Chapter 3 challenges the tradition in comparative legal studies, which treats Germany exclusively as a representative of the Civil Law family. Through excerpts of leading German legal theorists of the twentieth century, the chapter demonstrates that there has always been resistance to the Civil Law orthodoxy in the German legal culture. This includes a survey of the Free Law Movement (Kantorowicz), the Pure Theory of Law (Kelsen), and the Radbruch Formula (Radbruch). The chapter concludes with a discussion of the Federal Constitutional Court’s Lüth Case, in which the Court announced the Basic Law’s “objective order of values.”

Borowski argues that Radbruch’s very important criticism against legal positivism is to be found not in his writings on legal positivism but in his own legal philosophy, especially the so-called Radbruch formula; that the Radbruch formula entails a rejection of the separation thesis on both the level of the criteria for the identification of valid legal norms and the level of the nature of law; and that Radbruch’s explicit claim that legal positivism was to blame for the situation in Germany is unconvincing because the Nazis did not, as a matter of fact, hold that law is law and should be applied according to its plain meaning in all circumstances, but were actually willing to apply a statute contrary to its wording if this suited their purposes.

Dyzenhaus argues that Hart’s defence of legal positivism fails because Hart cannot without contradiction espouse both the claim that there is no necessary connection between law and morality and the claim that law has authority, that is, Herrschaft, not mere Macht. Moreover, in combination, the two claims result in what Spanish-speaking legal scholars have referred to as ideological positivism. Dyzenhaus argues, more specifically, that although Hart argued that legal positivism in the shape of the separation thesis is conducive to clear thinking and facilitates critical assessment of the law, his failure to follow through on his insights about the authority of law leads to a theory of law that is not free from the undesirable political (theoretical) consequences associated with totalitarianism, alleged by several critics of positivism.