@article{oai:sgul.repo.nii.ac.jp:00002937,
 author = {鈴木, 敬夫},
 issue = {1},
 journal = {札幌学院法学 = Sapporo Gakuin law review},
 month = {Dec},
 note = {Erik Wolf (1902-1977), a German legal philosopher active before World War II, was an admirer of Hitler and wrote several essays that are seen as giving Nazi rule of law a philosophical basis, including On the Essence of Action (Vom Wesen der Täters, 1932), The True Law in the National Socialist State (Richtiges Recht im Nationalsozialistischen Staate, 1934), and The Ideal Law in the National Socialist State (Das Rechtsideal des Nationalsozialistischen Staates, 1934/1935). Wolfʼs teacher Gustav Radbruch (1878-1949) advocated a democratic state with rule of law based on relativism (Relativismus), with legal certainty (Rechtssicherheit) at its core. This paper inquires into the influence Radbuchʼs positivist position had on Wolfʼs thought and the formation of Nazi legal-philosophical theory.
　In his most significant work, Philosophy of Law (Rechtsphilosophie, 1932), Radbruch describes the core tenet of positivism as follows, saying in essence that while the judge may hesitate to be a “servant of justice,”he must always be a “servant of legal certainty”: “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.”
　However, Wolf became an adherent of Nazism, a follower of Hitler and an active participant in the Nazi legal regime, saying: “The Nazi state is a judicial state linked to a specific ethnic group, not based on principles first as in legal positivism. It is the judge as ‘plenipotentiary of the peopleʼs community’ (Beauftragter der Volksgemeinschaft) who will enact the ideal courts of the Nazi state in our country. The actions of a judge cannot be constrained by arbitrary principles of formalistic and abstract legal certainty. Rather, they are given a firm basis by an intuitive grasp of the interests of the ethnic group, embodied by the Führer and expressed through the enacted laws.” Here, Radbruchʼs figure of the judge as “servant of legal certainty” has completely disappeared, replaced by the judge as “servant of the Führer” and released from allegiance to legal certainty. Wolfʼs argument is right in line with the Nazi state principle that “the will of the Führer is the only law.”
　However, although it seems unimaginable, according to his own memoirs and the testimony of his indirect protégé Professor Chongko Choi (1947), Wolf in 1933 followed the “testimony of his own faith and conscience” and joined the Confessing Church (Bekannende Kirche), took part in anti-Nazi activities, and took up the study of evangelistic theology of law (Evangelische Rechtstheologie). But in fact, it was right at this time that his above-described treatise advocating Nazism was published.
Today, there remain much to question about legal philosopher Wolfʼs “religiousphilosophy of law” (Religionsphilosophie des Recht)., Bulletin, 論文
Articles},
 pages = {23--64},
 title = {法実証主義の陰影…G.ラートブルフとE.ヴォルフ},
 volume = {35},
 year = {2018}
}