This paper will set out to fully present and demonstrate that the legislation which was enacted by the established Nazi form of government was reasonable and justifiable in the consequences even though it was not self-sufficient. For several decades, the rightfulness of the Nazi law has turn out to be a perfect theatre of war between positivists and legal experts that were more inclined to the law of nature.
As it was asserted by jurists of the theory of nature law, such as Devil and Fuller, Nazi law does not qualify to be one because it contradicted the moral code, hence, it cannot be called law.
In disparity, Hart, who was rated as one of the most prominent positivists, fervently believed that it was valid and qualified to be a law obviously for the fact that the enactment method and process was procedural and was acknowledged by the Nazi societal office. Before analyzing different arguments to the law, the paper has a brief historical background and an introduction regarding the modalities in which the Laws of the Nazi were legislated, the types of legislations that were enacted by the Nazi and the roles the judiciary and the lawyers played in the process. The paper has endeavored to discuss legal issues that arose from the Nazi Law, both from the perspectives of positivism and the theory of nature law.
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On 23rd March, 1933, the just elected members of the Reichstag summoned a meeting at the Kroll Opera House in the largest city of Germany’s FederalRepublic, Berlin so as to ruminate the idea of passing Hitler’s Enabling Act. The aftermath of the meeting saw the law officially referred to as the %u201BLaw for Removing the Distress of the People and the Reich’. Evenly, it passed with an overwhelming support which effectually emasculated democracy in Germany and consequently led to the establishment of a legalized system of dictatorship under the reign of Adolf Hitler. Since then, under the ruinous regime of Hitler, the State and not an individual, was regarded as supreme. Hitler, therefore, was qualified to enact or reform laws the way he wanted it.
Austin (1790-1859), one of the earlier and self proclaimed positivists, sought to give an explanation of law with regard to the commands given out by "a sovereign". His best known works, The Province of jurisprudence Determind, clarified that a law is description of a rule laid down "for the guidance of an intelligent being by an intelligent being having power over him". The view of the law from this perspective is, essentially, of a psychological nature given that it is fixated on the perceptions by "the governed" within a given community. The most important feature of Austin's much-criticized theory was found on how he based the law on the conceptual of power wielded by the superiors and not based on the philosophies of either "good" or "bad", "just" or "unjust", but on the concept of power exercised by a superior. Law can be much comprehended only if there is a distinction between interrogations of the law and the elements of sanction, command, sovereignty and duty. That law may be understood with due regard to the decrees of independence and sovereignty corroborated and substantiated by sanctions. Legality is determined by source, not by any measure of fact rather than questions of value. As described by Cotterrel:
Austin...sees law as a technical instrument of government or administration, which should, however, be efficient and aimed at the common good as determined by utility.....All laws, rights and duties are created by positioning rules, the laying down of rules as an act of government. Consequently there can be nothing inherently sacred about civil or political liberties. To the extent that they are valuable they are the by-product of effective government in the common interest.
Based on Austin's theory, both Nazi law and Nazi legal system were a valid law and completely legal system. Apparently, Hitler was the absolute authority of the Nazi regime, after legally passed Enabling Act, he was then be the unique person who was supreme above state, and of course above law also. The position and the function of Hitler at Nazi regime definitely felt into the definition of “sovereign.” All the laws that were enacted by Hitler set out to segregate the Jews from Germans by limitations of their living areas and the prohibition of any sexual relationship between the two races. Duties were executed by those in charge of the law for Germans to keep the "purity of blood". They were chains of command that were laid and the laws had to be by everyone. Otherwise, sanctions and other ramifications would be severe and great.
The description of the law as was claimed by Austin was riddled with a lot of controversies and it was criticized for an assortment of reasons. Argumentatively, postulations from Hart, another positivist, through his comprehensive examination of Austin’s theory in The Concept of Law (1961) underscored the indispensable weakness of "the command theory of law".
At first, Austin's viewed the law basically as "orders backed by threats". Outwardly, the criminal law may be endowed with rich and numerous examples of this concept, in addition to the Nazi law. This sharply contradicts the pronouncements that were made by Hart thus,
There are other varieties of law, notably those conferring legal powers to adjudicate or legislate (public powers) or to create or vary legal relations (private powers) which cannot, without absurdity, be construed as orders backed by threats.
Austin's theory, at present, was held that it was "narrowness of perspective" of law with few roots in established historical fact. Therefore, if based on Austin's theory only, the legitimacy and legality of Nazi law would not have been recognized or acknowledged by many people.
Legal positivism is "in". Recent years have seen the occurrence of a paroxysm in the development and purification of several ideas that were originally conceived, in particular, by Professor Hart. Law as a "social phenomenon", which is how Hart views it, involves an allusion to "the characteristics of the human condition". Within a society, there exists the need for rules to protect "persons, property and promises".
The term "rule" is not to be interpreted and viewed according to Austin's terms, namely, as "a command". By all means, the very idea that rules are phenomenal consists purely in externally observable habits or activities. Hart, disparately to Austin, was more concerned with the validation of the fact that far more substantial than commands, sovereignty, and sanctions, is the social basis and foundation of legal rules.
Hart in one of his arguments claims that a diminutive community, interdependent and bound by a collective belief and sentiments and placed in an unwavering environment, might be capable of living with a set of rules imprecise to the "primary rules of obligation" as he so described.
In contrast, this would be impossible in a larger community, on account of the very nature of the principal rules. Consequently, doubts might be apportioned as to what the established rules are all about, or as to the foundation on which those doubts are to be settled or resolved: the problem likely to be created would be one of uncertainty. Additionally, the static nature of the primary rules might bring with it other problems, for instance, a premeditated adjustment to a new state of affairs might be a tall order. A third imperfection would be on the maintenance of the law as there would be no legally instituted and a dedicated official agency authorized to find out whether or not a rule has not been followed, i.e. inefficiency.
An introduction of a secondary rule to do away with the three aforementioned defects would further compound the problem by bringing about the emergence of a non-recognizable legislative order which according to Hart, the concept of this law may be most revealingly characterized as "a union of primary and secondary rules".
According to Hart, the most significant secondary rule is the "rule of recognition". This rule spells out some features such as possession, which by an unsubstantiated rule is a decisive indication that the established rule is legal and not merely a rule of custom, morality, or religion. As Hart says:
Hart therefore viewed Nazi law as a law because it satisfied the prerequisites of the "rule of recognition". Enabling Act evidently postulated that Hitler would get hold of the jurisdiction, legislative and executive power. By passing the act at German Parliament with a prodigious support from the members of Parliament, it suggested that Hitler was an exceptional law-maker who was acknowledged by officials and citizens alike. As such, all the law Hitler made, notwithstanding how evil it was and what kind of form it was, it was the "law" and people had to obey it. This is attributable to the fact that the source and procedures followed in making of laws were initially accepted by the people in this communal setting. Hence, it was now certain that Nazi law was law. Hart stated the two conditions that need to be satisfied, that is whether it was to be a valid law or whether a legal system was to exist,
There are therefore two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand, those rules of behavior which are valid according to the system's ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials.
The former of these conditions encompasses a general practical compliance by the people to the rules of the community whose validity originates from the rule of acknowledgement. It is necessary to perceive that Hart is not advocating for the need to "accept" the primary rules or the rules of recognition by the members of the society. Instead, the officials barely need to espouse an "internal point of view", which comes as the second condition. The officials are obliged to only comply with those secondary rules, and they must mutually "accept" them. This point is particularly to the acceptance of the "rules of recognition", the given collective standards for creating and enunciating judicial verdicts. Therefore, when a German arbitrator at "People Court" asserted that no court of justice may probe into the style and fashion by which Hitler came up with law, he was demonstrative of the acceptance of the rule with particular reference to recognition as it denoted authority and power that Hitler wielded and exercised. Therefore, law as was enacted by the ruinous Nazi regime was certainly a valid law since it satisfied all the necessary requirements that were believed by Hart hence it was valid and was within the legal system that was in existence.
A different school of thought holds that the natural law theory defines law as the only laws that fit into a particular code of morals can genuinely be referred to as law. They maintained that Nazi law therefore did not qualify to be law since "it was too evil to be law".
Lon Fuller (1902-78) principally is concomitant with his secular position of natural law arguing that it has an "inner morality", and that a legal establishment is the deliberate "enterprise of subjecting human conduct to the governance of rules" which is regarded as below. Fuller adopted approach to natural law. The eight ways of making law are manifested in his eight desiderata; "eight kinds of legal excellence toward which a system of rules may strive" embodied in the "inner morality of law". It is an embodiment of what he calls "a morality of aspiration and not of duty. Its primary appeal must be a sense of trusteeship and to the pride of the craftsman".
Succinctly put, law has an "internal morality" according to Fuller. He argues that a legal system is the purposive human "enterprise of subjecting human conduct to the guidance and control of general rules". That a legal system is bound to obey certain procedural standards regardless of what it is intended for. If disregarded it only leads to an exercise of state coercion. He recounts the hard-luck story of King Res, and the eight ways he failed to make law, perfectly befits Hitler. These are the routes to failure.
The first and the most obvious lies in a failure to achieve rules at all so that every issue must be decided on an ad hoc basis. The other routes are: 2) a failure to publicize, or at least to make available to the affected party, the rules he is expected to observe; 3) the abuse of retroactive legislation, which cannot itself guide action, but undercuts the integrity of rules prospective in effect, since it puts them under the threat of retrospective change; 4) a failure to make rules understandable; 5) the enactment of contradictory rules or 6) rules that require conduct beyond the powers of the affected party; 7) introducing such frequent changes in the rules that the subject cannot orient his action by them; and, finally, 8) a failure to achieve congruence between the rules as announced and their actual administration.
As a refusal to regard Hitler’s "law", it is debatable that conformity with Fuller's "internal morality" doesn’t warrant a just order; the legal system in apartheid South Africa probably conformed to all the eight principles even though it subjectively defined race.
The natural law theory is not preferred here because it has the same validity everywhere, and does not depend on our approval of it or not. With it, there is the commonplaceness of conflicts.