Did Legal Positivism Render German Jurists Defenceless During the Third Reich ?
| Author | Franziska Buob,Walter Ott |
| Published date | 01 March 1993 |
| Date | 01 March 1993 |
| DOI | 10.1177/096466399300200105 |
| Subject Matter | Articles |
91-
DID
LEGAL
POSITIVISM
RENDER
GERMAN
JURISTS
DEFENCELESS
DURING
THE
THIRD
REICH ?
WALTER
OTT
AND
FRANZISKA
BUOB
University
of Zurich,
Switzerland
N
1946,
with
the
desolation
in
the
legal
field
wrought
by
national
socialism
still
fresh
in
his
mind,
the
great
German
legal
philosopher
Gustav
Radbruch,
who
had
himself
propagated
the
doctrine
of
legal
positivism
before
the
war,
wrote
in
a
famous
essay
(Radbruch,
1946: 105
ff.):’
National
socialism
contrived
to
impose
itself
on
its
followers,
soldiers
on
the
one
hand,
jurists
on
the
other,
by
dint
of
two
principles:
’Orders
are
orders’,
and
’a
law
is
a
law’.
The
principles
’orders
are
orders’
never
applied
unrestricted,
since
the
duty
of
obedience
ceased
with
respect
to
orders
if
the
person
giving
the
order
had
criminal
intentions
(§ 47
of
the
Military
Penal
Code).
The
principle ’a
law
is
a
law’,
on
the
other
hand,
was
not
subject
to
any
restrictions.
It
reflected
the
positivistic
law
doctrine
which
had
held
sway
over
German
jurists
virtually
unquestioned
for
many
decades.
The
notions
of
lawful
illegality
and
legality
transcending
the
law
were
consequently
regarded
as
self-contradictory.
Positivism
did
indeed
render
the
German
juristic
fraternity
defenceless
in
the
face
of
laws
of
arbitrary
and
criminal
content,
albeit
that
positivism
in
itself
is
unable
to
provide
a
basis
for
the
validity
of
laws.
The
doctrine
considers
instead
that
the
validity
of
a
law
is
established
once
the
power
to
implement
the
law
exists.
However,
while
power
might
coerce,
it
can
never
validly
prescribe
what
ought
to
be
done;
this
is
only
possible
in
the
form
of
values
immanent
in
the
law.
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