The Positivism Thesis

Disregarding the question of whether the immoral law is “law” or not and the question of the duty to follow the law, a judge is also a human being, an individual, and a member of society. As such, he has moral responsibilities. In oppressive situations, he is faced with the question, as Hannah Arendt puts it, of asking himself to what extent he is able to live with himself after having committed certain deeds.¹ Many seek to hide behind the law and to regard themselves in the mirror as an upholder of law and justice and live well with this, even if upholding law and justice means participating in the oppression of other human beings.

As we have seen in Part I of this book, judges regularly contribute to the oppression of authoritarian regimes. The fact that they have been trained and have functioned as judges under the rule of law does not prevent this. We have seen in Part II that, although they also do this under circumstances that are not justifiable, they are often excused and seldom brought to justice. From the point of view of criminal law, their actions are understandable and often perhaps more worthy of pity than of blame. The rule of law includes an ideology where judges are the protectors of the rights and the integrity of the individual and where the law applies equally to all, even to the bodies of the state. But the ideology of the rule of law does not seem to stop judges from participating in transforming the law into an instrument of oppression and persecution. Even where the conditions for punishment are not met, we may still ask the question why judges so blatantly betray the high ideals of the rule of law, of which they are supposed to be the prime guardians, and, further, whether the responsibility for this lies first and foremost in the law itself, in the judicial role, or with the individual judge himself.

At first sight, the reasons for judicial complicity may seem obvious. Judges are expected to adhere to the law even when it contradicts their own notion of morality. Most writers on law and legal theory seem to be of the opinion that judges have a duty to adhere to the law and are legally and morally prohibited to disapply a legal rule even if it leads to a morally bad result. On the other hand, many seem to agree that this duty does not apply in cases where the result is manifestly bad or extremely unjust and that judges in very bad regimes have no reason to adhere to the law at all.² Nevertheless, judges still obey the law and even defend this position, as we have seen from the argument put forward by South African judges to the Truth and Reconciliation Commission.³ How can this be?

From a sociological point of view, the answer is quite clear. Judges, as do others, have to give way to overwhelming force. Although judges have normative power over the use of the coercive power of the state, they do not control it. In situations of public hysteria of fear of destruction of the state or of internal or external threats to life and social stability, persons trained in law are not exempt.⁴ And to the extent that judges try to resist such drives of hysteria, they are liable to become the targets of public criticism that can effectively influence their behaviour. In such situations, the judiciary lacks backing from strong voices of civil society in support of legal freedoms. Elements of individual fear may also come into play. Although experience from many situations shows that dictators do not apply direct force on the judiciary, this does not mean that judges do not give their support out of fear of their personal safety.⁵

A second explanation is that authoritarian rulers often have support from the elites of society, and judges with their background and profession belong to these elites. In situations that are considered extreme, members of the legal profession and judiciary shed their professional logic and act out of class interests.⁶ The judges of South Africa offer a clear illustration of this. They were all members of the white minority and upheld its oligarchy over the majority of the population of the country. They also contributed to the transformation of the oligarchy into an authoritarian state with totalitarian elements. Politics, social forces, and class interests go a long way in explaining judicial behaviour and support to ruling elites. But politics and psychology are interwoven, writes Jonathan Glover in his moral history of the twentieth century.⁷ This is because both authoritarian rulers and schemes and institutions set up to avoid authoritarianism need the support of officials and of the public for their policies and measures to take effect. The climate of the public opinion can make a difference as to whether a disaster is unfolded or avoided.

Judges have many individual and institutional reasons to adhere to the law.⁸ Judges, like others, are disposed to finding ways of furthering their own careers. Playing along with the regime provides job security and promotions. Many judges of Nazi Germany played along with the Nazi regime because they saw in this an opportunity to re-establish a social position that they had all but lost during the Weimar Republic. A third explanation is that the courts are, after all, organs of the state. By continuing to serve on the bench, the judges accept the office of applying and enforcing the laws of the state. They are in a way morally or, at least, psychologically committed to uphold the laws under which they hold their position and power. Finally, judges may seem to find themselves in a position where they have no choice, and where the alternatives to participation seem much worse, from the perspective of the rule of law too. Some measure of judicial contribution may be better than naked force employed outside the scope of the law.

Convincing as social and political explanations may be, they still do not answer the question of how judges justify their choice to support the regime and how they reconcile this choice and the actions that they perform as a consequence of it with their inbred ideals of the rule of law and protection of individual rights. And they do not give the whole picture. There are, after all, judges who do not protect their own class interests or seek to further their own careers. The common law judges of South Africa are a powerful example of this. And as we have seen in Chap. 5, there are examples even from Nazi Germany. Judicial complicity varies under conditions that are not so easily explained by recourse to common interest and opportunism. How do we explain the differences in judicial collaboration with the German occupiers in Belgium, Denmark, the Netherlands, and Norway?

Despite the rather obvious sociological and ideological facts, judging by the academic debate within legal theory, there seems to be a pressing need for an explanation of the contribution of judges to repression. One reason for this may be that the facts of persecution and repression are so contrary to the notion of the rule of law in the western legal tradition that it is difficult to accept that the prime officers of the law take part in it. This may be particularly difficult for members of the legal profession and the judiciary because they like to think of themselves as the guardians of the rule of law. So a question that seems to have rather obvious answers from the perspective of social theory has been subject to major controversy within the field of legal theory.

From the point of view of legal theory, there must be something flawed with the legal system where judges can contribute to atrocities. Either what seems to be a legal order is not a legal order at all or there is something wrong with the approach and methods of judges in oppressive societies since they depart from their task as guardians of the rule of law. The answer may be a combination of both if one claims that it lies in the inability of such judges to distinguish between law in the true sense and the oppressive non-law of authoritarian regimes.

For the purpose of understanding judges, the most interesting part of the discussion is the discussion on the role of legal reasoning. The discussion on whether unjust laws constitute law in a real sense is of theoretical interest, but it begs the question when it comes to understanding the judge, who in any case must be able to draw the distinction in practice. And this brings us back to the question of the methods available and applicable. In the discussion on the importance of the legal method for explaining judicial contribution to oppression, different positions have been taken. As we shall see in the following, there are those who claim that judicial participation is due to the method they adhere to, whether it is legal positivism (Radbruch) or the “free law” movement (Behrends). On the other side, there are those who deny the importance of legal methodology (Rüthers, Curran) and hold that different legal methodologies provide the judges with different rhetorical forms (Osiel). And there are those who emphasise the political side of methodology (Dyzenhaus).

In the following, I will review this discussion with emphasis on the discussion on the cases of Nazi Germany and South Africa. After considering and rejecting the most common theory—that legal positivism can account for judicial atrocities—I turn to the question of to what extent the answer lies with the judge himself. I will also discuss the tenability of the position that acting as a judge for an oppressive regime to temper its oppression can be defensible as the lesser evil. Then I will consider the importance to the discussion of the last few decades’ rise of international law regimes to protect fundamental and human rights. In conclusion, I will show the politics of legal reasoning. Legal reasoning becomes political under certain conditions, namely when legislation and law can no longer be seen as two parallel forces. When the legislator wages war on law, legal method becomes a political issue both in the sense that the legislator will seek to demand a specific method and a redefinition of the legal undertaking and in the sense that the judge has to make a choice. What consequences different legal approaches have depend on the specific circumstances. One can therefore not in advance say that one method favours the rule of law whereas the other favours tyranny. The choice the judge makes of which method to employ has direct consequences for the extent of his participation in the oppression of the regime.