Spirit without letter: How volkish Nazi law falls outside Fuller’s and Hart’s concepts of law

Abstract

National Socialism never achieved its vision of ‘law’. The 1958 debate between Fuller and Hart, and subsequent literature in the Anglo-American legal philosophical tradition has thus never addressed the question of what concept of law is compatible with Nazism’s ultimate goals and what we might learn from such a concept about the relationship between law and evil. This essay first shows how law reform was far from complete by the time the war ended. It then demonstrates how the mystic, ‘volkish’ movement informed the Nazi vision for law. It will then be seen that this concept simply does not fit with some very basic shared assumptions from which the Fuller and Hart debate proceeds. This reveals the degree to which concepts of law within the Anglo-American jurisprudential tradition must accept that law has a specific moral content. Such concepts of law are incompatible with a bullying form of oppression that was at the core of Nazism’s moral bankruptcy.