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

Research output: Contribution to journalArticle

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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