law is the idea and will of the Führer.' Schmitt, ibid, 184 (our translation).
  • The ‘sound perception of the people’ was formally introduced as a criterion in determining the legal status of actions not covered by the existing written law by the ‘Gesetz zur Änderung des Strafgesetzbuchs vom 28. Juni 1935', Art 1, § 2, RGBl I, p 839. Prior to this legislation, though, the importance of ensuring a connection between law and what was thought to be a racially inborn ‘legal conscience’ or ‘legal sense’ on the part of ordinary members of the Blutsgemeinschaft was articulated by various Nazi writers. See eg Hermann Göring, ‘Die Rechtssicherheit als Grundlage der Volksgemeinschaft’ in Hans Frank (ed), Schriften der Akademie für Deutsches Recht (Hanseatische Verlagsanstalt, 1935) esp 9–10, 13–14 (p 13: ‘It is neither the letter of the written law [Gesetz], nor the letter of the law as such [Recht], but the legal sense itself: the conviction that what happens is under all circumstances right, though it may be formed into law in one form today and in another form tomorrow. That is what is eternal: the sensation, the belief and the longing for rightness and justice' (our translation)). See also the treatment of this theme in Helmut Nicolai, Die rassengesetzliche Rechtslehre: Grundzüge einer Nationalsozialistischen Rechtsphilosophie (Verlag Franz Eher Nachf, 1932).
  • Evidence of this can be found in Werner Marckmann and Paul Enterlein, Die Entjudung der deutschen Wirtschaft (Gersbach & Sohn, 1938) 11.
  • See eg Nicolai (n 9) 31–32.
  • Manfred Fauser, ‘Das Gesetz im Führerstaat' (1935) 26 Archiv des öffentlichen Rechts 131–2 (our translation).
  • In his contribution to this symposium ('Evil Law, Evil Lawyers? From the Justice Case to the Torture Memos'), David Fraser discusses the extent to which a sense of legal correctness and a phenomenological experience of justice is always based on—or at least connected to—the prevailing political ideology.
  • HLA Hart, ‘Positivism and the Separation of Law and Morals' (1958) 71 Harvard Law Review 593; Lon L Fuller, ‘Positivism and Fidelity to Law—A Reply to Professor Hart’ (1958) 71 Harvard Law Review 630. The term ‘grudge informer’ in this context refers to people who helped to prosecute, supposedly under Nazi law but ultimately for morally questionable personal motives, those who criticised Hitler or the war. The case discussed in the Hart-Fuller debate concerned in particular a wife who had helped in the prosecution of her own husband, and who was later prosecuted in a postwar West German court for having illegally deprived her husband of his freedom (rechtswidrige Freiheitsberaubung). For more on this example and its philosophical implications, see, in addition to Hart and Fuller above, HO Pappe, ‘On the Validity of Judicial Decisions in the Nazi Era' (1960) 23(3) Modern Law Review 260; David Dyzenhaus, ‘The Grudge Informer Case Revisited' (2008) 83 New York University Law Review 1000; and Thomas Mertens, ‘Radbruch and Hart on the Grudge Informer: A Reconsideration' (2002) 15 Ratio Juris 186.
  • Law and Society Program and Department of Philosophy, Memorial University of Newfoundland, Canada. This paper was completed as part of my work with the European Research Council Advance Grant project on ‘Distortions of Normativity’ at the University of Vienna. It benefited greatly from detailed discussion there with Carolyn Benson, Julian Fink and Herlinde Pauer-Studer. It also benefited from a thorough reading by David Fraser as well as the anonymous reviewers and Ruth Massey at Jurisprudence. Thanks are also due to the audience at the ‘Authority, Legality, and Legitimacy' conference, in particular Peter Koller, Thomas Mertens, Liam Murphy and Joseph Raz.
  • This translation is from Walter Ott and Franziska Buob, 'Did Legal Positivism Render German Jurists Defenceless During the Third Reich?' (1993) 2 Social & Legal Studies 91, quoting (and translating) Radbruch, ‘Gesetzliches Unrecht und übergesetzliches Recht’ in Rechtsphilosophie (Müller, 1999) 211.
  • Ott and Buob, ibid, 91–104 (emphasis in translation); quoting Radbruch (ibid) 211.
  • Hans Kelsen, General Theory of Law and State, Anders Wedberg (trans) (Harvard University Press, 1949).
  • Stanley L Paulson, ‘Lon L Fuller, Gustav Radbruch, and the “Positivist” Theses' (1994) 13 Law and Philosophy 313, 316.
  • Radbruch, Rechtslehre, § 10, p 119, translated in Stanley L Paulson, 'On the Background and Significance of Gustav Radbruch's Post-War Papers' (2006) 26(1) Oxford Journal of Legal Studies 17, 32.
  • Radbruch, Rechtslehre, § 9, p 110, translated in Paulson (n 5) 32.
  • Ibid, § 10, p 119, translated in Paulson (n 5) 32–33.
  • Paulson (n 5) 33.
  • Ibid, 31.
  • Gustav Radbruch, ‘Statutory Lawlessness and Supra-Statutory Law’, Bonnie Litschewski Paulson and Stanley L Paulson (trans) (2006) 26(1) Oxford Journal of Legal Studies 1, 6.
  • Paulson (n 4) 314.
  • Ibid, 342ff.
  • Hans Kelsen, ‘Natural Law Doctrine and Legal Positivism', Wolfgang Herbert Kraus (trans), in Wedberg (n 3).
  • Frank Haldemann, ‘Gustav Radbruch v Hans Kelsen: A Debate on Nazi Law' (2005) 18(2) Ratio Juris 162, 173.
  • Joseph Raz, ‘Kelsen's Theory of the Basic Norm' in The Authority of Law (Oxford University Press, 2nd edn 2009) 122, 131. Raz cites Kelsen's What is Justice? (University of California Press, 1960) 141, 179 ff, 228 ff, 259, 295, and The Pure Theory of Law (2nd edn, 1967) 64 and 221.
  • Hans Kelsen, ‘Natural-Law Doctrine and Science' in What is Justice? (University of California Press, 1957) 137, 140.
  • Ibid, 141.
  • Kelsen (n 3) 5.
  • Judith Shklar, Legalism (Harvard University Press, 1964) 41–42, emphasis added.
  • Otto Koellreutter, Grundris der Allgemeinen Staatslehre (Mohr, 1933) 155–8.
  • Carl Schmitt, On the Three Types of Juristic Thought, Joseph W Bendersky (trans) (Praeger, 2004) 66.
  • Versailles was a particular object of hatred for the Nazis, since it attempted to preserve the European power structure that had existed before the unification and industrialisation of Germany. While this theme resonates throughout Nazi propaganda and literature, the standard reference, even for Nazis, is to Hitler's Mein Kampf (James Vincent Murphy (trans) (Hutchinson, 1939–40) 522 ff).
  • Karl Larenz, Erneuerung der Deutsches Rechts und Rechtsphilosophie (Mohr, 1934) 15, my translation.
  • Ibid, 11, my translation.
  • See Reinhart Höhn, Rechtsgemeinschaft und Volksgemeinschaft (Hanseatische, 1935) 69 ff.
  • See, inter alia, Schmitt (n 21) 75 ff.
  • Larenz (n 23) 40, my translation.
  • While this approach can be seen clearly in the Larenz passage quoted above (at text to n 24), for more on the connection between the Nazi approach to morality and Hegelian ethical thought—albeit with a focus on criminal law where morality has a clear applicability—see Hans Welzel, Naturalismus und Wertphilosophie im Strafrecht (Deutsches Druck, 1935).
  • In one way, this idea has its roots in Montesquieu's claim in The Spirit of the Laws that the political systems of various nations were affected by their climates and geographies, but this irony (that even the Nazis' racial policies were a product of the enlightenment against which they railed) seems to have gone unnoticed by leading Nazi thinkers.
  • Markus Dirk Dubber, 'Judicial Positivism and Hitler's Injustice: Review of Hitler's Injustice by Ingo Müller, Trans Deborah Lucas Schneider' (1993) 93 Columbia Law Review 1807, 1822.
  • Ingo Müller, Hitler's Justice: The Courts of the Third Reich, Deborah Lucas Schneider (trans) (Harvard University Press, 1991) 196.
  • Bernd Rüthers, Carl Schmitt im Dritten Reich: Wissenschaft als Zeitgeist-Verstärkung (Beck, 1990), referenced in Dubber (n 30) 1813 n (my translation).
  • Max Reichert, ‘Rechtswende?' (1926) 55 Juristen Wochenschrift 2791, 2791, emphasis in original, translated and quoted in Ott and Buob (n 1) 96.
  • Ott and Buob (n 1) 94–95.
  • The caveat ‘German’ is necessary because there was a noted difference—perceived as justified at the time and reflected in the records—between the treatment of German Jews and their co-religionists from Eastern Europe. For the importance of the distinction see Udo Beer, ‘The Protection of Jewish Civil Rights in the Weimar Republic: Jewish Self-Defence through Legal Action', Leo Baeck Institute Yearbook, vol 33, issue 1 (1988) 149, 151.
  • These conclusions can be inferred from, but are surprisingly not mentioned in, Beer (ibid) as well as the earlier study by Donald L Niewyk, ‘Jews and the Courts in Weimar Germany’ (1975) 37(2) Jewish Social Studies 99. Niewyk's study is less comprehensive than Beer's and also draws a sunnier conclusion. He focuses only on the number of trials and the number of those that can be said to reflect genuine anti-Semitic animus. However, since his focus is limited to the conclusions of the cases, rather than noting the different verdicts at trial and appeal level, he fails to reach the conclusion I do for understandable methodological reasons. Beer, however, notes time and again that anti-Semitic verdicts reached at trial were overturned on appeal, but fails to appreciate the trial verdicts as evidence of an anti-Semitic judiciary, particularly since the appellate judges of the 1930s were, most likely, the trial judges of the 1920s.
  • NSDAP Hauptarchiv, 1602, quoted in Niewyk (n 36) 105.
  • Müller (n 31) 15–16. Müller goes on to note other instances of this, as when four SA officials were convicted of plotting a coup, but were given 18 months in a fortress due to their noble motives and pure intentions.
  • Ibid, 104.
  • Ibid, 105.
  • Research for this paper was funded by the ERC Advanced Research Grant ‘Distortions of Normativity’. I owe thanks to several colleagues for their interest in the project and their most valuable feedback. For extensive discussions on the case of the SS judge Konrad Morgen and helpful comments on an earlier version of this paper I would like to thank J David Velleman, who also provided the archive material from the US National Archives. Thanks also to Joan C Tronto for comments on an earlier draft of this paper. Parts of this paper were presented at a conference on ‘Authority, Legality, and Legitimacy' funded by the ERC project ‘Distortions of Normativity’ at the University of Vienna in May 2011. I would like to thank the participants of this conference, especially Julian Fink, Klaus Günther, Thomas Mertens, Liam Murphy, Fabienne Peter, Joseph Raz and Kristen Rundle for helpful responses and discussion. I also thank David Dyzenhaus, Veli Mitova, Carolyn Benson, Alexandra Couto and Christoph Hanisch for valuable discussions on the issue of Nazi law. Thanks to Philip Pettit for a suggestion as to how to revise the original title of the paper. For historical information and discussions on the SS jurisdiction, and for help with the archive materials, I owe thanks to Christopher Theel. Thanks to Werner Konitzer and Raphael Gross from the Fritz-Bauer-Institut in Frankfurt am Main for motivating my interest in the case of Konrad Morgen and for supporting the search for archive documents on Morgen.
  • Legal positivism is famous for denying any internal connection between law and morality. Positivists consider law and morality to be distinct normative spheres; the failure of a legal system to meet standards of morality does not amount to a reason to deny it being called ‘law’. This claim finds most vivid expression in Hart's separability thesis, which maintains that it ‘is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so'. HLA Hart, The Concept of Law, with a Postscript edited by Penelope A Bulloch and Joseph Raz (Oxford University Press, 2nd edn 1994) 185, 186. Natural law theorists, on the other hand, argue that legal systems which violate basic demands of justice or morality cannot qualify as genuine law. They are, as Finnis puts it, ‘peripheral’ and ‘watered-down versions’ of the central cases of law. John Finnis, Natural Law and Natural Rights (Oxford University Press, 2011 [1980]) 11. Legal positivism has been repeatedly accused of failing to provide the resources for rebuking bad and evil law. The separability thesis, so the critique goes, does not help us to reach a more substantial judgement than merely declaring that wicked legal systems, though morally deficient, are still legally valid. Natural law theory, on the other hand, faces the objection that, by holding morality to be constitutive of legal validity, it cannot account for the authority and force wicked legal systems still have vis-à-vis their subjects. Though evil, those systems still direct legal norms to persons, demanding compliance by means of state power.
  • See HLA Hart, ‘Positivism and the Separation of Law and Morals' (1958) 71(4) Harvard Law Review 593; Lon L Fuller, ‘Positivism and Fidelity to Law: A Reply to Professor Hart' (1958) 71(4) Harvard Law Review 630.
  • The story of the case runs thus: In 1944 a woman who wanted to get rid of her husband denounced him to the German authorities for making derogatory remarks about Hitler and the Nazi regime. The husband was arrested and sentenced to death, but then sent to the Eastern front. In 1949 the woman was tried by a West German court. The woman pleaded innocence since she had merely reported her husband's violation of Nazi statutes which were legally valid at the time. The court of appeal found the woman guilty. For a recent detailed discussion of the case see David Dyzenhaus, ‘The Grudge Informer Case Revisited' (2008) 83 New York University Law Review 1000. Dyzenhaus argues that Hart fails to depict the complexity of the Grudge Informer Case.
  • See Hart (n 2) 618–21; Fuller (n 2) 652–61. Though Fuller argued that certain branches of Nazi law are ‘so oblivious to the (inner) morality of law that [they are] not entitled to be called law', he actually conceded that with respect to the Grudge Informer Case retroactive legislation was probably the best means to indicate a sharp break with a past evil legal system. Ibid, 661.
  • One example of such a general principle is the principle that no-one should profit from his or her own wrongs. See Ronald Dworkin, Law's Empire (Hart Publishing, 1998 [1986]) 20.
  • Dworkin, ibid, 243.
  • Ibid, 106. In such a case, where no justification for state coercion can be provided, there exists according to Dworkin only law in ‘the preinterpretive sense’. Ibid, 105.
  • Ibid, 105.
  • Ibid, 106.
  • Andrei Marmor, Philosophy of Law (Princeton University Press, 2011) 85.
  • Ibid, 88 fn 5.
  • Nazi legal theorists usually use the term Sittlichkeit for ‘morality’, which was common at the time. Sittlichkeit is not necessarily reduced to Hegel's understanding of the concept, contrasting it with
  • (Kantian) morality.
  • Reinhard Höhn, ‘Volk, Staat und Recht' in Reinhard Höhn, Theodor Maunz and Ernst Swoboda, Grundfragen der Rechtsauffassung (Duncker & Humblot, 1938) 1–27; Reinhard Höhn, Rechtsgemeinschaft und Volksgemeinschaft (Hanseatische Verlagsanstalt, 1935) 49–83; Otto Koellreutter, Deutsches Verfassungsrecht (Junker & Dünnhaupt, 3rd edn 1938); Karl Larenz, Deutsche Rechtserneuerung und Rechtsphilosophie (Mohr, 1934); Karl Larenz, Rechts- und Staatsphilosophie der Gegenwart (Junker & Dünnhaupt, 2nd edn 1935); Ernst Forsthoff, Der totale Staat (Hanseatische Verlagsanstalt, 1933). Forsthoff claims that the liberal state is not able to distinguish between ‘”true—not true, just—unjust, good—evil, ethical—unethical” since liberalism lacks the substance for making such distinctions'. Forsthoff, Der totale Staat, p 4. All citations of the German original texts are translated by Herlinde Pauer-Studer.
  • Höhn, ‘Volk, Staat und Recht' (n 13) 13.
  • Ibid, emphasis in original.
  • Ibid.
  • Ibid, emphasis in original.
  • Ibid.
  • Ibid, emphasis in original.
  • Ibid, 9, emphasis in original
  • Ibid.
  • Ibid.
  • Ibid, 8.
  • Larenz, Deutsche Rechtserneuerung und Rechtsphilosophie (n 13) 5.
  • Ibid, 6.
  • Nazi theorists claim that legal positivism, due to its strict separation of law and morality, was responsible for the ‘ethical disorientation’ of the Weimar Republic.
  • Larenz, Deutsche Rechtserneuerung und Rechtsphilosophie (n 13) 12, emphasis in original. Karl Larenz, for example, considers Kelsen's Reine Rechtslehre to be a document of ‘foreign intellectual infiltration’. Larenz, ibid, 11. Larenz adds that it was the achievement of Carl Schmitt to revive the ‘essence of the political’ and ‘the simple reality of political life’ against the ‘artificial abstractions of the Vienna school’. Larenz, ibid, 18.
  • Larenz, ibid, 9.
  • Walter Hamel, ‘Wesen und Rechtsgrundlagen der Polizei im nationalsozialistischen Staate' in Hans Frank (ed), Deutsches Verwaltungsrecht (Zentralverlag der NSDAP Eher, 1937) 381–8, esp 384. Equally, Koellreutter (n 13) 12 emphasises the connection between ethics, law and community. Cf also Ulrich Scheuner, ‘Die Rechtstellung der Persönlichkeit in der Gemeinschaft’ in Frank, Deutsches Verwaltungsrecht, 82–98.
  • Koellreutter (n 13) 11. According to Koellreutter the Nazi racial laws belong to the constitution of the Third Reich.
  • Höhn, ‘Volk, Staat und Recht' (n 13) 8 (emphasis in original).
  • Koellreutter (n 13) 56.
  • Larenz, Deutsche Rechtserneuerung und Rechtsphilosophie (n 13) 5, 6. By ‘utilitarianism’ Larenz obviously means a self-interest based theory of morality.
  • Immanuel Kant, ‘Metaphysical First Principles of the Doctrine of Right' in The Metaphysics of Morals, Mary Gregor (ed) (Cambridge University Press, 1991) 31, 6:239.
  • According to Kant, it is of ethical value if citizens recognise the norms of the state and feel committed to ethical juridical duties, but it is not something the state can require citizens to do. This does not mean that Kant excludes all intentional and internal elements of morality from the sphere of law. A good discussion of the point can be found in Allen D Rosen, Kant's Theory of Justice (Cornell University Press, 1993) 85 f.
  • Larenz, Rechts- und Staatsphilosophie der Gegenwart (n 13) 157, 158.
  • See eg Hans Mommsen, Beamtentum im Dritten Reich. Mit ausgewählten Quellen zur nationalsozialistischen Beamtenpolitik (Deutsche Verlagsanstalt, 1966).
  • The introduction of the SS jurisdiction was officially announced in the Reichsgesetzblatt, RGBl 1939 I, pp 2107 f. In addition, two executive orders for the special SS jurisdiction were issued: the first one was announced on 1 November 1939 (RGBl 1939 I, pp 2293–96), and the second on 17 April 1940 (RGBl 1940 I, p 659 f). The announcement of the special SS court system in the RGBl and the two executive orders are reprinted in Bianca Vieregge, Die Gerichtsbarkeit einer ‘Elite’. Nationalsozialistische Rechtsprechung am Beispiel der SS- und Polizeigerichtsbarkeit (Nomos, 2002) 247–54. Before the implementation of the special SS jurisdiction, SS members serving in combat were subject to the military criminal law, and members of the General SS were subject to the German Penal Code of 1871 (Deutsches Strafgesetzbuch 1871).
  • As early as June 1939 Hitler had approved the establishment of a special criminal system for SS members. See Lothar Gruchmann, Justiz im Dritten Reich 1933–1940. Anpassung und Unterwerfung in der Ära Gürtner (R Oldenbourg, 1988) 654; see also Vieregge (n 38) 14; Bernd Wegner, Hitlers Politische Soldaten: Die Waffen-SS 1933–1945 (Schöningh, 5th edn 1997) 321. In the early years of the Nazi regime civil courts had prosecuted SS men for criminal offences against concentration camp inmates. The introduction of the SS and police court system gave Himmler the opportunity to reduce the competences of the general criminal courts and to expand the competence of the SS.
  • In 1944 there existed 29 SS and police courts. See Hans Buchheim, ‘The SS—Instrument of Domination’ in Helmut Krausnick, Hans Buchheim, Martin Broszat and Hans Adolf Jacobsen, Anatomy of the SS-State (Walker and Co, 1968) 252. The organisational centre and central authority of the SS and police judicial system was the Head Office SS Court in Munich, which consisted of several administrative units responsible for legal politics, management of personal and disciplinary matters of the judges, enforcement and execution of sentences, and a unit for the surveillance of the entire SS jurisdiction system. At the Head Office in Munich a Supreme SS and Police Court was also erected, which consisted of five judges: two main judges and three laymen. The main court authorities, usually the Higher SS and Police Leaders, could initiate inquiries and then set up courts to prosecute offences.
  • Vieregge (n 38) 47.
  • Formally Hitler himself was the highest court authority, but he had delegated the authority to Himmler. See Buchheim (n 40) 252, 253; Vieregge (n 38) 37–40. Since the indictments of the SS jurisdiction were not publicised, Himmler could control and uphold the public image of the SS.
  • A striking case is that of Max Täubner. See Yehoshua Robert Büchler, ‘“Unworthy Behavior”: The Case of SS Officer Max Täubner' (2003) 17(3) Holocaust and Genocide Studies 409.
  • Though there existed plans for a specific codification of SS law, this was never realised. See Vieregge (n 38) 84. Hitler in particular had reservations about any codification of law. For example, in 1939 he stopped the criminal law reform on which Nazi legal theorists had worked for several years.
  • In an article on the education of young SS men published in the regular memoranda of the SS Court Head Office, it is emphasised that education within the SS has to be ‘tackled from the ethical side’. The text states: ‘The SS man must not be educated in such a manner that he follows orders merely out of fear of punishment, but in such a way that he gradually comes to the point of fulfilling his duties out of a voluntary commitment resting on a deep conviction.' See Zur Erziehung und Belehrung von SS-Rekruten Mitteilungen des Hauptamts SS-Gericht 1942, Band II, Heft 3, 85 (Published Memoranda of the SS Court Head Office, US National Archives, Record Group 242, Microfilm T175A, Roll 3).
  • Often SS members were tried by the special SS jurisdiction for violations of racial laws. See James J Weingartner, ‘Law and Justice in the Nazi SS’ (1983) XVI Central European History 280. Several passages in the Nuremberg interrogations of Konrad Morgen also confirm how central the racial law regulations were to the SS ethos and the SS jurisdiction. Morgen himself considered accusations against SS members for sexual intercourse with non-German women as simply ‘crazy’. See MIS Nuremberg Interrogation of Konrad Morgen, 15 October 1947, pp 327, 328, in MIS Main Interrogation Series, Interrogation Records Prepared for War Crimes Proceedings at Nuremberg 1945–1947 (US National Archives, Record Group 238, Microfilm 1019, Roll 47).
  • This is confirmed by Himmler's notorious Posen speech in 1943.
  • The appeal to an idea of law beyond positive law contributed to a radicalisation of the SS jurisdiction. Several violations, such as racial law offences, were sentenced within the SS in a harsher way than in the ordinary jurisdiction. See Vieregge (n 38) 94. See also the testimony of Günther Reinecke, at text to n 55 of this essay.
  • § 92 of the military penal code (§ 92 MStGB) states: ‘(1) Whoever does not follow an order and who thereby intentionally or by negligence causes either a considerable disadvantage, or a danger to human life, or a significant danger to the property of others, or a danger to the security of the Reich or the vigour of the military troops, will be punished by severe detention or imprisonment of up to ten years. (2) If the deed is committed in military combat or constitutes an especially grave case, it can be punished by either the death penalty or lifelong arrest' (translation by Herlinde Pauer-Studer). For the German original see Vieregge (n 38) 96 fn 162.
  • Since 1931 there existed specific regulations concerning the marriage of SS men. SS men had to apply for permission to marry; the future wife had to qualify as ‘racially pure and sane’. With the introduction of the SS jurisdiction violations of those regulations were classified as criminal deeds.
  • Vieregge (n 38) 68, 95.
  • Franz Breithaupt, ‘An die Führer der SS und Polizei', Mitteilungen Hauptamt SS-Gericht, Band II, Heft 3, 1942 (US National Archives Microfilm). Franz Breithaupt was Chief of the SS Head Office from 1942 to 1945. According to a directive from Himmler dated 1 August 1942, the chief of the main office of the SS court system who was also proxy to Himmler had to be a military person, not a jurist. Mitteilungen Hauptamt SS-Gericht, Band II, Heft 5, 1942, 138. See also Vieregge (n 38) 41 ff; Wegner (n 39) 324.
  • Bericht über die Dienstbesprechung der Chefs der SS- und Polizeigerichte am 7. Mai 1943 in München (Bundesarchiv Berlin-Lichterfelde, formerly Berlin Document Center, NS 7/13, Blatt 13–21).
  • Weingartner (n 46) 280.
  • Günther Reinecke, Witness Testimony, IMT International Military Tribunal Trial against Major War Criminals in Nuremberg, 6–7 August 1946, ‘Blue Series', Volume XX, pp 415–82, here: p 429 (original is in English). Note that Reinecke gave this testimony with a straight face at a time when historical evidence had clearly debunked the SS ethos as utter ideological illusion. Reinecke even claimed: ‘The SS, from the beginning of its formation, fought against crime on principle and at all costs, and it had a perfectly orderly administration of justice.' Günther Reinecke, Witness Testimony, International Military Tribunal Trial, 6 August 1946, p 427. This orderly administration of justice in the SS was guaranteed according to Reinecke by the so-called disciplinary law, which forced members who committed punishable acts to leave the SS. Ibid, 428.
  • This was confirmed by Günther Reinecke in his witness testimony at the International Military Tribunal Trial in Nuremberg. Reinecke stated: ‘Neither I nor the other SS judges had special training at special schools. The SS judges came from positions in the legal profession and were before the war high-ranking legal personalities, public prosecutors or lawyers, or some of them were transferred from the courts of the Wehrmacht to courts of the SS.' Günther Reinecke, Witness Testimony, International Military Tribunal Trial, 6 August 1946, p 416.
  • The primary reason for his entering the NSDAP seems to have been to promote his career. In the interrogations after the war Morgen claimed that his parents, particularly his mother, urged him to join the Nazi party. See MIS Interrogation of Konrad Morgen, Nuremberg, 30 August 1946, p 1, MIS, Main Interrogations Series. ‘Interrogation Records Prepared for War Crimes Proceedings at Nuremberg 1945–1947' (US National Archives, Record Group 238, Microfilm 1019, Roll 47). The MIS Nuremberg interrogations of Konrad Morgen are (with one exception) in German; Morgen's quotes are translated into English by Herlinde Pauer-Studer.
  • Konrad Morgen, Kriegspropaganda und Kriegsverhütung (Universitätsverlag von Robert Noske, 1936). Morgen's dissertation displays an interest in International Law and supports the possibility of promoting peace through transnational agreements and contracts.
  • During one of the interrogations in Nuremberg, Morgen described the details of the case. The defendant was a schoolteacher who was accused of illegal excessive corporal punishment. During the trial, in which Morgen was one of the assisting judges, he gained the impression that all evidence in favour of the defendant had been dismissed by the presiding judge. Morgen suspected that the defendant was being treated unfairly because he was not a member of the Nazi party and that the Hitler Youth had somehow initiated the proceedings. Morgen refused to consent to the verdict, causing a scandal and his removal as a judge. MIS Nuremberg Interrogation of Konrad Morgen, Nuremberg, 30 August 1946, p 3. Morgen then worked as legal advisor to the German Labour Force (Deutsche Arbeitsfront), an organisation representing labourers in court proceedings with respect to salary and vacation disputes.
  • A prominent case was that of Georg V Sauberzweig, who was sentenced to death following Morgen's investigations of grand-scale corruption in the Generalgouvernement. Morgen issued a warrant of arrest (Haftbefehl) against Sauberzweig on 22 March 1941 for plundering. On 18 August 1941 Sauberzweig was sentenced to death by a court in Cracow for plundering and embezzlement. Morgen was the prosecuting judge (Anklagevertreter). The death sentence was confirmed by Hitler on 9 March 1942, and Sauberzweig was executed on the same day in Cracow. All relevant documents are part of the SS officer file, Georg V Sauberzweig (Bundesarchiv Berlin-Lichterfelde SSO/SS/Sauberzweig, Georg V, VBS 286 Nr 64 000 38 174). The documents confirm what Morgen reported about the Sauberzweig case in his post-war interrogations by the Americans.
  • Especially strained were relations between Morgen and the chief of the Reich's Main Economic and Administrative Office (WVHA), Oswald Pohl. Pohl, who was himself involved in corruption, was eager to protect SS members against Morgen's investigations. See MIS Nuremberg Interrogation of Konrad Morgen, 30 August 1946, pp 7, 8, 9, 11, 12; see also MIS Nuremberg Interrogation of Konrad Morgen, 4 September 1946, p 47. In one of his Nuremberg interrogations Morgen claimed that he learned from the Head Office of the SS Court in Munich that there existed a secret order issued by Himmler to send him to a concentration camp for 2–3 years. Due to interventions by the judges of the SS Court Head Office, who claimed that in this way the independence of a judge would be violated, Himmler decided that Morgen should be sent to the Eastern front. See MIS Nuremberg Interrogation of Konrad Morgen, 30 August 1946, p 19.
  • See MIS Nuremberg Interrogation of Konrad Morgen, 4 September 1946, p 5. Morgen now held a double position: he was still an SS judge, but he was also a member of the Criminal police, enabling him to investigate civilians as well as members of the Waffen-SS and police. The reason for Morgen's rehabilitation was that Himmler intended to fight the enormous corruption in the concentration camps..
  • See Affidavit SS-64, made by SS judge Werner Paulmann to the IMT, 11 July 1946 (quote translated into English by Herlinde Pauer-Studer). Document SS-64, ‘Blue Series’, Volume XLII, pp 543–50. Paulmann claimed that he as the chief judge of the SS Court in Kassel arrested Koch. See Affidavit SS-64, p 545. Koch's wife Ilse and the SS camp guard Sommers were also arrested. The accusations against Koch's wife were profiting from her husband's embezzlements and cruelty against concentration camp prisoners. Sommers was accused of illegal killings.
  • Morgen claimed in the Interrogations in Nuremberg that at the turn of 1943/4 or in the spring of 1944 he learned about the mass extermination of Jews. MIS Nuremberg Interrogation of Konrad Morgen, 4 September 1946, p 29.
  • On 3 and 4 November 1943, 42,000 Jews were shot in the Lublin camp and the nearby Poniatowa camp.
  • See MIS Nuremberg Interrogation of Konrad Morgen, 30 August 1946; see also Interrogation of Konrad Morgen, Nuremberg, 16 September 1946. Morgen claimed that he was imprisoned by Czechs and that he had to hand over all court documents (except the copy of the bill of indictment against Koch) to the Czechs. He managed to escape and return to Frankfurt am Main.
  • Morgen testified on behalf of the SS at the International Military Tribunal Trial against the Major War Criminals in Nuremberg (IMT trial). His testimony was on the question whether the SS should be indicted as a criminal organisation. He was also interrogated in connection with several of the American Military Tribunal trials. Morgen was a witness in the trial of Pohl, chief of the Main Economic and Administrative Office, and that of Waldeck, the Higher SS and Police Leader in Kassel. Morgen was a prominent witness—this time for the prosecution—in the Auschwitz trial in Frankfurt am Main, which took place between December 1963 and August 1965.
  • See Konrad Morgen, Witness testimony in the International Military Tribunal Trial, Nuremberg, 7 August 1946, p 489, in Konrad Morgen's IMT Testimony, 7–8 August 1946, ‘Blue Series’, Volume XX, pp 487–515. Morgen's pretentious claim that he himself ordered that the two concentration camp commandants be shot after being tried is clearly false with respect to Koch. Koch was sentenced to death at the trial in Weimar in September 1944, but he was executed only at the beginning of April 1945, one week before the Americans liberated the Buchenwald concentration camp on 11 April 1945. The order to shoot Koch came from Waldeck, the Higher SS and Police Leader in Kassel who had in recent weeks also gained the authority to manage Buchenwald. At that time Morgen was far away from Buchenwald. Waldeck's motives for ordering Koch to be executed remain open; probably he was attempting to improve his reputation and standing vis-à-vis the Americans.
  • On 17 August 1944 Morgen authored a bill of indictment against the former commandant of Buchenwald, Karl Otto Koch, the camp physician, Dr Waldemar Hoven, Koch's wife, Ilse Koch, and the camp guard, Sommers. See Konrad Morgen, Anklageverfügung Koch Prien, 17 August 1944, SS and Polizeigericht z.b.V. Dodd Archive uconn_asc_19994–0065_box288_folder7343–7344. The bill of indictment rested on Morgen's extended summary of his investigations, dated 11 April 1944 (= Koch Ermittlungsergebnis dated 11 April 1944, IMT Document NO 2366, US National Archives. Record Group 238, ARC Identifier 597043/MLR Number NM70 174.) After the war Morgen handed over his personal copy of the detailed summary of the result of his investigations against Koch etc, dated 11 April 1944, to the American authorities.
  • MIS Nuremberg Interrogation of Konrad Morgen, 18 January 1947. Morgen claimed that he was told that Himmler intended to send him to a concentration camp. Morgen was severely attacked by Oswald Pohl's legal advisor Schmidt-Klevenow.
  • Konrad Morgen, Letter to the Ministry for Political Liberation Württemberg-Baden (Ministerium für politische Befreiung Württemberg-Baden), 3 January 1950 (quote translated into English by Herlinde Pauer-Studer). Personal Documents of Konrad Morgen, Fritz-Bauer-Institut Frankfurt am Main, pp 2, 3.
  • MIS Nuremberg Interrogation of Konrad Morgen, 4 April 1947, p 290; the passage is in English in the original. The remark was made during an interrogation in Nuremberg in preparation for the American Tribunal trials at a time when the SS had been indicted as a criminal organisation.
  • MIS Nuremberg Interrogation of Konrad Morgen, 21 October 1946, p 129. All of Morgen's interrogations which are in German are translated here by Herlinde Pauer-Studer.
  • MIS Nuremberg Interrogation of Konrad Morgen, 11 October 1946, p 82. Note that this can be merely a descriptive account of the legal situation in the Third Reich.
  • MIS Nuremberg Interrogation of Konrad Morgen, 19 September 1946, pp 73, 74. See also Interrogation of Konrad Morgen, Nuremberg, 11 October 1946, p 82.
  • MIS Nuremberg Interrogation of Konrad Morgen, Witness testimony IMT Trial, 8 August 1946, p 506.
  • MIS Nuremberg Interrogation of Konrad Morgen, Witness testimony, Trial against Oswald Pohl, 22 August 1947, USA vs Pohl et al, NMT Case 4, trial transcript pp 6669–6753, University of Southampton Library MS200/4/13/1–2, pp 6669–6753, here: p 6696. Many years later, during the Auschwitz trial, Morgen repeated the same argument: ‘To do something against Himmler or Hitler, the instigators of those crimes, I would have had to apply for a warrant of arrest against them with Hitler himself or with Himmler himself… this was absolutely impossible.' Konrad Morgen, Witness testimony, Auschwitz Trial, 9 March 1964. The protocol of Morgen's testimony at the Auschwitz trial is documented in written and oral form in Der Auschwitz Prozess. Tonbandmitschnitte, Protokolle, Dokumente, edited by the Fritz-Bauer-Institut, Frankfurt am Main and the Staatlichen Museum Auschwitz-Birkenau.
  • MIS Nuremberg Interrogation of Konrad Morgen, Witness testimony, IMT Trial, 8 August 1946, p 507.
  • Konrad Morgen, Anklagevefügung Koch Prien, 17 August 1944, pp 2, 4 (US National Archives NO 2366). Morgen accused Koch of murder, relying on § 211 German Penal Code (Reichsstrafgesetzbuch 1871).
  • MIS Nuremberg Interrogation of Konrad Morgen, 18 January 1947, p 235.
  • This idea of Morgen having primarily been a judge who just found himself in a ‘special institution’ is also apparent in the way Morgen was introduced as a witness for the prosecution at the Auschwitz trial in Frankfurt. The presiding judge addressed Morgen in the following way: ‘Doctor Morgen, you have been mentioned here repeatedly, as a judge at the SS, as an SS judge who undertook various investigations, not only in Auschwitz, but also in other camps…' ‘Being an SS judge’ amounted, for the presiding judge, to being ‘a judge’ with the marker ‘SS’ simply indicating the particular placement. See Auschwitz Trial, Interrogation of the witness Konrad Morgen, 9 March 1964, 25th day of trial.
  • The term ‘rule of law’ is used in a wide sense here, referring to a legal system which respects human rights, but also lives up to criteria including predictability, publicity, consistency, absence of retroactive legislation, etc.
  • Konrad Morgen, Letter to Hinderfeld, Head Office SS Courts Munich, 27 March 1942 (US National Archives NO 2366).
  • Konrad Morgen, Indictment, English version of the Anklageverfügung, Prien 17 August 1944 (US National Archives NO 2366). The passage is cited according to the original in English. Morgen classified the administering of the camps, violating all moral laws, as military disobedience according to § 92 of the military law.
  • MIS Nuremberg Interrogation of Konrad Morgen, 30 August 1946, p 22.
  • See Auschwitz Trial, Interrogation of the witness Konrad Morgen, 9 March 1964, 25th day of trial.
  • Ibid. Similar incongruities in Morgen's moral judgements occur in his summary of his investigations of Koch (11 April 1944) (US National Archives NO 2366).
  • Morgen claimed to be a ‘fanatic for justice’ (Gerechtigkeitsfanatiker) in MIS Nuremberg Interrogation of Konrad Morgen, 4 September 1946, p 8.
  • See Tamar Schapiro, ‘Compliance, Complicity, and the Nature of Nonideal Conditions' (2003) C(7) Journal of Philosophy 329. As Schapiro points out, there are cases in which ‘others’ wrongdoing can alter the character of what we ourselves are doing' so that something we are doing in light of certain rules can no longer count ‘as an instance of participation in the form of activity defined by the practice rules'. Ibid, 333. According to Schapiro, this is the case when ‘conformity with the practice rules is no longer sufficient to [ensure] constitutive success; that is the fact that your action is chosen in accordance with the practice rules is no longer sufficient to make it count as participation in the form of activity that is, ideally, defined by those rules.' Ibid, 339.
  • Konrad Morgen, Short remarks to the bill of indictment against Standartenführer Koch, part of document file NO 2366, p 3, 10/11/10.
  • In his groundbreaking article ‘Gesetzliches Unrecht und übergesetzliches Recht’ (1946) Radbruch claimed: ‘Positivism, with its thesis that “law is law”, has indeed rendered the German judiciary defenceless against laws with arbitrary or criminal content.' See Gustav Radbruch, ‘Gesetzliches Unrecht und übergesetzliches Recht’ in Süddeutsche Juristen-Zeitung (1946); reprinted in Radbruch, Gesetzliches Unrecht und übergesetzliches Recht (Nomos, 2002) 10 (translated by Herlinde Pauer-Studer).
  • See J David Velleman, How We Get Along (Cambridge University Press, 2009) 154.
  • For an exploration of this point see Herlinde Pauer-Studer and J David Velleman, ‘Distortions of Normativity’ (2011) 14(3) Ethical Theory and Moral Practice 329.
  • This is exactly one of Hannah Arendt's main points in her Eichmann book and her respective essays on morality in the Third Reich. See Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin, 1994); ‘Some Questions of Moral Philosophy’ in Responsibility and Judgment, edited with an introduction by Jerome Kohn (Schocken, 2003) 49–146; ‘Personal Responsibility under Dictatorship’ in Responsibility and Judgment, 17–48.
  • A theory of legality which follows such a line has recently been suggested by Scott Shapiro: see Legality (Belknap Press of Harvard University Press, 2011) 195. Shapiro tries to give a non-moralising account of legality by comparing the design of a legal system with developing a social plan. Law-giving is, Shapiro claims, a form of social planning; laws are plans (ibid, 195). Shapiro's main argument as to why law should not be moralised is that doing so would defeat law's first and foremost function, namely to settle moral issues. Since law should be a means to solve moral problems, law should appeal only to social facts, not moral facts.
  • See Lon L Fuller, The Morality of Law (Yale University Press, rev edn 1969) 39–41.
  • Professor of Law and Social Theory, University of Nottingham, UK. An earlier version of this paper was presented in May 2011 at the conference ‘Authority, Legality, and Legitimacy' held at the Department of Philosophy and Department of Legal Philosophy, Law of Religion and Culture, University of Vienna. I would like to thank the conference participants for their sometimes charged, but always valuable, comments and criticisms. Thanks also to the anonymous referees and to Kathryn McMahon and Noel Whitty for their insights. All websites accessed 21 September 2012.
  • David Fraser, Law After Auschwitz: Towards a Jurisprudence of the Holocaust (Carolina Academic Press, 2005).
  • US v Josef Alstoetter et al, Trials of War Criminals Before the Nuernberg Military Tribunals, Vol III, ‘The Justice Case’ (hereinafter Alstoetter) (United States Government Printing Office, 1951); David Cole (ed), The Torture Memos: Rationalizing the Unthinkable (The New Press, 2009).
  • HLA Hart, The Concept of Law (Oxford University Press, 1961).
  • HLA Hart, ‘Positivism and the Separation of Law and Morals' (1958) 71 Harvard Law Review 593; Lon L Fuller, ‘Positivism and Fidelity to Law—A Reply to Professor Hart’ (1958) 71 Harvard Law Review 630.
  • 83(4) NYU Law Review, ‘Fifty Years Later’; Peter Cane (ed), The Hart-Fuller Debate in the Twenty-First Century: 50 Years On (Hart Publishing, 2010).
  • David Dyzenhaus, Hard Cases in Wicked Legal Systems: Pathologies of Legality (Oxford University Press, 2nd edn 2010).
  • Jörg Kammerhofer and Jean D'Aspremont, ‘Introduction: Mapping 21st Century International Legal Positivism' (24 November 2010) in Jean d'Aspremont and Jörg Kammerhofer (eds), International Legal Positivism in a Post-Modern World, forthcoming, http://ssrn.com/abstract=1707986; (2011) 12(2) German Law Journal, ‘Special Issue: The Many Fates of Legal Positivism', 599.
  • Alexander Somek, ‘The Spirit of Legal Positivism' (2011) 12(2) German Law Journal 729.
  • Hart (n 3) vi.
  • Stanley Fish, ‘Is there a Text in this Class?' in Is there a Text in this Class? (Harvard University Press, 1980) 303, 306.
  • See generally Nicholas Schmidle, ‘Getting Bin Laden' The New Yorker, 8 August 2011.
  • Claire Finkelstein, Jens David Ohlin and Andrew Altman (eds), Targeted Killings: Law and Morality in an Asymmetrical World (Oxford University Press, 2012).
  • ‘Obama's Remarks on bin Laden's Killing’ New York Times, 2 May 2011.
  • Sustaining US Global Leadership: Priorities for 21st Century Defense, Department of Defense, January 2012.
  • The Trial of Adolf Eichmann: Record of Proceedings in the District Court of Jerusalem (State Archives of Israel, 1993); Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Viking, 1963); David Cesarani, Eichmann: His Life and Crimes (William Heinemann, 2004); Deborah Lipstadt, The Eichmann Trial (Next Book/Schocken, 2011).
  • See discussion below, section 6.
  • Fraser (n 1).
  • Matthew Lippman, ‘The Prosecution of Josef Alstoetter et al: Law, Lawyers and Justice in the Third Reich' (1997–8) 16 Dickinson Journal of International Law 343. The former President of Saddam Hussein's Revolutionary Court, Awad Al-Badar, became the first jurist convicted since the Justice Case of acting as an ‘assassin in judicial robes’ in the Dujail case before the Iraqi High Tribunal. The ‘unofficial’ English translation is available at http://law.case.edu/saddamtrial/dujail/opinion.asp.
  • Christiane Wilke, ‘Reconsecrating the Temple of Justice: Invocations of Civilization and Humanity in the Nuremberg Justice Case' (2009) 24 Canadian Journal of Law & Society 181, 192.
  • Alstoetter (n 2) 63.
  • Ibid, 31.
  • Ibid, 32 and 82.
  • Ibid, 33.
  • Ibid, 57.
  • Ibid, 984.
  • This does not mean that other bases for legitimacy and authority do not exist in such cases. The claim is more basic, ie that ‘law’ cannot by itself be the foundation of such assertions.
  • Alstoetter (n 2) 63.
  • Ernst Frankel, The Dual State: A Contribution to the Theory of Dictatorship (Oxford University Press, 1941).
  • Alstoetter (n 2) 984.
  • Ibid.
  • Ibid, 1011.
  • Of course the argument is not necessarily inconsistent with some versions of natural law which recognise the existence of positive norms which carry the label ‘law’ and which are then tested against the superior and transcendent normativity of natural law.
  • W Friedmann, The Allied Military Government of Germany (Stevens & Sons, 1947).
  • Alstoetter (n 2) 959–60.
  • Hans Kelsen, ‘The Legal Status of Germany According to the Declaration of Berlin' (1945) 39 American Journal of International Law 518.
  • Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law, (Oxford University Press, 2011) 107 ff.
  • Alstoetter (n 2) 964.
  • Jacques Derrida, ‘The Force of Law: “The Mystical Foundation of Authority”' (1989–90) 11 Cardozo Law Review 920.
  • Karl A Schleunes (ed), Legislating the Holocaust: The Bernhard Loesener Memoirs and Supporting Documents (Westview, 2001).
  • cf Kristen Rundle, ‘The Impossibility of an Exterminatory Legality: Law and the Holocaust' (2009) 59 University of Toronto Law Journal 65.
  • Christian Kohl, The Maiden and the Jew: The Story of a Fatal Friendship in Nazi Germany (Steerforth, 2004).
  • Alstoetter (n 2) 373, 594, 650, 752.
  • Ingo Müller, Hitler's Justice: The Courts of the Third Reich (Harvard University Press, 1991).
  • Alstoetter (n 2) 1115.
  • Ibid.
  • ‘The Case Against Nazi Jurists’, 6 March 1948, Nuremberg Military Tribunal 3—Judges' Case, Paper 3, http://digitalcommons.law.uga.edu/nmt3/3.
  • Frank Caestecker and David Fraser, 'The Extraterritorial Application of the Nuremberg Laws: Rassenschande and “Mixed” Marriages in European Liberal Democracies' (2008) 10 Journal of the History of International Law 35; 'Jews or Germans? Nationality Legislation and the Restoration of Liberal Democracy in Western Europe after the Holocaust' (2012) Law & History Review (forthcoming).
  • Caestecker and Fraser, ‘The Extraterritorial Application of the Nuremberg Laws', ibid.
  • A possible counter-argument might be posited to the effect that these cases involved the application of national legal norms and not international legal rules, even in cases where ‘public policy’ and ordre public concerns were canvassed. However, consistent state practice itself can be constitutive of international legal rules and I would argue that, given the tenuous basis for the existence of an overarching international legal norm criminalising the implementation of such legal provisions, such as that elaborated in the Justice Case on the question of anti-Jewish legal persecution, this is a more empirically convincing statement of the international legal rule than that invoked by the Court.
  • Caestecker and Fraser, ‘Jews or Germans?' (n 47).
  • Alwyn V Freeman, ‘War Crimes by Enemy National Nationals Administering Justice in Occupied Territory' (1947) 41 American Journal of International Law 579.
  • Evan Wallach, ‘Drop by Drop: Forgetting the History of Water Torture in US Courts' (2006–7) 45 Columbia Journal of Transnational Law 468.
  • Cole (n 2); Philippe Sands, Torture Team: Uncovering War Crimes in the Land of the Free (Penguin, 2009); Austin Sarat and Nasser Hussain (eds), When Governments Break the Law: The Rule of Law and the Prosecution of the Bush Administration (New York University Press, 2010); Majorie Cohn (ed), The United States and Torture: Interrogation, Incarceration and Abuse (New York University Press, 2011).
  • Richard Falk, ‘Torture, War, and the Limits of Liberal Legality' in Cohn, ibid, 119, 123.
  • José E Alvarez, ‘Torturing the Law' (2005–6) 37 Case Western Reserve Journal of International Law 175; Robert C Power, ‘Lawyers and the War’ (2009) 34 Journal of the Legal Profession 39.
  • Cole (n 2) 3; Mary-Hunter McDonnell, Loran Nordgren and George F Loewenstein, 'Torture in the Eyes of the Beholder: The Psychological Difficulty of Defining Torture in Law and Policy' (2011) 44 Vanderbilt Journal of Transnational Law 87.
  • Cole (n 2) 20; MWS Hobel, ‘“So Vast an Area of Legal Irresponsibility”: The Superior Orders Defense and Good Faith Reliance on Advice of Counsel' (2011) 111 Columbia Law Review 574.
  • Cole (n 2) 23.
  • Nasser Hussain and Austin Sarat, ‘Introduction: Responding to Government Lawlessness: What does the Rule of Law Require?' in Sarat and Hussain (n 53) 1, 11 (footnotes omitted).
  • Alstoetter (n 2) 1087; Eli Nathans, ‘Legal Order as Motive and Mask: Franz Schlegelberger and the Nazi Administration of Justice' (2000) 18 Law & History Review 281.
  • Otto Kirchheimer, ‘Legality and Legitimacy' in William Scheuerman (ed), The Rule of Law Under Siege: Selected Essays of Franz L Neumann and Otto Kirchheimer (University of California Press, 1996) 44, 49.
  • John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (University of Chicago Press, 2005); War By Other Means: An Insider's Account of the War on Terror (Atlantic Monthly Press, 2006); Crisis and Command: A History of the Executive from George Washington to George W Bush (Kaplan, 2009); Steven Calabresi and Christopher Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press, 2008).
  • Joseph Lavitt, ‘The Crime of Conviction of John Choon Yoo: The Actual Criminality in the OLC during the Bush Administration' (2010) 62 Maine Law Review 156; David Cole, ‘The Sacrificial Yoo: Accounting for Torture in the OPR Report' (2010) 4 Journal of National Security Law & Policy 455.
  • Petition to the University of California from students of Berkeley Law, www.scribd.com/doc/21821688/University-Sign-On-Letter (obsolete; accessed 29 November 2010); Susannah Rosenblatt, ‘Bush Policymaker Escapes Berkeley's Wrath' Los Angeles Times, 11 February 2011.
  • Except perhaps a national legal forum seeking to exercise ‘universal’ jurisdiction, an issue too complex to be addressed here.
  • Anthony Lewis, ‘Making Torture Legal' New York Review of Books, 15 July 2004.
  • Scott Horton, ‘Legal Ethics and the War on Terror: The Role of the Government Lawyer' (2006) 99 Proceedings of the Annual Meeting of the American Society of International Law 301.
  • Ibid, 305.
  • ‘Role Differentiation and Lawyers’ Ethics: A Critique of Some Academic Perspectives' (2010) 23 Georgetown Journal of Legal Ethics 987.
  • David Barnhizer, ‘Golem, “Gollum”, Gone: The Lost Honor of the Legal Profession', Cleveland-Marshall Legal Studies Paper No 11-203, 3 January 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1734412.
  • Monroe H Freedman, ‘A Critique of Philosophizing About Lawyers' Ethics', Hofstra University School of Law, Legal Studies Research Paper Series, Research Paper No 11-07, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1776345.
  • David AJ Richards, ‘Terror and the Law' (1983) 5 Human Rights Quarterly 171, 171–2.
  • Raphael Gross, ‘“The Ethics of a Truth-Seeking Judge”: Konrad Morgen, SS Judge and Corruption Expert' in Christian Wiese and Paul Betts (eds), Years of Persecution, Years of Extermination: Saul Friedländer and the Future of Holocaust Studies (Continuum, 2010) 193.
  • The Nazi Doctors: A Study in the Psychology of Evil (Basic Books, 1986).
  • Modernity and the Holocaust (Cornell University Press, 1988).
  • Horton (n 67) 301.
  • Stéphane Leman-Langlois, ‘Constructing a Common Language: The Function of Nuremberg in the Problematization of Postapartheid Justice' (2002) 27 Law & Social Inquiry 79.
  • For a sustained philosophical argument that judges (and lawyers) might legitimately ignore the ‘law’, see Jeffrey Brand-Ballard, Limits of Legality: The Ethics of Lawless Judging (Oxford University Press, 2010).
  • Erwin O Smigel, The Wall Street Lawyer: A Professional Organizational Man? (Indiana University Press, 1969).
  • Austin Sarat and Stuart Scheingold (eds), The World Cause Lawyers Make (Stanford University Press, 2005); Cause Lawyering: Political Commitments and Professional Responsibilities (Oxford University Press, 1998).
  • Peter H Schuck, ‘Suing Government Lawyers for Giving Dubious Legal Advice in a National Security Crisis: Notes on How (Not) to become a Banana Republic', Yale Law School, Public Law Working Paper No 229, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1805987.
  • Eric J Miller, ‘Judging in Bad Faith', St Louis University Legal Studies Research Paper No 2009-10; David Fraser, ‘South African Cricketers, Nazi Judges and Other Thoughts on (Not) Playing the Game' (2000) 38 Osgoode Hall Law Journal 563.
  • Allan Hutchinson, It's All in the Game (Duke University Press, 2000); cf Fraser, ibid.
  • Russell Miller, ‘Rejecting Radbruch: The European Court of Human Rights and the Crimes of the East German Leadership' (2001) 14 Leiden Journal of International Law 653.
  • Mary L Dudziak, ‘Schmitt and Post-9/11 Legal Thought', Legal History Blog, 22 February 2011, http://legalhistoryblog.blogspot.co.uk/2011/02/schmitt-and-post-911-legal-thought.html.
  • Ibid.
  • ‘Carl Schmitt and the Critique of Lawfare’, Case Western Reserve Journal of International Law (forth-coming), Georgetown Public Law Research Paper No 11-33, Accepted Paper Series, SSRN, 2.
  • Ibid.
  • cf Terry Eagleton, Why Marx Was Right (Yale University Press, 2011).
  • Christian Ingrao, Croire et détruire: les intellectuels dans la machine de guerre SS (Fayard, 2010).
  • Lippman (n 18) 431.
  • Mark P Denbeaux and Jonathan Hafetz, The Guantánamo Lawyers: Inside a Prison Outside the Law (New York University Press, 2009).
  • Alstoetter (n 2) 1026.
  • Buck v Bell, 274 US 200 (1927).
  • Korematsu v United States, 323 US 214 (1944).
  • Joint Expert Opinion, January 2011, 16.
  • Ibid, 17.
  • John Hagan, Gabrielle Ferrales and Guillermina Jasso, ‘Collaboration and Resistance in the Punishment of Torture in Iraq: A Judicial Sentencing Experiment' (2010) 28 Wisconsin Journal of International Law 1.
  • 'What Did the Lawyers Do During the “War”? Neutrality, Conflict and the Culture of Quietism' (2011) 74 Modern Law Review 350.
  • Ibid, 384.
  • Herlinde Pauer-Studer and J David Velleman, ‘Distortions of Normativity' (2010) 14(3) Ethical Theory and Moral Practice 329; David Fraser, ‘Shadows of Law, Shadows of the Shoah: Towards a Legal History of the Nazi Killing Machine' (2011) 32(2) Oxford Journal of Legal Studies 401.
  • For a justification of the Nuremberg Trial (and others) from a different perspective, see William E Scheuerman, Between the Norm and the Exception: The Frankfurt School and the Rule of Law (Massachusetts Institute of Technology Press, 1994) 230–2.
  • Lecturer, Department of Law, London School of Economics and Political Science, UK. I am indebted to Herlinde Pauer-Studer for the opportunity to participate in the ‘Authority, Legality, and Legitimacy' seminar held in Vienna in May 2011, and to Carolyn Benson and Julian Fink for their feedback on the final draft and for supporting my contribution to the present symposium. Thanks also to Liam Murphy, Joseph Raz, Thomas Mertens, Herlinde Pauer-Studer and David Velleman for interventions that greatly aided my revisions to earlier drafts of this paper.
  • The Nazi legal program against the Jews began with the enactment in April 1933 of the Law for the Restoration of the Professional Civil Service, which sought to remove Jews from public office in Germany. The program then expanded drastically in its breadth with the enactment in September 1935 of what are known as the ‘Nuremberg laws’. The first of these laws, the Law for the Protection of German Blood and Honour, prohibited marriage and sexual relations between those defined as ‘Jewish’ and ‘Aryan’ Germans, while the second, the Reich Citizenship Law, stripped those defined as Jewish of their status as German citizens. This second law was ultimately extended by 13 supplementary decrees that reached into all aspects of Jewish life in Germany. A separate set of measures then followed from April 1938 to facilitate the expropriation of Jewish property. For a more detailed account of the Nazi anti-Jewish program, see Kristen Rundle, ‘The Impossibility of an Exterminatory Legality: Law and the Holocaust' (2009) 59 University of Toronto Law Journal 65, 69–76.
  • Marion A Kaplan, Between Dignity and Despair: Jewish Life in Nazi Germany (Oxford University Press, 1998) ch 1, ‘In Public: Jews Are Turned into Pariahs, 1933–1938', 6.
  • Ibid.
  • Margarete Limberg and Hubert Rübsaat (eds), Germans No More: Accounts of Jewish Everyday Life, 1933–1938 (Berghahn Books, 2006).
  • Jurgen Matthaus and Mark Roseman (eds), Jewish Responses to Persecution: Volume I: 1933–1938 (United States Holocaust Memorial Museum Center for Advanced Holocaust Studies, Alta Mira Press, 2010).
  • Renata Stij and Frieder Schnock, Memorial to the Deported Jewish Citizens of the Bayerische Viertel, Bayerische Platz, Berlin, 1993–present.
  • Victor Klemperer, I Will Bear Witness: A Diary of the Nazi Years 1933–1941, Martin Chalmers (trans) (Random House, 1998); Victor Klemperer, I Will Bear Witness: A Diary of the Nazi Years 1942–1945, Martin Chalmers (trans) (Random House, 1999). For a discussion of Klemperer's diaries, see Rundle (n 1) 91–93.
  • See Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin, rev edn 1961) 48.
  • Kaplan (n 2) 20.
  • Ibid, 10.
  • Konrad H Jarausch, 'Jewish Lawyers in Germany, 1848–1938: The Disintegration of a Profession' (1991) 36 Leo Baeck Institute Yearbook 171, 186.
  • I am indebted to the Wiener Library Institute of Contemporary History in London for providing English translations of the reports taken by the Jewish Central Information Office, which monitored anti-Semitic activity during the Nazi years, in the immediate aftermath of Kristallnacht. All testimonies here referred to are taken from ‘The November Pogrom Accounts—English Translations’; document 1375/2, held at the Wiener Library.
  • See Hannah Arendt, The Origins of Totalitarianism (Harcourt, 1968) 11–12.
  • Quoted and discussed in Raphael Gross, Carl Schmitt and the Jews: The ‘Jewish Question’, The Holocaust, and German Legal Theory, Joel Golb (trans) (University of Wisconsin Press, 2007) 45.
  • Kaplan (n 2) 20. See also Jarausch (n 11) 188 for how a combination of the specific historical dynamics and public sector anti-Semitism contributed to the association between Jewish lawyers and the checking of state action.
  • HLA Hart, ‘Positivism and the Separation of Law and Morals' (1958) 71 Harvard Law Review 593, 623. See also The Concept of Law (Oxford University Press, 2nd edn 1994) ch IX.
  • Joseph Raz, ‘The Rule of Law and its Virtue', ch 11 in The Authority of Law: Essays on Law and Morality (Clarendon Press, 1979) 221.
  • Scott Shapiro's comments on the wicked legal system in his recent book offer a good example: see Legality (Belknap Press of Harvard University Press, 2011) 393.
  • Jeremy Waldron, ‘The Concept and the Rule of Law' (2008) 43 Georgia Law Review 1, 13, 15.
  • See Hart (n 16) section IV, and Lon L Fuller, 'Positivism and Fidelity to Law: A Reply to Professor Hart' (1958) 71 Harvard Law Review 630, sections V and VI.
  • Fuller, ibid, 646.
  • As elaborated in Kristen Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Hart Publishing, 2012).
  • My thanks to Neil Duxbury for putting this conversation on the table.
  • Nigel Simmonds, ‘Reply: The Nature and Virtue of Law' (2010) 1 Jurisprudence 277, 286.
  • I have myself pursued that line of analysis in ‘The Impossibility of an Exterminatory Legality’ (n 1).
  • Rundle (n 22) 2.
  • Undated and untitled document, The Papers of Lon L Fuller, Harvard Law School Library, Box 12, Folder 1 (Notes for the ‘Reply to Critics’).
  • I address Fuller's thinking on agency and generality in detail in Forms Liberate (n 22) ch 5.
  • See Forms Liberate (n 22) ch 4.
  • Jeremy Waldron, ‘Positivism and Legality: Hart's Equivocal Response to Fuller' (2008) 83 New York University Law Review 1135, 1167.
  • Fuller (n 20) 660–1.
  • Lon L Fuller, ‘A Reply to Critics' in The Morality of Law (Yale University Press, rev edn 1969) 242.
  • Undated and untitled document, The Papers of Lon L Fuller, Harvard Law School Library, Box 12, Folder 1 (Notes for the ‘Reply to Critics’). The emphasis is included in the original.
  • Fuller (n 20) 646.
  • See ‘Impossibility of an Exterminatory Legality’ (n 1) and ch 4 in Forms Liberate (n 22).
  • Fuller, Morality of Law (n 32) 162–3.
  • Ibid, 162. See also Lon L Fuller, ‘A Reply to Professors Cohen and Dworkin’ (1965) 10 Villanova Law Review 655, 665.
  • Fuller, Morality of Law (n 32) 162. There is much in common here with the sense of who the legal subject is and what she possesses conveyed by John Finnis, Natural Law and Natural Rights (Clarendon Press, 1980) 272–4, and Nigel Simmonds, Law as a Moral Idea (Oxford University Press, 2007) 111.
  • Lon L Fuller, ‘Freedom: A Suggested Analysis' (1955) 68 Harvard Law Review 1305, 1307.
  • Fuller's responses to Hart are, for instance, littered with recurrent criticisms of the apparent failure of Hart's positivist account of law to provide for the withdrawal of lawgiving power in the event of its abuse, and, as noted above, Fuller's working notes for his final ‘Reply to Critics’ contain multiple references to positivism's neglect of the legal subject. See further ch 5 in Forms Liberate (n 22).
  • See Rundle (n 1) esp 88–89, 104–9.
  • This is just some of the terminology associated with discussions of the value of the rule of law to be found, for example, in the work of Joseph Raz, Scott Shapiro, Nigel Simmonds, and Jeremy Waldron, respectively.
  • Documents obtained from the family records of Cäcilie Weinberger's great granddaughter, Susan Soyinka, copies of which are available for research at the Wiener Library, London. Sincere thanks to Susan Soyinka for illuminating discussions about the history of these documents.
  • See Waldron (n 19).
  • I take up this point in my analysis of Raz's thinking on authority in ch 6 of Forms Liberate (n 22). See further ‘Form and Agency in Raz's Legal Positivism’, Law & Philosophy (forthcoming).
  • Contemporary natural law projects speak to the ‘priority of persons’ and in doing so obviously also insist upon attention to the position of the legal subject within their deliberations about the nature of law: see eg John Finnis, ‘The Priority of Persons’, ch 19 in Intention and Identity—Collected Essays Volume II (Oxford University Press, 2011). While such inquiry is broadly compatible with the kind I have pursued here, more directly salient to my questions are those projects that are actively interested in the phenomenon of the subject's experience of law in their exploration of questions about the nature of law.
  • Fuller (n 32) 242.
  • Waldron (n 19) 61.
  • Department of Philosophy, University of Vienna, Austria. We are indebted to Raymond Critch, Herlinde Pauer-Studer, and audiences at Bratislava, Graz, Milan and Vienna for helpful comments on earlier drafts of this paper. We are especially grateful for the discussion and comments we received at the ERC-sponsored conference on ‘Authority, Legality, and Legitimacy' in Vienna, May 2011. Research for this paper was funded by the ERC Advanced Grant ‘Distortions of Normativity’. We thank the ERC for their very generous support.
  • 'Gesetz zur Änderung des Strafgesetzbuchs vom 28. Juni 1935', Art 1, § 2. RGBl I, p 839. Like amendments were inserted as §§ 170a and 267a of the Strafprozessordnung ('Gesetz zur Änderung von Vorschriften des Strafverfahrens und des Gerichtsverfassungsgesetzes vom 28. Juni 1935', RGBl I, p 844). The original German reads as follows: ‘Bestraft wird, wer eine Tat begeht, die das Gesetz für strafbar erklärt oder die nach dem Grundgedanken eines Strafgesetzes und nach gesundem Volksempfinden Bestrafung verdient. Findet auf die Tat kein bestimmtes Strafgesetz unmittelbar Anwendung, so wird die Tat nach dem Gesetz bestraft, dessen Grundgedanke auf sie am besten zutrifft.'
  • Strafgesetzbuch für das Deutsche Reich (1871), § 2.
  • We can call non-extended or literal interpretation an interpretation of the written statute. At the time of the introduction of this law, there was a question about whether the use of analogy was really just a form of extended interpretation. It was in any case an increasingly popular idea that existing ‘pre-revolutionary’ laws ought to be interpreted broadly, according to the spirit of the new order (see eg Ernst Rudolf Huber, Verfassungsrecht des Großdeutschen Reiches (Hanseatische Verlagsanstalt, 2nd edn 1939) 245).
  • By ‘application’, here, we mean either the broadening of a pre-existing rule by removing a condition or the creation of a narrower rule meant to exist alongside the previous rule (where a condition is added) (see Joseph Raz's discussion of legal analogy in ‘Law and Value in Adjudication’, The Authority of Law (Oxford University Press, 2nd edn 2009) 204). At the time of the introduction of the APA, some commentators argued for the authorising of what was called Rechtsanalogie (‘analogy of the law’): the application of a principle underlying the legal system as a whole to an unregulated case which is condemned by the ‘sound perception of the people’. The majority of commentators argued, however, that the Nazi criminal law ought only to license Gesetzesanalogie. According to W Becker, Gesetzesanalogie is only used when a direct application of the law is impossible. As he describes it: ‘It constitutes the turning away from a purely literal interpretation and permits the application of the fundamental underlying idea contained in a written statute to cases which in fact do not fall under its wording, but which, however, are analogous to cases that are covered by laws and which are distinguished from these cases only in irrelevant particulars' (‘Die richterliche Rechtsschöpfung in der strafrechtlichen Praxis’ (1937) 99 Deutsche Justiz 457). As it does not affect our arguments here, we will not engage in this discussion. For further information on this distinction, see Barbara Ackermann, Das Analogieverbot im geltenden und künftigen Strafrecht, Series: Strafrechtliche Abhandlungen, Aug Schoetensack (ed), Heft 348 (Alfred Kurtze, 1934). See also Karl Siegert, 'Nullum poena sine lege: kritische Bemerkungen zu den Vorschlägen der amtlichen Strafrrechtskommission' (1934) I Deutsches Strafrecht 376–86, 380; Karl Schäfer, ‘Nulla Crimen Sine Poena’, Das kommende deutsche Strafrecht: Allgemeiner Teil. Bericht über die Arbeit der amtlichen Strafrechtskommission, Franz Gürtner (ed) (Verlag Franz Vahlen, 2nd edn 1935) 200, 204; Roland Freisler, Schutz des Volkes oder des Rechtsbrechers? Fesselung des Verbrechers oder des Richters? Deutsches Strafrecht (Sonderdruck), Heft 1–2 (1935) 9); and Karl Klug, ‘Drei Grundprobleme des kommenden Strafrechts’, Zeitschrift der Akademie für Deutsches Recht 2 (1935) 98–102, 99.
  • See eg Erich Schinnerer, German Law and Legislation (Terramare Office, 1938) 18–19. See also Freisler (n 4) 3.
  • Article 116. A version of this principle was also included in the Penal Code of 1871 (Reichsstrafgesetzbuch, § 2 para 1): ‘An act may be visited with a penalty only if the penalty was determined by law prior to the commission of the act.' According to K Klee, the idea that ‘what is not forbidden is allowed’ was a product of a ‘liberal epoch’, which did not correspond to the National Socialist conception of law (‘Straf ohne geschriebenes Gesetz’ (1934) 39(1) Deutsche Juristen-Zeitung 639, 639).
  • Many German commentators were eager to point out that this principle had no root in Roman law; rather, it could be traced to the Enlightenment era and was introduced into German law via the influence of French revolutionary philosophy (see Lawrence Preuss, ‘Punishment by Analogy in National Socialist Penal Law’ (1936) 26(6) Journal of Criminal Law and Criminology 847, 849–50; Klee (n 6) 639–41). A common strategy for dealing with criticism of the departure from nulla poena sine lege involved arguing that, due to the National Socialist revolution in legal thinking, the meaning of the words in § 2 of the old Criminal Code had changed and the old meaning no longer applied (see eg Hubertus Bung, ‘Legalität und Analogie im Strafrecht’ (1935) 9(10) Jugend und Recht 228, 229). In addition, at the heart of the National Socialist ‘revolution’ was a newfound prioritisation of the interests of the community (which supplied the content of ‘true’ justice and genuine Recht) over those of the individual, and it was this conception in particular that provided support for the shift away from an understanding of the judge as strictly bound to the written statute. See eg Hans Frank, ‘Die nationalsozialistische Revolution im Recht’ (1935) 2(7) Zeitschrift der Akademie für Deutsches Recht 489, 492. On the implications of this shift for the concept of legal security and the legal status of the individual, see eg Ulrich Scheuner, ‘Die Rechtsstellung der Personlichkeit in der Gemeinschaft’ in Hans Frank (ed), Deutsches Verwaltungsrecht (Zentralverlag der NSDAP, Franz Eher Nachf, 1937) 82, 95–96.
  • See eg Schäfer (n 4); Ackermann (n 4) esp 37–44; Freisler (n 4) esp 13–16; Hermann Göring, ‘Die Rechtssicherheit als Grundlage der Volksgemeinschaft’ in Hans Frank (ed), Schriften der Akademie für Deutsches Recht (Hanseatische Verlagsanstalt, 1935).
  • See n 11 for examples.
  • Such principles are often associated with certain rather minimal conceptions of the state governed by the rule of law. See eg Lon L Fuller's The Morality of Law (Yale University Press, 2nd edn 1969) 33–94. See also Joseph Raz, ‘The Rule of Law and its Virtue’ in The Authority of Law (Oxford University Press, 2nd edn 2009) 210–29.
  • For versions of this way of thinking, see eg Heinrich Gerland, ‘Einige Anmerkungen zu der Denkschrift des Preußischen Justizministers’ [1934] Deutsche Justiz 224; Anon, ‘The Use of Analogy in Criminal Law’ (1947) 47(4) Columbia Law Review 613; Jerome Hall, ‘Nulla Poena Sine Lege' (1937) 47(2) Yale Law Journal 165; CH McIlwain, ‘Government by Law’ (1936) 14(2) Foreign Affairs 185; 'Advisory Opinion: Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City', Publications of the Permanent Court of International Justice, Series A/B, No 65.
  • In what follows, we will sometimes refer to the ‘Nazi legal system’ or to the principles and features of ‘Nazi law’. In every case, though, our focus is more strictly Nazi penal law.
  • For accounts of these aspects of Nazi governance, see eg Ian Kershaw, Hitler, the Germans, and the Final Solution (Yale University Press, 2008) esp chs 1–4; Michael Stolleis, The Law Under the Swastika: Studies on Legal History in Nazi Germany Thomas Dunlop (trans) (University of Chicago Press, 1998) esp 5–22; Bernd Rüthers, Die Unbegrenzte Auslegung: Zum Wandel der Privatrechtsordnung im Nationalsozialismus (JCB Mohr (Paul Siebeck), 1968) esp ch 3. See also Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship, EA Shils et al (trans) (Oxford University Press, 1941) esp ch 1.
  • Suppose ‘if p, q' represents a material implication; this implication comes out as true whenever q is true. Hence, either requirement implies the infringement of the joint-satisfaction ought materially simply because it holds true that it infringes the joint-satisfaction ought.
  • It is of critical importance not to try to reduce them to expressions of alethic modal logic. For example, suppose again that some fact e explains non-defeasibly some other fact f. Call this non-defeasible explanation ‘E’. E cannot be analysed in terms of alethic modality, such as the following statements: necessarily, e explains f (A); necessarily, if e, then e explains f (B); necessarily, if e, then f (C). Consider A: E does not entail A because explanations are factive relations. That is, at w, e explains f only if, at w, e and f obtain. So, if E entailed A, then E could hold true only if e and f obtain necessarily. Yet this does not hold for all non-defeasible explanations, as our example shows: the fact that John has one sibling and Mary none explains non-defeasibly why John has more siblings than Mary. But this implies neither that necessarily John has one sibling and Mary none, nor that John necessarily has one sibling. Hence, E does not imply A. However, unlike A, E does imply B. This is almost trivial. For example, if the fact that John has one sibling and Mary none explains non-defeasibly why John has more siblings than Mary, then, necessarily, if John has one sibling and Mary has none, this will explain why John has more siblings than Mary. Also, E implies C. Explanations are factive relations. So if John having one sibling and Mary having none explains non-defeasibly why John has more siblings than Mary, then, necessarily, if John has one sibling and Mary none, then John has more siblings than Mary. But even though E implies B and C, we can reduce neither E to B nor E to C. For neither B nor C strictly entails E. It is simple to show why. B and C state strict conditionals. So, by replacing e with a necessary falsehood, both B and C will turn out to be true. However, if e necessarily explains f, replacing e with something impossible will not guarantee the correctness of the explanation relation. So, for a non-defeasible explanation to be correct, its explanans (ie ‘e’ in the example above) must obtain in some possible contexts. In sum, though non-defeasible explanations come with some modal commitments, they cannot be fully analysed in terms of modal necessity.
  • We claim that this is true, it must be emphasised, only on the condition that the existence of secret laws constitutes a non-defeasible explanation of why a legal system is not as it fully ought to be.
  • Compare, for example, Fuller (n 10) ch 2; Antonin Scalia, ‘The Rule of Law as a Law of Rules' (1989) 56 University of Chicago Law Review 1175, 1179.
  • To be sure, predictability will not be sufficient for a legal system to be ideal. A drastic example to support this point is the following. Suppose a society has no legal provisions. Suppose too that this is a well-known fact. That is, within this society, the law requires nothing of anyone. Presumably, it will be very easy to predict what the law is.
  • Another way of defining predictability is to say that one can reach correct conclusions about the legal consequences (ie punishment, etc) of one's potential actions.
  • In fact, we know of no argument against this assumption.
  • Let X be a placeholder for all possible types of acts and omissions. Let S be a placeholder for individuals. Furthermore, assume that S and X are such that there is a correct syntax by which ‘S Xs’ forms a proposition. ‘S Xs’ thus represents a generic proposition expressing an individual's act or omission. The set of propositions that contains all and only propositions whose truths are required of the legal subject by the law will have the form ‘S Xs’.
  • Compare, for example, the laws of Norway and Saudi Arabia.
  • Compare the example of the German laws in effect in 1871 and 1940.
  • On a scale of knowing things about the law, RP is located somewhere between a fully ignorant person regarding the law and a trained lawyer.
  • Suppose RP's list contains the proposition that RP carries a pencil, and this does not contradict a proposition belonging to her requirement set. Then, if RP is practically guided by her decision to carry a pencil, this will not do any legal harm. The law does not require her not to carry a pencil. With regard to carrying pencils, the actual law is simply laxer than she concluded. However, suppose RP's list contains the proposition that she steals a pencil. This is not in her requirement set, we assume. Furthermore, it contradicts a proposition of that set, namely that it is not the case that RP steals a pencil. If RP is then practically guided by her conclusion to steal a pencil, she will infringe the law. RP thus potentially faces legal consequences. In this sense, reducing negative but contradicting convergence seems more significant for predictability than reducing negative yet non-contradictive convergence.
  • Strictly speaking, if negative and contradicting convergence of RP's list with her requirement list reduces the law's predictability to a greater degree than negative yet non-contradicting convergence, this difference in ‘weight’ would need to be incorporated into the ratio. However, this technicality does not make a difference to our broader argument.
  • We assume that this response is rationally required of RP.
  • See eg Siegert (n 4) 377.
  • Nazi scholars often spoke of their triumphant overcoming of the liberal separation of Recht and Gesetz, but this must be interpreted carefully. The general idea seems to have been that the new (Nazi) written law would constitute an expression, via the will of the Führer, of the legal conscience of the national community. Criticism of rejected liberal laws (particularly those protecting basic civil liberties) hinged on the idea that they did not accurately express (or ‘develop’) the basic principles of German Recht. See eg Manfred Fauser, ‘Das Gesetz im Führerstaat’ (1935) 26(2) Archiv des öffentlichen Rechts 129, 132.
  • The true spirit, or legal conscience, of the national community (Volksgeist, das Rechtsgewissen des Volkes), in which German Recht was thought to be grounded, was generally conceived both as having been realised in the past and as awaiting a future revival as a result of the eventual success of the Nazi project. See eg Siegert (n 4) 377.
  • See eg Siegert (n 4) 380.

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