8 - The Moralization of Law in National Socialism

Summary

“This chapter considers the consequences of our analysis of NS law for legal philosophy. According to a prominent postwar response, Nazi law posed a special problem for legal positivism, particularly because of the positivist separation of law and morality. As a general verdict on positivism this assessment is, I argue, hardly justified given the efforts to unify law and morality in NS legal theory. The unification of law and morality extended the power of the Nazi state by giving the state access to the ethical convictions of its citizens. I end by suggesting that a normative justification for the separation of law and morality, which largely derives from understanding the function of law as securing autonomous agency and non-violent coordination with others, brings us to an understanding of law beyond the old debates between legal positivism and natural law.”