Beyond Legal Theory as Explanation

Legal positivism is the explanation that is most often suggested to explain why judges contribute to the atrocities of authoritarian regimes. A reason for this is that this explanation accords with two basic facts of judicial behaviour. The first is the tendency judges have, as everyone else, to adhere to authority. Obedience to authority is one of the most important factors that explain why people agree to commit the most horrible offences when ordered to. The second is more particular to judges and has to do with the ideology of not getting involved in politics. Particularly in situations with great political conflicts, taking a stand on the decisions and measures of the leaders of the government is perceived by judges as political action. Therefore, these measures are not reviewed but taken as a basis for the interpretation and application of the law.

As we have seen, these two factors have little to do with positivism as a particular theory of law and less to do with particular legal methods. We are here dealing with explanations at different levels. Authority and avoidance of getting mixed up in politics are explanations at the psychological and ideological levels. Legal theory and methodology are at the normative level and at the level of justification. Do legal theories actually influence and explain judicial practice at all? Marc Osiel states in his study of judges in Argentina and Brazil that “there need not be any moment of ethical epiphany, no point at which one feels compelled—either internally or by circumstances—to identify with the rulers or against them”. The judges “may merely evince the disposition to exercise independent judgment in a profession where competent practice requires it”.¹ Legal theories, in the opinion of Osiel, rarely impel the judge to resistance. They merely provide him with alternative rhetorical forms that the judge can apply in support or in opposition to a regime.²

A similar conclusion is drawn by Bernd Rüthers in his thorough study of German private law in the Nazi years. Substantial parts of the judicial practice during the Nazi period are impeccable from the point of view of the legal methodology employed. For this reason, the search for a legal methodology that might protect the legal order from being misused for authoritarian purposes is bound to fail.³ In his opinion, “a legal theory that is reduced to questions of methodology and social engineering is like a navigator who commands excellent instruments and methods of calculation, but lacks trustworthy points to navigate from such as stars, lighthouses and radio beacons”.⁴

Vivian Grosswald Curran observes that German and French lawyers came to similar results regarding the reinterpretation of the law to accommodate the racial category of Jewishness, despite divergent and even contradictory interpretative methods. Where the German judges used the established method of reasoning with general clauses, the French, in contrast, used their established method of avoiding reference to general legal principles. “Natural law and principles of equity, like all other legal principles and perspectives, will be colored and defined so differently at individual moments of history, that it is not they, but, rather, the values of the individual and institutional legal actors that will determine whether law is a force for or against humanity at any given moment in history”.⁵

Richard H. Weisberg shows in his study how the legal community through “a ‘desiccated Cartesianism’, a uniquely French desire to see the elaborate interpretation of the religious laws through every logical conclusion… [created] an indigenous system of rationalised persecution” of the racial laws of the Vichy regime.⁶ By formulating and discussing issues of how to interpret the racial statutes at a low level of generalization, and thus avoiding taking a stance on the very principle of racism, legal doctrine contributed to bringing about a pervasiveness and acceptability of the statute.⁷ Different approaches in other words lead to the same results: on the basis of relatively minor pieces of legislation, the legal system is transformed by legal interpretation. “To believe in a high correlation between the philosophical or methodological theory a judge applies and the specific outcome of cases is to overlook the indeterminacy embedded in the judicial decision-making process”, writes Curran.⁸

Otto Kirchheimer concluded his discussion of the influence of legal theory with the following: “In short, legal theories may dimly reflect community attitudes, and serve as welcome rationalizations, but they are scarcely primary determinants of judicial action”.⁹

There was a consensus regarding policy that Kirchheimer refers to that is evidenced in the practice of the German courts from 1933, both in their willingness to accept National Socialist ideology as underlying principles for legal interpretation and in the effect given to this ideology in cases regarding the status and rights of persons of Jewish origin.¹⁰

In any case, both formal and substantive approaches to interpretation of statutes may, in fact, be employed in order to temper the oppressive legislator and to correct popular ideas and values.¹¹ The formal approach was applied against oppressive measures by the Prussian Administrative Appeals Court in the 1930s. By refusing to reinterpret provisions for the protection of individuals that were not explicitly repealed by the Nazis, the Court sought to maintain judicial control with the police. Once these provisions were overridden in clear terms by the Nazi legislator, this defence line fell. As Osiel points out, “the more willing rulers are to enact their most repressive policies into positive law, the less legal positivism can provide a professional rationale for judicial resistance”.¹²

South African judges of opposition employed what Dyzenhaus labels the common law approach, where statutes and precedents are interpreted in accordance with the rule and reason of the common law, including principles of equality before the law, due process, and habeas corpus.¹³ Based as it is on common law with its doctrine of parliamentary sovereignty, this approach must also give way to the plain terms of legislation. It is unthinkable that judges, by employing pertinent methods of interpretation, can function consistently as a power contrary to the policy of the ruling power and the dominant societal values in the long run and maintain their position as judges of the regime. As pointed out by Rüthers, the law is the establishment, and the practical fact is that the approach to law in any state and of any given legal theory is to serve the establishment.¹⁴

The Radbruch theory is no longer accepted in contemporary theory as an explanation for the atrocities of the Nazi judges. As shown above, positivism is incompatible with the legislation of the Nazi period, judicial practice, and the legal ideology that was developed by the Nazis to influence, curb, and direct the judges. The plain facts approach is an approach to legal interpretation and application that may serve as a methodological instrument for judges when applying the law to accommodate authoritarian rulers. Once this approach is established and employed as mainstream, judicial oppression follows almost automatically if this serves the ideology and aims of the present legislation. But what can explain the establishment of this approach as mainstream besides the psychological explanation offered by Cover? Cover’s explanation does not, after all, offer any reasons beside the adherence to the authority of the legislator for this choice of action by judges. After all, in the famous experiments on obedience to authority by Stanley Milgram, one-third of the subjects did not bow to the authority of the experimenter.

Milgram distinguished between “binding factors” and “adjustments in the subject’s thinking” in explaining the subject obedience.¹⁵ The binding factors lock the subject into the situation and include politeness, a desire to honour the initial promise to contribute to the experiment and the awkwardness of withdrawal. Adjustments in thinking help the subject maintain his relationship with the experimenter, while at the same time reducing the strain brought about by the experimental conflict.

The binding factors operating on the judge are obvious. On the one hand, we have the commitments stemming from the judicial role and the perceived legal and professional duty to uphold the law. As long as he stays on the bench, the judge perceives this duty. The awkwardness of withdrawal from a collective or a group is thoroughly examined in other studies that show that people go to extremes in order not to break out into nonconformity. Group pressure operates through a basic identification among the members of the group and a strong urge not to separate oneself.¹⁶

Adjustments in a judge’s thinking are evident in the emphasis on the binding effect of the law and the stating that the law leaves no choice to the judge. Also, the strong drive to separate legality from morality and human consequences of the application of the law can help the judge to overcome the cognitive conflict that exists between his application of oppressive law and his rule of law ideals.

One would expect that judges who are critical of the ideology and aims of an oppressive legislator would find ways to justify not obeying the authority of the law as construed to serve this legislator. As we can see from the experiences of South Africa, some did and employed what Dyzenhaus terms the common law approach, but many more did not. Obviously, many other factors than mere obedience to authority are at play.

Adherence to authority may be part of an explanation, but it can only be part. After all, not all judges participate in the oppression of authoritarian regimes. Judges have both independence and a choice in determining the law and applying it. Why do they not do more to avoid obvious departures from the rule of law? One explanation could be that they develop a “moral blindness” that prevents them from relating to the consequences of oppressive measures.

Moral blindness is illustrated by the example of SS judge Konrad Morgen, who went to the Eastern Front and the extermination camps and witnessed the extermination of Jews and at the same time took up prosecution of persons involved in the killings for corruption and transgression of orders. In their study of this judge, Pauer-Studer and Velleman cite his self-understanding as a “fanatic for justice”. Pauer-Studer cites Morgen’s answer to his interrogators at Nürnberg about his visit to Auschwitz: “After inspecting the extermination machinery in Birkenau, Morgen was interested in the SS personnel who were administering ‘this apparatus’. Morgen stated that by looking at the guard room ‘he experienced for the first time a real shock’. Instead of ‘spartan simplicity’ he found in the guardroom an ensemble of couches on which SS personnel were dozing with glassy eyes, having obviously consumed a lot of alcohol during the night. Morgen found it equally revolting that these SS men were served potato pancakes by four or five young Jewish girls who were wearing civilian clothes rather than prison uniforms. What Morgen found most objectionable, indeed unbelievable, was that the SS men and these female prisoners were addressing each other by the familiar ‘du’ instead of the formal ‘Sie’”.¹⁷ Pauer-Studer draws the conclusion that “Morgen’s endeavours were flawed not so much because of a blind commitment to the orders of the supreme authorities—he sometimes ignored them and sought ways to evade them. The problem is that Morgen’s moralised self-conception, drawing on a deeply moralised understanding of law, prevented him from seeing that the political context and perverted normative background of his legal activities undermined their point and meaning”.¹⁸

Moral blindness is not limited to situations with tyrannical regimes. Many liberal states from the 1920s onwards, and as far up as to the 1970s, went quite far based on perceptions on eugenics in repressive means against people who were perceived as mentally degenerate. Those who supported measures such as enforced sterilisation were not motivated by a desire to protect the race from inferior genetic material; many of the supporters were motivated by social policy reasons, to protect against crime and antisocial behaviour and even to prevent new individuals being born into social misery and poverty. The oppressive measures were generally accepted and enforced by the judiciary. In the infamous opinion of Justice Oliver Wendell Holmes: “instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind… Three generations of imbeciles are enough”.¹⁹

How can we explain such warped senses of morality and justice? Harald Welzer speaks of the three circles of the process that drives people to abandon their moral ideals and inhibitions against committing atrocities.²⁰ The first is a societal process where the lines of conflict and division between “friend” and “enemy” are established. The employment of lethal means against the enemy in the persecution of Jews and communists during the eastern campaign of the German army in 1941 changed the prohibition against murder to an obligation to kill. The second circle consists of the social situation of the actor and his interpretation of this situation. The third, the innermost circle, is the actor’s own perception of the options that are open to him. These are, to a large extent, influenced by psychological binding factors and factors adjusting the actor’s thinking. By this, we see that the participation of judges in oppression is the result of the interplay between changes in the political and social situations of society, the professional and personal interests of the judge relating to this situation, and psychological factors operating on the individual judge.

Such binding factors may influence a judge’s thinking to such an extent that he does not see the unreasonableness or injustice in oppressive measures. As we have seen, the South African judges extended the apartheid laws of racist South Africa much in the same way as the Nazi judges extended the discrimination of the Jews. In the case from 1934 on the post office in Transvaal, the crucial issue was whether discrimination between races was a sensible and rational measure, which in itself could not be seen as unreasonable. Justice Stratford of the Appellate Division could not see that dividing the community into white and coloured was itself unreasonable “for such conclusion runs counter to accepted principle and good sense”. Justice De Villiers distinguished between discrimination on gratuitous grounds and discrimination for which “reasons may be conceived upon which such discriminations might justify and reasonably be made” and placed discrimination based upon race and colour in the latter category.

Moral blindness is cultivated by distance. The distance may be psychological, institutional, or physical. Psychological distance is created by tribal thinking and by dehumanisation of the victims of our actions. These are well-known factors in explaining how people can commit evil deeds on others. We see them in action in the racial jurisprudence of Nazi Germany and of apartheid. We also see them when people brought to trail are defined as antisocial enemies in a “war” to defend national security. Institutional distance is created by thinking about people in abstract categories, as holders of rights or duties, as offenders and defendants, instead as whole persons. This distance is inherent and necessary to legal thinking. It is worth to think about the dangers it entails in fostering moral blindness in situations where the law turns oppressive. Physical distance weakens sympathy. A special form of physical distance is the one where atrocities take place in unreal and distant settings. As Glover points out, sympathy can be weakened by a sense of unreality.²¹ Auschwitz was, as he points out, “another planet”, which made it possible to think that “this is not really happening”. This effect could contribute to the moral blindness of Konrad Mogens. Matters such as these that create distance in different ways are common psychological patterns that overwhelm, weaken, and narrow human responses.

In a reflection after two occurrences with totalitarian rule in Germany, Bernd Rüthers points out the decision the individual judge takes on whether to submit to the authority of the regime or not is not a free decision. The decision is influenced by the socialisation he has been through in becoming a judge, his family status and dependents, his social and economic means of subsistence, and many other factors.²² This makes the decision a moral decision that can be explained, understood, and justified or criticised. In order to pass judgment, it is important to understand the situation that the judges are in.

Institutional factors obviously contributed to the readiness of German judges to accept the demands of the Nazi regime. Already at the time of the Nazi takeover of power, there was almost universal agreement on the necessity for total legal reform within the legal profession. For this reason, they offered themselves at the disposal to the reform programme of the Nazis.²³

Most judges were critical of the Weimar Republic and were estranged by its policies. The reasons for this were social, political, and economic.²⁴ Members of the legal profession belonged to the conservative classes. To approach a judicial career entailed long years on meagre salaries. For this reason, it was, in practice, reserved for people with private means, exactly those parts of society that were hit the hardest by the hyperinflation of the 1920s. At the same time, unemployment among legal candidates was high. “The rude shock of the 1918 defeat, the political rise of the working class, and especially of the middle classes’ impoverishment through rapid inflation in the beginning of the twenties, had alienated the judiciary from the political establishment”, writes Kirchheimer.²⁵

The judges and the legal doctrine were at odds with the social democratic rulers in power in the Weimar state. Gustav Radbruch, as Minister of Justice, commanded the judges to adhere to a strict legal positivism and to uphold the legislation that was passed by the political majority.²⁶ The judges, though, maintained the necessity of correcting the “mistakes” of the parliamentary legislator through judicial review and judicial independent interpretation of the laws. On the other hand, no review was exercised over the emergency legislation enacted by the President of the Reich against the Weimar Parliament. “The judiciary went overboard in supporting the government against its enemies on the left, but established a consistent pattern of refusal to tackle political law breakers on the right”.²⁷