'Much of the law enacted by Hitler's
Third Reich was not valid law'.
Discuss critically, the above statement.
The examination of the connection between
law and morality is a immense one, and perhaps in the western philosophical
traditions, the most significant and deeply contested question there is. The
fall of the Nazi regime, saw the emergence of this debate amongst the modern
legal philosophers of our day. Historically speaking, the two most contested
theories for the explanation of what law is, have been Natural Law and
Positivism.
From the time of the ancient Greeks up
until the 16th or 17th centuries, the only dominant legal
theory was “Natural Law”; which in essence meant that law must be understood as
a “Practical application of morality”, hence law and morality were intimately
connected.
The classical doctrine of Natural law has
far reaching effects. Firstly, it is universal and unchangeable, thus it is
available at all times and in all places for those whose office is to develop
law. Secondly, it is a higher law than other law promulgated by political
institutions as it tells people, subjects of the law, whether ordinary law are
binding on them or not. And, thirdly it is discoverable by reason.
Natural law was challenged by the
uprising of “Legal Positivism”, which denied that the law is simply a matter of
“applied” morality. Legal Positivists argue that notably many legal systems are
wicked and what is really required by morality is debatable and thus there is
no set standard of morality. What positivists conclude is that the law is a
kind of “Social technology” which regulates the behavior of its subjects and
resolves conflicts between them, thus “law has no necessary moral character”.
Thus the whole discussion between the Naturalists and Positivists stems from the paradox
of law and morality, with the Naturalists emphasizing on the connection thesis,
that is to say that there is a necessary connection between law and morality.
The positivists take a completely different attitude and insist on the separability
thesis.
Austin(1), for instance, highlighted that: “the existence of law is one
thing; its merit or demerit is another. Whether it be or be not is one enquiry;
whether it be or be not conformable to an assumed standard, is a different enquiry.
A law, which actually exists, is a law, though we happen to dislike it, or
though it vary from the text, by which we regulate our approbation and
disapprobation.”
Professor Hart's theory provided a modern endorsement of the theory of
legal positivism first illustrated in the 19th century by Jeremy
Bentham and his disciple John Austin. Hart believed that the ideal model of law
was that of a “Modern Municipal Legal System” in which laws were to be
identified according to the sources of the law that judges accepted. Since,
what the judges accepted was a matter of empirical fact, it would not
necessarily be the case that law had a moral content. Thus, Hart believed that
a law might take a moral form but it does not need to do so in order to be law.
The question that whether Nazi law were in fact law at all was forwarded by
Professor Lon Fuller, who was concerned with the difficulties posed by
totalitarian abuse of law between 1930 and 1940. The basis of his analysis was
the apparent weakness of law in the Third Reich and the extent to which it
could credibly deliberated to have been ‘Law’ in any meaningful sense.
Fuller being a Naturalist sought to explain the moral content in the idea
of the “Rule of Law”, i.e. governance by rules and judicial institutions. The
morality Fuller describes is “Morality as Legality”- meaning “morally sound
aspects of governing by rules”. Thus, he is often cited as a “procedural”
naturalist as he focuses on how laws should be made rather than engaging
whether they are moral or not. Fuller viewed human activity as necessarily
goal-oriented or purposive in the sense that people engaged in a particular
actions only because it helped them to attain some goal or purpose. Fuller's(2)
conception of law implied that nothing could count as law unless that law was
capable of performing the essential function of guiding human behavior. And in
order to perform these functions, a legal system must satisfy the following
principles:
1. All rules must be expressed in general terms;
2. All rules must be publicly promulgated;
3. All rules must be prospective in effect;
4. All rules must be expressed in understandable terms;
5. All rules must be consistent with one another;
6. All rules must not require a conduct beyond the powers of the
affected party;
7. All rules must not be changed so frequently so that the
subject cannot rely on them; &
8. All rules must be administered in a manner consistent with
their wording.
According to Fuller, any legal system that fails minimally to
satisfy these principles of legality could never achieve law's essential
purpose of attaining social order through the use of rules that directs human
conduct. Accordingly, Fuller determines that his 8 principles are “internal” to
law in the sense that they are built into the existence condition for law. Unlike most modern theories, this view
treats law as an activity and regards the legal system as the product of
sustained purposive effort.”
Therefore, the moral criteria for the evaluation of positive law and the
implications of their application are the particular concern of Naturalist
theories, but this, it is submitted, has also troubled some positivists. The
atrocious Nazi regime and the grudge-informer cases set the debate between
Professor Hart and Fuller into motion in 1958 with Professor Hart taking the
positivists line and Fuller adopting the anti-positivist approach.
The "debate" between them initiated when Hart printed his Holmes
Lecture (entitled Positivism and the Separation of Law and Morals) distributed
at Harvard Law School in April 1957 and published in Harvard Law Review in
1958. In return, Fuller replied in his article "Positivism and Fidelity to
Law - A reply to Prof. Hart", also published in 1958 in Harvard Law
Review.
Hart responded in his book “The Concept of Law”, to which Fuller answered
in the first edition of his book “The Morality of Law”. Finally, Hart gave his
response in 1965 in Harvard Law Review. Again, Fuller countered in the Second
(Revised) Edition of “The Morality of Law”, published in 1969.
This unsatisfying sequences of wordplays and responses drove Cotterrell(3)
to mention in his book “The Politics of Jurisprudence”:
"There is often a sense that in the
battle of arguments no one ever wins, and further that there are no reliable
criteria by which one could recognize victory anyway. The disputes seem
timeless, the issues never resolved. Decade after decade positivists and
natural lawyers face one another in the final of the World Cup. Victory goes
now to one side, now to the other. The legal theorist can only cheer or jeer,
label his opponent a moral leper or a disingenuous romantic."
The immediate focus of the discussion was one of the so called grudge
informer cases, which were debated by both Hart and Fuller. These cases were
those in which persons living under Nazi jurisdiction had made use of
tyrannical laws for the settlement of a personal grudge. The facts of this
particular case were that in 1944 the defendant denounced her husband to the
Gestapo for having said something insulting about Hitler.
Both Hart and Fuller discussed the case of a German woman who had condemned
her husband to the Gestapo for criticizing Hitler's conduct of the war, in
accordance with the anti-Sedition laws of 1934 & 1938. The man was
prosecuted and convicted of the offence of “Slandering the Fur her”, a capital
offence.
Although the man was not executed,
he was sent to the eastern front and after the war the husband brought
proceedings against the wife. His wife was prosecuted for the offence of “
depriving another of his/her freedom”, a crime under the Penal code of 1871 –
which had remained in force throughout the Nazi period.
Nazi law was laid down in the Enabling Act of July 12, 1934, passed by the
German Reichstag, it amended the German Constitution by allowing Hitler to
issue decrees inconsistent with the Constitution, including decrees passing the
budget, making treaties, and even amending the Constitution. As declared by
Goering to the Prussian prosecutors on July 12, 1934 "The Law and the will
of the Fur her are one".
Nazi justice has been described by William Shirer(4) in his “The Rise and
Fall of the Third Reich”, under the heading "Justice in the Third
Reich" (at p. 369). Nazi ethnic laws regarded Jews as inferior beings and
treated them mercilessly. There was total arbitrariness and terror during
Hitler's rule; the Gestapo being empowered to arrest, torture or even kill any
person without any charge or trial. Ultimately 6 million Jews were murdered in
gas chambers, apart from the other atrocities committed by the Nazis.
The wife argued that she had not in fact committed a crime – a court had
sentenced her husband pursuant to the law of the time. The defense argued that
her husband had committed an offence under a Nazi Statute of 1934.
However, the court held that she had in fact procured the deprivation of
her husband's liberty and thus, consequently committed the offence. The court
said that the Nazi laws were “contrary to the sound conscience and sense of
justice of all decent human beings”.
Hart and Fuller argued at a cross. Hart thought that the court’s decision
was wrong, as the Nazi laws of 1934 were valid, as they satisfied the rule of
recognition; whereas Fuller resisted that the Nazi regime was so anarchistic
that nothing therein could qualify as law.
When Hitler came to power, Germany had already been industrialized long
before. His regime which was based on features which disrupt industrial
society, e.g. arbitrariness and terror; could not have lasted. Thus, many
jurists believe that Hitler tried to transform Germany into a state similar in
some respects to ancient Rome which conquered many states to acquire tributes
& slaves.
Hence, it seems that the laws Hitler's Third Reich enacted where wholly
inconsistent with the historical development in Europe. However, the laws he
made, “though hideous and monstrous, were certainly laws”, as they were in
accordance with the Enabling act passed by the Reichstag.
This kind of thinking did not sit well with natural law thinkers like
Fuller because they thought that until and unless Nazi laws are treated as
non-laws, those who responsible for the atrocities under the Nazi regime could
escape punishment.
However, Hart points out that retrospective laws could have been framed
after the Second World War retrospectively repealing Nazi laws and
retrospectively affirming the acts of wrongdoers of such violence as criminal.
In fact in the Nuremberg trials, certain laws, e.g. crimes against
humanity, were applied retrospectively to punish Hitler's accomplices. Hence
there is no absolute prohibition on the retrospective enactment of criminal
laws; however such a law would conflict with Fuller's idea of the inner
morality of law.
In conclusion it would seem that both jurists are going for the same result
albeit under different banners. No doubt retrospective criminal statutes are
ordinarily frowned upon, but Hitler's regime was incomparable.
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