The Rise of Legal Positivism in Germany: A Prelude to Nazi Arbitrariness?

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Abstract

The paper will first look at the rise of legal positivism that left the door ajar
for Nazi arbitrariness to enter the system, and how in adopting a separation
of ‘is’ and ‘ought’ approach to the law, it left the German legal profession
little theoretical resources to resist such arbitrariness. The paper will then
juxtapose a hypothetical: whether natural law might have offered better
theoretical resources to resist such arbitrariness and conclude with a brief
reflection of the dangers of such a strict separation of ‘is’ and ‘ought’ to
legal analysis if we are to learn from history and wish to avoid a repeat of
the atrocities of the Nazi system.
Original languageEnglish
JournalWestern Australian Jurist
Publication statusPublished - 2012

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