In critiquing the legal system of the Third Reich, German legal scholar Gustav Radbruch (1878-1949) posited “conflict of positive law” (gesetzliches Unrecht)* as a key characteristic of the Nazi government. However, this “conflict of positive law” may, in fact, may be related to the concept of “legal certainty” (Rechtssicherheit) that Radbruch himself advocated, and furthermore, Radbruch may bear some of the theoretical responsibility for its incorporation by his protégé Erik Wolf (1902-1977) into the law-disregarding Nazi regime. On the whole, this essay inquires into the particulars of the legal positivist position that Radbruch upheld.
In his magnum opus Rechtsphilosophie (Philosophy of Law, 1932), Radbruch argued that a judge that should be “the servant of legal certainty” rather than “the servant of justice,” and strengthened the foundations of legal positivism, which asserts that “the law is the law.” According to Radbruch, “Justice is the second great task of the law, while the most immediate one is legal certainty, peace, and order... We despise the person who preaches in a sense contrary to his conviction, but we respect the judge who does not permit himself to be diverted from his loyalty to the law by his conflicting sense of the right.” This clearly represents the naturalistic and positivistic tendencies, and the Neo-Kantian axiomatic tendency, in judicial methodology. However, in Germany after its defeat in World War I, the ideological values and ideals advanced by Neo-Kantianism did not provide a viable path to regaining ethnic pride. Julius Binder (1870-1939), whose ideas were originally rooted in Neo-Kantianism, was quick to change his position to the Neo-Hegelian philosophy of law in 1933 when the Nazis came to power, and stated that “the spirit of the German people is the concrete and universal foundation of the German state and its laws.”
The criminal law scholar Erik Wolf was one of those influenced by this mode of thought. Wolf clearly discarded the Neo-Kantianism that he inherited from his teacher Radbruch, interpreting the criminal offender as a type of person who harms the interests of “the people's community,” and arguing that whether or not to impose punishment should be based on the value judgments of the people's community. For him the sole standard for Richtiges Recht (“true law”), that is, the actual law governing the state, was the Nazi law of the Third Reich. Furthermore, he regarded judges, who Radbruch saw as “the servants of legal certainty,” as the “plenipotentiary of the people's community” (Beauftragter der Volksgemeinschaft), which must unquestionably support the Nazi rule of law.
At a time when freedom of thought and expression were severely restricted, Radbruch wrote numerous essays opposing the Nazi regime. Among them was Cicero in German: On Johann von Schwarzenbergs Translation of De Officiis 〔On Duties〕(Cicero deutsch: Zu Johann von Schwarzenbergs Officien–Übersetzung, 1942), Which contains the following passage: “A tyrant, or a mad dog on the rampage: He who kills them is to be praised and honored.” Cicero was supporting the assassination of the tyrannical Caesars, and Radbruch cited this viewpoint in this essay, while Wolf welcomed the rise of the dictator Hitler. What role did relativist theory play in the works of these three men?
内容記述
研究ノート
Note
雑誌名
札幌学院法学 = Sapporo Gakuin law review
巻
35
号
2
ページ
57 - 88
発行年
2019-03-25
ISSN
0910-0121
その他のタイトル
Erik Wolf in the early years of Nazism: Opposition to G.Radbruch's anti-Nazi stance
出版者
札幌学院大学総合研究所 = Research Institute of Sapporo Gakuin University
ナチ生成期のエーリック・ヴォルフ ― ラートブルフの反ナチ論考との対峙 ―
SG-35-2-057.pdf
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