What Positivism?
(1)
Faculty of Law, University of Oslo, Oslo, Norway
Undefined Positivism
How could the reference to positivism survive for so long as an explanation of the readiness of German judges to accommodate the oppression and tyranny of the Nazi regime? First of all, “positivism” was used in an undefined manner without a clear concept of “legal positivism” and with emphasis on different things. Radbruch equals the situation of the judiciary with the situation in the army: in the army, the slogan was “an order is an order”; in the administration of justice, it was “a law is (a) law” (Gesetz ist Gesetz). But what conception of legal positivism lies behind such a conception of law?
The most formalised concept of legal positivism at the time was that of Hans Kelsen. Setting aside the fact that Kelsen’s legal theory was by no means the predominant one in Germany before the Nazis, in fact his Reine Rechtslehre was only first published in 1934, Kelsen’s theory presupposes that the different rules of the legal system can be justified according to a basic norm. But there was no such justification of the rule of the Nazis according to any basic norm in force when the Nazis took power. On the contrary, they based the legitimation of their system on an assertion of a revolution, where the basic norm of the Weimer Republic was not carried over into the new order.
In his criticism of a court ruling from the Special Court of Darmstadt, Ernst Rudolf Huber, professor in Kiel, Leipzig, and Strasburg and one of the leading constitutional lawyers of the Nazis, explained how all of the constitutional principles of parliamentarism, federalism, distribution of power, and individual rights had been smashed by National Socialism, not through legislation but directly in a revolutionary manner, immediately through the seizure of power by the National Socialist Party.1 The basic principles of the National Socialist state were the importance of the German people, the Führer principle, and the totality of politics. These formed the founding basis for the constitution of the National Socialist state and were as such supreme principles of law. Single provisions of the Weimar constitution were only valid as far as they explicitly or implicitly were recognised by the National Socialist state and were then to be interpreted in line with the principles of the Nazi constitution and not according to their traditional interpretation.
In the ideology of the time, the Nazi takeover was thus presented as a revolution, with a front against the rationalism and positivism of the liberal state. Positivism is a danger to the state, wrote professor of public law Ulrich Scheuner, author of the thesis Die nationale Revolution: Eine staatsrechtliche Untersuchung, “because no ethically based conception of the state can grow from it. Every state must be grounded on specific customary and political values from which it serves its people, draws its authority and combats its enemies. A relativistic basis must by necessity lead to a weakening of the consciousness of the state and to an undermining of its authority”.2
Another way of perceiving Kelsen’s theory is by taking it as expressing that the basic norm changes with the identity of the legal system. Under a revolution, the old legal system is replaced with a new one that is now considered as the valid legal order. The old basic law is replaced by a new one. This conception of law cannot, however, explain why anyone should obey the new legal order. The basic norm is not a normative part of the law but a postulation like an axiom, used for descriptive and analytical purpose. A judge can therefore not invoke Kelsen’s theory as a reason for obedience to the new regime.3
On this basis, it can be concluded that the “positivism” of Nazi law could not have been the positivism of Kelsen in the sense of an obligation to adhere to a basic norm that gave Nazi law the quality of law. Despite the fact that the Nazi takeover of power claimed its legality in a provision of the Weimar constitution, its legal self-understanding denied this constitution the status of a basic norm for the regime and shifted the focus of judicial loyalty from positively enacted legislation to metaphysical concepts of “needs of the German people” and “will of the Führer”.
It therefore seems that the positivism Radbruch refers to is a concept of law where law equals orders from a sovereign who has power to enforce his commands, regardless of how these orders conform to any basic law or anything else. This understanding is supported by the fact that Radbruch himself, in the beginning of his article, juxtaposes the two maxims “an order is an order” and “a law is a law”. Stanley L. Paulson points out that Radbruch employs two different concepts of positivism—the broad obedience to authority concept when he seeks to explain the actions of the German judges and the narrower statutory legal positivism when he seeks to exonerate them.4 The same concept is employed by Carl Schmitt when he speaks of the belief in legality with reference to Max Weber’s thesis of legitimacy through legality and legality tied to any norm or command by an empowered organ of state.
This is a very broad concept of legal positivism, conflating positivism with obedience to authority. On the other hand, this concept of law accords well with the change in attitude that the Nazis brought about. The traditional loyalty to legislation was substituted by a new loyalty to the current will and policies of the dictator.5 This positivism is described in an illuminating way by Herman Jahrreiss to the International Military Tribunal in the trial against the major war criminals:
Hitler’s will was the final authority for their considerations on what to do and what not to do. The Führer’s order cut off every discussion. Thus a person who as a functionary of the hierarchy invokes an order by the Führer is not trying to claim exemption from punishment for an illegal action but opposes the assertion that his conduct was illegal; for it is his contention that the order with which he complied was legally unassailable.6
The position of Adolf Hitler in the perception among German jurists was described in the following way by one of the defendants at the US Military Tribunal in Nuremberg in a way that endows Hitler with mythical qualities like some dark force taken from the writings of J.R.R. Tolkien:
However, something entirely different has occurred; with the Führer a man has risen within the German people who awakens the oldest, long forgotten times. Here is a man who in his position represents the ideal of the judge in its perfect sense, and the German people elected him for their judge – first of all, of course, as ‘judge’ over their fate in general, but also as ‘supreme magistrate and judge.’7
We see this reverence of Adolf Hitler demonstrated by Carl Schmitt in his article after the SA purge in 1934, where between 150 and 200 people were arrested and liquidated by SS, SD, and army forces. On 3 July, Hitler enacted the Act on Measures to Defend the State, with its sole article: “The measures taken on 30 June and 1 July and 2 July to surmount the treason against the nation and state are lawful as defensive actions”. Schmitt wrote that “truly, the act of the Führer was judicial in the real sense. Acts of the Führer are not subject to law but are themselves the highest law”.8 The headline of the article was “The Führer Protects the Law”.
This relationship of the Führer to the law is also reflected in the methodological dictum that National Socialist ideology formed the highest source of law. Again, in the words of Schmitt: “All law stems from the right of vitality of the people. Any enactment of the state, any judicial decision contains law only in as far as it flows from this source. The rest is not law, but rather a network of norms of force that are mocked by a competent criminal”. This hostility to law was directed not only towards the received laws from the previous regime but also towards measures enacted by the Nazi regime itself.
This description may accurately describe how Hitler’s commands were perceived as laws. It nevertheless disregards both basic facts of how the Nazi legal order operated and basic elements of most versions of legal positivism as this concept is understood by its adherents. It does, however, agree with the Nazis’ revolutionary concept of law, which was presented as “simply the regulations given by the supreme authority of the state, regardless of their contents”, as opposed to the old concept of laws as “sovereign rules accepted by the national assembly according to specified procedures”.9 This was a new and revolutionary concept of law introduced by the Nazis—not something they carried over from the old regime or from established legal theory. This concept of law could therefore not be the reason why the judges accepted the Nazi rule; it was rather a result of their accepting it. The question to be asked is, therefore, not why the German lawyers followed the law but why they were so obedient to the authority of Hitler and the Nazi Party.
Positivism as Separation of Law and Morality
In his article “Positivism and the Separation of Law and Morals”, H.L.A. Hart discusses Radbruch’s thesis.10 According to Hart, the central tenet of positivism is not the command thesis but the separation of law and morals. Postulating law as something that exists does not necessarily mean that law equates to commands but that law is something that can be seen to exist as opposed to law as something that is desirable or something that ought to exist. What lies at the root, says Hart, is not that of a command but “what it is for a social group and its officials to accept such rules”.11
What Radbruch and Schmitt characterise as legal positivism is therefore, according to Hart, misleading because legal positivism as such does not offer an authoritative explanation of why a social group and its officials accept laws as laws. It only states that norms that are accepted can be characterised as law. But the whole point of Radbruch and his followers is to offer an explanation to explain and to guard against similar developments in the future. The commands of the Führer were accepted and must as such, according to legal positivism, be deemed as the law of Germany at the time. But they were not accepted because they were law according to the previous concept of law; they were accepted despite the old doctrines of loyalty to legislation.
The reality was therefore rather the opposite of the positivist theses: the will of the Führer was law because it was accepted as such. To invoke legal positivism as an explanation is therefore circular—they were accepted because they were accepted. The theory of Radbruch amounts to a postulate that German jurists acted according to a theory of law that stated that “anything deemed to be a law by any official with a claim to legal power ought to be accepted and obeyed as law without question”. This was not the prevailing concept of law among German lawyers before 1933, and if it was, it could hardly be characterised as a typical position of legal positivism.
Studies of the lawyers of the Weimar Republic and of the Nazi period reveal that positivism had already lost its position as a leading school of thought in the Weimar Republic and that National Socialist legal thought was diametrically opposed to positivist thinking.12