The Nuremberg Trials & Legal Positivism

What is a law? Can a terrible, unjust rule, still be a law?

Saint Augustine argued that “An unjust law is no law at all,” but modern jurisprudence has tended to err in the opposite direction, towards the idea of legal positivism. This idea states that, whether a certain law is good or not, is an entirely separate question to whether or not it is a law. Instead, law is based on some other factor (though the specifics depend on whom you ask), for example the state’s ability to enforce a given rule. Of course, legal positivists can still state that they believe the law should be a certain way, but it just means that how the law actually is has no bearing on it: to Augustine, an unjust “law” was never a law, while to a legal positivist, an unjust law is simply a bad law, subjectively speaking.

One objection to the positivist case, however, arose during the Nuremberg Trials following World War II. The Allied powers, having defeated the Nazis, were now looking to punish high-level Nazi officers for their crimes against humanity, for example in designing and carrying out the Holocaust, as well as crimes against other groups, such as Romani, Slavic, disabled, and homosexual people.

There was just one problem: we say “crimes”, but had they actually done anything illegal? What they had done was obviously wrong, but as we see above, legal positivism states that morality and legality are two separate questions. Yet, not only was the Holocaust completely legal when the Nazis had done it, it was the state’s official policy. Surely you can’t punish someone through the legal system, for doing something not only legal but mandated?

But, it would be completely contrary to justice, to let all Nazis get away with their crimes with absolutely no repercussions. The Nuremberg Charter justifies its prosecution, then, by clarifying that an act may be a crime against humanity “whether or not in violation of the domestic law of the country where perpetrated” (Article 6). No rigorous jurisprudential justification is given within the Charter itself for this decision, though it may be morally obvious.

However, we can look to the Radbruch formula for one possible justification: Gustav Radbruch, a German legal scholar in the Weimar Republic who was fired when the Nazi regime came into power, wrote an essay in 1946 where he moderates legal positivism with the purpose of law, namely justice. Radbruch wrote that a law may be unjust and still be valid insofar as it is a law, unless the conflict between the law and justice itself reaches an “intolerable” degree that forces justice to come first. That is to say, while yes, unjust laws can exist, if the very purpose of a law is injustice, then that law loses its nature as a law.

HLA Hart criticised Radbruch for writing “a passionate appeal supported not by detailed reasoning but by reminders of a terrible experience,” and Professor Lars Vinx writes that “To insist on the separability of law and morality, in Hart’s view, is to strip the law of an undeserved aura of presumptive legitimacy”. So, by Radbruch’s insistence that the law have at least some semblance of justice, that is, at most a tolerable degree of separation between justice and law, Hart argues that Radbruch entirely ignores legal positivism: he is, supposedly, just returning to “an unjust law is no law at all” in a very roundabout way. Prof. Vinx, in his essay (see below), defends Radbruch from this harsh criticism by Hart, but the detailed argument is outside the scope of this essay.

Overall, then, the Nuremberg Trials, aside from their important real-world consequences, give us a very good testing ground for theories of what the law actually is, and the conflicts between law and morality, since they force us to question to what extent unjust laws can be said to be “laws” in the first place, and whether punishing war criminals is just another example of a state using its power to retroactively enforce laws, a concept we can justify through careful consideration of the relationship between law and justice, or something else entirely. It is for this reason that I have chosen the Nuremberg Trials as my first case of the week.