Lessons from Legal Nazism for Legal Philosophy: Radbruch and Legal Positivism

Many studies on the German National Socialist legal, political and institutional experience offer an image of the labelled "Nazi law" very different from the one Radbruch assumed when he blamed legal positivism for having propitiated Nazism and Nazi Law. In this paper, the basic features of this singular order-characterized by institutional disorder, confusion between Nazi law and the will of the Fuhrer, racial ethics or National Socialist ideology, the extreme vagueness of some of its key legal concepts, the confusion of the sources of law, in increasing of authorities and judges' discretion, etc.- are review. Then it is verified to what extent that model of law is compatible with that of each one of the different variants of legal positivism. We conclude by pointing out that Radbruch's statements regarding the relationship between legal positivism and Nazi law were erroneous and that the weight that these theses have had in the subsequent legal philosophical reflection might not be justified.