Pies in the sky: Manna for Jurisprudes Part 3 by Victor Azure

The Challenge with “Unjust Laws”: The Third Reich

The rise of positivism in the twentieth century led by scholars like Auguste Comte among other theorists, was a resurgence of an old conflict between philosophy and poetry in the days of Aristotle, which is seen in modern times between the sciences and the humanities. The turn of positivism marked a new phase that demanded a strict reliance on the empirical—what is observable and testable. It represented a paradigm shift in the production of knowledge and quickly impacted methodology across many disciplines.  In law, it led to an approach (legal positivism) to law that rejects natural law and the moral claims that accompany it. For this new approach, moral notions would no longer be central to the thinking about what the law is. Thus, for example, if a law properly made requires everyone to keep an afro hairstyle, positivists will deem this valid law regardless of the fact that there are bald people who are naturally incapable of meeting this requirement. Positivists will argue that if the law maker wants to make the moral concession to bald people the law should probably read; ‘afros’ for everyone except bald people. This is the separation of morality and law argument that positivists make. Simply put, law can be moral but it need not be. This is in stark contrast with the natural law view that prevailed prior to this point. Morality, for the natural law theorists as the touchstone for the law (good law) is captured in the maxim of St Thomas Aquinas lex injusta non est lex(unjust laws are no laws at all). With this maxim, St Aquinas is not seeking to say that the law requiring bald people to grow afros is not a law because it is unjust, his claim is that the law is empty of a certain quality that makes a law, law. That quality is rests on how in tune the law is with nature.

The dialectic between positivism and natural law, on the connection between morality and the law is captured in the much popular saying by positivists that the law as it is different from the law as it ought to be. In his book, The Concept of Law, H.L.A Hart (a leading 20th century positivist) identified the connection between morality and the law as one of three recurrent issues in the field of jurisprudence. This tussle also came to a head in Germany between 1933 and 1945. After the defeat of the Germans in the First World War, Germany was made to pay reparations. Part of its punishment also included the surrender of colonies under the treaty of Versailles. In Germany, this was seen by some as international humiliation. Adolf Hitler was one of those and he sought power in Germany, in part, to restore his country’s former glory. The laws and institutions built by Adolf Hitler as leader of the Third Reich (Nazi administration) are bespoke specimen in the study of the connection between law and morality.


Law in the Third Reich

The Third Reich had a dual legal system. The normal judicial system existed side by side with the arbitrary power of the Nazi administration under Adolf Hitler. By 1934, Hitler had purged all Jewish lawyers and jurists from the legal profession in Germany. Subsequently, special courts were established to try politically sensitive cases which involved enemies of the Third Reich. A 1933 law allowed for the government to take anyone into protective custody without trial. A variety of pernicious legislation characterized the Third Reich. They included death penalty for rape, disobedience (which was at the discretion of the police), treason (loosely defined) and sabotage among others all attracted death. Special courts could order a low class offender of certain races (mainly Jews) to report a facility to be sterilized in line with government policy that such people are not fit to procreate.


The Nuremberg Dice

The thorny question before the court at the Nuremberg trials was this; to what extent can officials, who applied the law as it was made or posited and citizens who behaved in accordance with those laws be liable for punishment? The defense attorney at the trial mainly argued that to put officials who applied a nation’s laws on trial for performing their duties was to put that nation itself on trial. The court faced a difficult choice. To indict the officials because the laws they administered were unjust or to recognize that legal validity of laws was more important than their moral content.


The Grudge Informer Case

The Grudge Informer case was not part of the Nuremberg trials, it was a trial in a German postwar court. It involved a married couple. The husband was in the army whiles the wife remained at home. The facts of case are that the wife was having an affair and in an attempt to finally get rid of the husband that she no longer wanted, she reported him to the Gestapo (Nazi police). The alleged crime was that the husband had insulted Hitler. The husband was tried by the special courts and put to death. The wife was put on trial after the fall of Hitler and the court of first instance found her guilty of depriving her husband of his liberty. The court of appeal reversed this ruling holding that the verdict of the lower court incriminates the judicial function of the court that ordered the execution of the husband. For the court of appeal the issue turns on whether the law required the doing of an immoral act. It held that the law did not require the wife to report her husband and to that extent the law was not immoral. It only required citizens to exercise restraint when publicly commenting on the leader, Hitler. The court of appeal cleverly turned a blind eye on the question, whether a law that provided for death for a person who merely spoke his mind was law at all. But, other courts did.


Humanity makes a choice: The Jurists Case

The jurists’ case was one of the highlights at Nuremberg trials. After the fall of the Third Reich, the judges who oversaw the application of the laws of the Third Reich were put on trial, charged for the crime of judicial murder. Throughout the reign of the Third Reich, the judges issued about 25000 death warrants of which it is estimated that between 18500 and 20000 executions were carried out. The defense put up for the jurists was that they applied the law as it was, they did not make the law. The judges were found guilty. Telford Taylor, the American lawyer who prosecuted the jurists in the famous Nuremberg Trials had this to say in his closing remarks:

“This case is unusual in that the defendants are charged with crimes committed in the name of the law. These men, together with their deceased or fugitive colleagues, were the embodiment of what passed for justice in the Third Reich”.

Oppenheimer v Cattermole

This case involved a law made by the Third Reich which stripped all Jewish Germans of their citizenship. For the applicant in this case, denial of his German citizenship had tax implications for his residence status in England. The question before the English court was whether to recognize this law made by the Third Reich. Lord Cross of Chelsea had this to say:

Legislation which takes away without compensation from a section of the citizen body singled out on racial grounds all their property . . . and . . . deprives them of their citizenship . . . constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognize it as a law at all.

Presently, the Third Reich is widely seen as a disgraceful chapter in German and world history. In particular, the view that the law as it is, is different from the law as it should be even according to Hart has suffered some loss of credibility given the German experience even though it still represents a liberal code in much of the west. It has also been contended that the lessons from this episode is victory for natural law over positivism, for it is with the framework of natural law that the inherent injustice of the laws of the Third Reich can be exposed and denounced. Hart disagrees with this view, he believes that the question whether law is law is a distinct question from whether it should be obeyed and in that regard positivists are always right in saying what the law is. Indeed, Hart makes a concession on morality when he acknowledges that morality meets law at a thousand points in a nation’s journey and enters it avowedly through legislation or piecemeal through judicial decision making. In a sense Hart is right because after the fall of the Third Reich, the world came together and created a United Nations, adopted a Universal Declaration on Human Rights which have held the world from the brink of war for the last seventy years by anchoring respect for human dignity around the world, for the most part. It would seem clear that the lesson from the Third Reich is mostly that, the law cannot simply be the law. We must reserve the right to question it, think it through and determine whether it must be obeyed. It is that skill of thinking it through that legal theory provides. Lest, there will be no basis for criticizing and impugning a murderous regime acting through pernicious laws.