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From when Hitler passed the Enabling Act in 1933, to when the Third Reich implemented the Nuremberg Race Laws of 1935, the legal framework of Germany had swiveled from accommodating a democracy to abetting a genocide in the span of two years. The question I sought to answer was: were these newer laws legitimate?
Theoretical Framework
To answer the question, we must first briefly address the core philosophical tension behind the assumption of legal authority which exists between natural law theorists and legal positivists. It is not wholly-encompassing, but still adequate, that the contest between natural law and positivist law be summarized as a clash of “what the law stands for” versus “what the law is”.
Natural law theories posit that the law is sourced from a certain moral standard. The natural law theory of morality will argue — as St. Thomas Aquinas did — for the existence of moral truths in human nature, and that from these truths comes moral law. An example is that the moral principle of “you should not kill” is derived from the nature of rational human beings as valuing life. The natural law theory of law, which can agree with or differ from that of morality, contends that established laws contrary to moral law, or universal moral principles, are illegitimate — and here is the heart of the famed expression lex iniusta non est lex, or “unjust law is not law” — and may go so far as to conclude not only are laws legitimized by universal moral principles, but that some are even their codifications. A law allowing killing would be illegitimate because it does not conform with the moral principle of “you should not kill”, regardless of whether or not the principle is a logical manifestation of human nature.
In contrast, legal positivists separate the existence of law and its moral worth, instead presenting law as a set of rules discernable through social sources. Essentially, law relates to social fact — or, as H.L.A. Hart posits, social “practices” — and not social morals. Morality is not the foundation for law, nor does it validate or invalidate it; rather, law originates from traceable sources such as governmental structures and judicial decisions. It is also a creation — this Austin argues in his command theory of law — of the sovereign and legitimized by the sanction or authority that comes with it. Though this theory has been criticized for establishing “the sovereign” as an unrestrained origin of law when Constitutions can limit legislators and designations of “a sovereign” are harder to discern in democracies, the greater legal positivist angle is upheld by many modern legal scholars. To their natural law compatriots, they might retort: lex iniusta esse posset, sed lex stet – law can be unjust, but it would remain law.
So what legitimizes law? Natural law theorists would argue: a logical derivation from morality. Legal positivists, on the other hand: authority and social practice. The two “mascots” of this conflict are H.L.A. Hart and Lon Fuller. In direct opposition to Hart’s rule of recognition, Fuller claimed that law necessarily contained a moral facet in its objective to “do justice”, itself a morally-subjective goal. Though he was more so a natural law theorist in the procedural sense, where he claimed morality in the process of drafting, implementing, and enforcing law than in its containing any “moral truth”, his argument divested strongly from the independence-from-morality that positivists argue law to possess.
Without resolving the debate in this article, we must use both theories to evaluate the laws during the Third Reich and determine whether they were, in either respect, legitimate.
Evaluating the Reich
From a positivist standpoint, the Third Reich’s laws could be seen as legitimate. The Enabling Act of March 23, 1933 effectively transferred legislative authority from the Reichstag to Hitler’s Cabinet and destroyed the division of powers present in the Weimar Republic. However, from a positivist standpoint, the act passed through formal parliamentary procedure, was ratified – though with some blackmail and threats – with the semblance of legality backed by the Weimar Constitution, and gave the Nazi Party the authority to pass laws without the consent of the Reichstag, or the lower house of Parliament, or the President (who would die a year later). Afterwards, many of the Nazi laws were enacted with little public resistance; for example, the April 1933 Law for the Restoration of the Professional Civil Service, which excluded Jews and political opponents from participating in the government, faced little public opposition. This reflected a social acceptance – and even, for some populations, approval – of the laws. These laws also began to bleed into the veins of the German courts: the Reich Supreme Court (Reichsgericht) upheld antisemetic decrees, and this conformity to the laws supports H.L.A Hart’s rule of recognition because officials treated the laws as valid. The rule of recognition is given more weight over the natural legal theorists’ contrasting theory – namely, Austin’s idea of “sovereign” recognition – in Republics where there is no discernible law-making “sovereign”. However, with the normalization of the Führer’s Princip (or Führerprinzip), the authority/sovereign became clearly Adolf Hitler, and the rule of recognition converges with the sovereign rule: Hitler validates both. In Austin’s terms, Hitler was the legally-ascended sovereign, and his commands, backed by effective sanctions, constituted law. His prinzip was then devoutly followed by his followers in the Nazi Party, completing the rule of recognition. So, under the positivist lens, the legal criteria for lawmaking was met: a legally-recognized authority issued a decree that was socially and institutionally accepted (and enforced by sanctions – here Austin would validate these as laws). To the positivist, the laws of the Nazi regime were legitimate, regardless of how abhorrent their content.
A natural law theorist would arrive at the opposite conclusion. To them, the legitimacy of law is inextricable from moral reasonability. Laws that contravene the universal principles of justice, equality, and human dignity – themselves moral values – cannot qualify as law, regardless of how legitimately passed. The Nuremberg Race Laws, which stripped Jewish citizens of their rights, prohibited intermarriage, and legalized systemic discrimination, directly violated moral principles foundational to human reason and nature. Here is where we must make another differentiation: the natural law theorist with moral values aligning with those of the Nazis would argue that the laws are sustained because societal morals at the time supported genocide and antisemitism, and they would see justice done in the deportation and annihilation of the Jews. The natural law theorist with the opposite moral compass – here named Natural Law Theorist #2 – would disagree. The difficulty of determining which theorist is right lies in deciding what the morals shared by German society at the time really were. Support for the Holocaust was certainly not ubiquitous, nor was support always genuine, given the propaganda dissident threats prominent at the time. Additionally, the process of law-making in the Nazi Party is also an issue of contention. Lon Fuller would have us disregard laws made from immoral processes. Consequently, Natural Law Theorist #2 would argue that the Nazi legal system abandoned legality in favor of unjust, racialized decrees, and that these laws – though formally enacted – lacked the moral integrity required for genuine ratification; therefore, we should condemn Nazi legislation as a perversion of lawmaking itself. However, this, too, is subjective: the “morality” of lawmaking is not a measurable standard.
Conclusion
Whether Nazi laws were legitimate ultimately depends on the definition of “legitimacy”. If legitimacy is procedural and positivist – which is derived from authority and adherence to social rules – then the answer is yes. The Third Reich maintained institutions, courts, and codified decrees that fit the positivist definition of a functioning legal system. However, if legitimacy is moral, or dependent on conformity with shared ethical principles, then these same laws were illegitimate. However, the second standard is decidedly subjective. Though today we know the Party to have committed atrocities under the wing of unjust law, others – especially at the time of the Party’s influence – could just as easily define 1940s German “social morality” as one that permitted ethnic cleansing. The second theory – of natural law – is therefore harder to argue, and this exposes a flaw in the determination of legal validity that may even threaten us today. When we can only, by a certain standard, condemn the legitimacy of laws by their authority in a government – especially a corrupt one – how can we ensure they are representative of the people?
The German legal transformation between 1933 and 1935 therefore exposes the fragility of “law” when stripped of moral accountability. The Nazi regime demonstrated how legitimate legality, under positivist analysis, can coexist with profound injustice. To the average German citizen of the time – whose understanding of law and society fell under the regime and may have been manufactured to accept its authority – the Nazi’s decrees could have appeared legitimate, and their practice and enforcement permissible. They may even have been seen by some as moral. Yet from the moral standpoint of today and of those that resisted the Reich, they were fundamentally illegitimate, violating both natural reason and the ethical purpose of law. Laws are not simply legitimate because they have been passed and practiced; they must also adhere to societal moral standards. It is important to question the law from both a positivist and natural law angle so as to evaluate if it is both fair in existence and just in nature. In closing, Nazi Germany taught us that legality without morality may still produce law – but not justice.
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