Abstract
It has been remarked that the ‘rupture thesis’ prevails within the Anglo-American legal academy in its understanding of the legal system in Nazi Germany. This article explores the existence and origins of this idea—that ‘Nazi law’ represented an aberration from normal legal-historical development with a point of rupture persisting between it and the ‘normal’ or central concept of law—within jurisprudential discourse in order to illustrate the prevalence of a distorted (mis)representation of Nazi law and how this distortion is manifested within the discourse today. An analysis of the treatment of Nazi law in two major 50th anniversary publications about the 1958 Hart–Fuller debate, and a review of representations of the Third Reich within literature from the current discourse, demonstrates that the rupture thesis continues to be reproduced within jurisprudence. An examination of the role of Nazi law in the Hart–Fuller debate itself shows that it can be traced back to the debate, where it was constructed through a combination of conceptual determinism and historical omission. It concludes that the historical Nazi law has great significance for the concept of law, but neither positivism nor natural law has properly theorised the nature of the real Nazi legal system.
Highlights
It has been remarked that a ‘rupture thesis’ prevails within the Anglo-American legal academy in its understanding of the legal system in Nazi Germany
Beyond their link to the Hart–Fuller debate itself, the works considered in this article are connected by the enduring way the Nazi legal system is represented within jurisprudential discourse; its entrenched role as a source of eye-catching examples in elaborate debates between proponents of positivism and natural law, rather than a manifestation of law with anything of substantive note to contribute to our theoretical understanding of the general concept of law
With reference to legal discourse, because Nazi Germany was used, and continues to be used, in the service of philosophical arguments about the nature of law that it does not support, both by positivists and natural lawyers, whereas it could instead be used as evidence to disrupt the dialogic dominance these paradigms currently enjoy
Summary
It has been remarked that a ‘rupture thesis’ prevails within the Anglo-American legal academy in its understanding of the legal system in Nazi Germany. To illustrate how Nazi law is represented within jurisprudential discourse, and demonstrate the connections between current jurisprudential treatment of Nazi law and the Hart–Fuller debate, this paper will first interrogate the representation and significance of Nazi law in the contributions to the two 50th anniversary collections These publications are useful as a snapshot of the Anglo-American jurisprudential community, incorporating papers from some of the field’s most prominent legal philosophers, as well as being an excellent indication of which aspects of the Hart–Fuller are thought worthy of reflection and consideration today. The arguments presented here are in no way an endorsement of Nazi law or legality, nor do they amount to a claim that Nazi law is necessarily paradigmatic of the central case of law or is the same in all respects as other instances of law
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