Accommodating Nazi Tyranny? The Wrong
Turn of the Social Democratic Legal
Philosopher Gustav Radbruch After the War
DOUGLAS G. MORRIS
I. The Virtues in Natural Law: Radbruch's Misuse of Natural Law
after World War II
What is the relationship between Nazism and natural law—the notion of uni
versal standards, which arise from either God, revelation, nature, rational
ity, or morality, and which human-made statutes cannot break? In 1946, in
the wake of World War II, Gustav Radbruch, one of Germany's most re
spected Social Democrats and legal philosophers, published his influential
article, "Statutory Injustice and Suprastatutory Law," which grappled with
a pressing issue of postwar justice.1 Should courts deem judges criminally
responsible for having earlier convicted defendants, and often sentenced
them to death, based on denunciations by family, neighbors, or rivals, de
nunciations that the Nazi regime had encouraged but that a fair-minded
government must condemn? As a matter of jurisprudence, Radbruch set
1. Gustav Radbruch, "Gesetzliches Unrecht und Ubergesetzliches Recht," Siiddeutsche
Juristen-Zeitung 1 (1946): 105-8, reprinted in Radbruch, Rechtsphilosophie, 8th ed., ed.
Erik Wolf und Hans-Peter Schneider (Stuttgart: K. F. Koehler, 1973), 347-57.
Douglas G. Morris, PhD., J.D., is a practicing criminal defense attorney with
Federal Defenders of New York, Inc., and an independent legal historian, special
izing in Weimar and Nazi legal history <douglasgmorris@yahoo.com>. He is au
thor of Justice Imperiled: The Anti-Nazi Lawyer Max Hirschberg in Weimar
Germany (Ann Arbor: University of Michigan Press, 2005). He thanks Volker
Berghahn, Jonathan Bush, David Kettler, Kenneth Ledford, Frank Mecklenburg,
Iris Freyer-Nachum, Law and History Review's two anonymous readers, and his
wife, Marion Kaplan, for their careful readings of drafts and their encouragement
and support.
Law and History Review August 2016, Vol. 34, No. 3
© the American Society for Legal History, Inc. 2016
doi: 10.1017/S0738248016000213
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650 Law and History Review, August 2016
forth his famous formula, which declared that judges must adhere to pos
itive or statutory law, except in rare circumstances in which such law vio
lated fundamental principles of justice. In his words, "[PJositive law
secured through legislation and power, prevails, even if it is substantively
unjust and inexpedient, unless the tension between positive law and justice
reaches such an intolerable level that the law as 'false law' must yield t
justice."2 As a matter of history, Radbruch excused Nazi-era judges wh
had missed his jurisprudential point, because they had succumbed to th
legal theory of positivism that had long permeated German legal thinking.
"Positivism," Radbruch wrote, "with its belief that 'law is law' rendere
the German judiciary defenseless against arbitrary and criminal laws."3
Radbruch's analysis of the nature of judicial accountability was so stim
ulating and his reputation so impressive that even a decade later the
Anglo-American law professors H. L. A. Hart and Lon Fuller engaged
his arguments in their celebrated debate about whether legal theory should
rest on positivism or natural law.4 In Germany itself, Radbruch's analysis
stamped postwar legal thinking, influencing judicial decisions involving al
leged crimes committed in Nazi Germany and also in East Germany, an
2. Ibid., 353; see also Gustav Radbruch, "Die Erneuerung des Rechts" (1947), in
Naturrecht oder Rechtspositivismus? ed. Werner Maihofer (Darmstadt: Wissenschaftlic
Buchgesellschaft, 1962), 1-10; Gustav Radbruch, "Fiinf Minuten Rechtsphilosophie
Rhein-Neckar-Zeitung (September 12, 1945), in Radbruch, Rechtsphilosophie: 327-2
Gustav Radbruch, "Gesetz und Recht" (1947), in Gustav Radbruch, Gesamtausgabe
Rechtsphilosophie, Band 3, ed. Arthur Kaufmann (Heidelberg: C. F. Mtiller Juristisch
Verlag, 1990), 96-100; see generally Albrecht Langner, Der Gedanke des Naturrech
seit Weimar und in der Rechtsprechung der Bundesrepublik (Bonn: H. Bouvier, 1959),
165. This translation and all others are my own unless otherwise noted.
3. Radbruch, "Gesetzliches Unrecht," 352; see also, ibid., 347, 354-56; Radbruch, "Die
Erneuerung des Rechts," 2; Radbruch, "Fiinf Minuten Rechtsphilosophie," 327;
Radbruch, "Gesetz und Recht," 96; Gustav Radbruch, "Vorschule der Rechtsphilosophie:
Nachschrift einer Vorlesung" (1947), reprinted in Gustav Radbruch, Gesamtausgabe, Vol.
3: Rechtsphilosophie III, ed. Harald Schubert and Joachim Stoltzenburg (Heidelberg: C.F.
Muller, 1990), 127-227; see generally Thomas Mertens, "Nazism, Legal Positivism and
Radbruch's Thesis on Statutory Injustice," Law and Critique 14 (2003): 277-95; and
Stanley L. Paulson, "Lon L. Fuller, Gustav Radbruch, and the 'Positivist' Theses," Law
and Philosophy 13 (1994): 313-59, 327.
4. Lon L. Fuller, "Positivism and Fidelity to Law—A Reply to Professor Hart," Harvard
Law Review 71 (1958): 630-72; H. L. A. Hart, "Positivism and the Separation of Law and
Morals," Harvard Law Review 71 (1958): 593-629; see also Brian H. Bix, "Radbruch's
Formula and Conceptual Analysis," American Journal of Jurisprudence 56 (2011): 45
57, 48^19; and Kenneth F. Ledford, "Judging German Judges in the Third Reich:
Excusing and Confronting the Past," in The Law in Nazi Germany: Ideology,
Opportunism, and the Perversion of Justice, ed. Alan E. Steinweis and Robert D. Rachlin
(New York, Oxford: Berghahn, 2013), 161-189.
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Accommodating Nazi Tyranny 651
generating a steady stream of scholarship, which has not yet abated.5 In the
mid- to late 1940s, his arguments came as a godsend to those German judges
who had recently served under the Nazi regime. Adopting his reasoning, they
bemoaned their own plight during the Nazi years, and found themselves blame
less then, when an all-pervasive positivism had entrapped their thinking. And
they congratulated themselves on their newfound devotion to natural law.6 Not
all expressed themselves with Radbruch's grace. In 1950, 5 years after foreign
armies had liberated inmates from Auschwitz to Dachau, the law professor
Rudolf Smend, who had spent the Nazi era teaching law at the University of
Gottingen, praised his fellow jurist Erich Kaufrnann for challenging positivism
back in 1921, and thus for assuming the historic task of "liberating" a genera
tion that then "still stood in the wasteland where positivism had led us ... and
that faced the punishment of automatic loss of scholarly respect for every at
tempt to escape this concentration camp."7
Even though Radbruch never developed the concept of something be
yond positive law into a systematic theory,8 his commitment to the role
5. See Fritz Bauer, "Das 'gesetzliche Unrecht' des Nationalsozialismus und die deutsche
Strafrechtspflege," in Gedachtnisschrift fur Gustav Radbruch, 21. 11. 1878-23. 11. 1949,
ed. Arthur Kaufmann (Gottingen: Vandenhoeck & Ruprecht, 1968), 302-7; Bix,
"Radbruch's Formula," 49-50; and Markus Dirk Dubber, "Judicial Positivism and Hitler's
Injustice," Columbia Law Review 93 (1993): 1807-32, 1807-08; Mertens, "Nazism," 292
95; Paulson, "Fuller, Radbruch," 317, 317-318 fn. 11; Stanley L. Paulson, "Radbruch on
Unjust Laws: Competing Earlier or Later Views?" Oxford Journal of Legal Studies 15
(1995): 489-500, 491-92; Giuliano Vassalli, Radbruchsche Forrnel und Strafrecht: Zur
Bestrafung der "Staatsverbrechen" im postnazistischen und postkommunistischen
Deutschland (Berlin: DeGruyter, 2010); and Manfred Walther, "Hat der juristische
Positivismus die deutschen Juristen im 'Dritten Reich' wehrlos gemacht? Zur Analyse und
Kritik der Radbruch-These," in Recht und Justiz im "Dritten Reich", ed. Ralf Dreier and
Wolgang Sellert (Frankfurt am Main: Suhrkamp, 1989), 323-54, 346-47.
6. For example, Maihofer, Naturrecht; Hubert Schorn, Der Richter im Dritten Reich:
Geschichte und Dokumente (Frankfurt am Main: V. Klostermann, 1959); Hermann
Weinkauff, Die deutsche Justiz und der Nationalsozialismus: Ein Uberblick (Stuttgart: Dt.
Verl.-Anst., 1968); see also Ledford, "Judging German Judges," 171-73; Ingo Miiller,
Hitler's Justice: the Courts of the Third Reich (Cambridge, MA: Harvard University
Press, 1991), 219-25, 276; Paulson, "Fuller, Radbruch," 357-59; and Walther, "Hat der
juristische Positivismus," 348-51.
7. Rudolf Smend, "Zu Erich Kaufmannns wissenschaftlichem Werk," in Um Recht und
Gerechtigkeit: Festgabe fur Erich Kaufmann zu seinem 70. Geburtstag (Stuttgart und
Cologne: Kohlhammer, 1950), 395, as quoted in Langner, Der Gedanke des Naturrechts,
50, and Manfred Friedrich, "Erich Kaufmann (1880-1972): Jurist in der Zeit und jenseits
der Zeiten," in Deutsche Juristen jiidischer Herkunft, ed. Helmut Heinrichs, Harald
Franzki, Klaus Schmalz, and Michael Stolleis (Munich: C. H. Beck, 1993), 693-704, 699.
8. Erik Wolf, "Einleitung des Herausgebers: Gustav Radbruchs Leben und Werk," in
Gustav Radbruch, Rechtsphilosophie, 71; see also Kristian Kiihl, "Riickblick auf die
Renaissance des Naturrechts nach dem 2. Weltkrieg," in Geschichtliche
Rechtswissenschaft: Ars Tradendo lnnovandoque Acquitatem Sectandi. Freundesga.be fur
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652 Law and History Review, August 2016
of some form of natural law was emphatic: "a law higher than statutes, nat
ural law, God's law, rational law, in short a suprastatutory law by which
measure injustice remains injustice even if cast into the form of statutes."9
But the impulse of German jurists after the war, encouraged by Radbruch,
to construe the Nazi legal system through the lens of natural law is ironic.
While as a matter of jurisprudence, his turn toward natural law was provoc
ative, as a matter of history, his blaming positivism for the failings of
Nazi-era judges was simply wrong. Scholars of German legal history
have made the point. Nazi legal doctrine was antipositivistic, and positiv
ism did not drive judicial decision making during the Nazi era. To the con
trary, German judges (purged of Jewish and Social Democratic colleagues)
accommodated their legal reasoning to Nazism, whether servilely, eagerly,
or fervently. They sympathized with its ideology, approved its political di
rection, and exercised their judicial discretion accordingly. As a practical
matter, they supported the Nazi regime.10 Thus, a historical mistake such
as Radbruch's helped pollinate a postwar German fascination with natural
Alfred Sollner zum 60. Geburtstag, ed. Gerhard Kobler, Meinhard Heinze, Jan Schnapp, and
Alfred Sollner (Giessen: Briihler Verlag, 1990), 331-57, 336-37; Paulson, "Fuller,
Radbruch," 320; Paulson, "Radbruch on Unjust Laws," 497-98; and Christoph
M. Scheuren-Brandes, Der Weg von Nationalsozialistischen Rechtslehren zur
Radbruchschen Formel: Untersuchungen zur Geschichte der Idee vom "Unrichtigen
Recht" (Paderborn: Ferdinand Schoningh, 2006), 24-27.
9. Radbruch, "Die Erneuerung des Rechts," 2; see also Radbruch, "Fiinf Minuten
Rechtsphilosophie," 328; Radbruch, "Gesetz und Recht," 96, 99; Gustav Radbruch,
"Privatissimum der Rechtspflege" (1947), in Gustav Radbruch, Gesamtausgabe:
Rechtsphilosophie, Band 14, ed. Arthur Kaufmann (Heidelberg: C. F. Miiller Juristischer
Verlag, 2002), 150-53, 152; Gustav Radbruch, Rechtsphilosophie, 5th ed. (Stuttgart:
Koehler, 1956), 106; and Radbruch, "Vorschule," 226.
10. Peter C. Caldwell, "Legal Positivism and Weimar Democracy," American Journal of
Jurisprudence 39 (1994): 273-301, 277; Horst Dreier, "Die Radbruchsche Formel Erkenntnis
oder Bekenntnis?" in Staatsrecht in Theorie und Praxis: Festschrift Robert
Walter zum 60. Geburtstag, ed. Heinz Mayer (Vienna: Manz, 1991), 117-135, 120-27;
Langner, Der Gedanke des Naturrechts, 59-64; 72-79; Mertens, "Nazism," 282-86, 293;
Miiller, Hitler's Justice; Ulfrid Neumann, "Naturrecht und Politik zwischen 1900 und
1945: Naturrecht, Rechtspositivismus und Politik bei Gustav Radbruch," in Naturrecht
und Politik, ed. Karl Graf Ballestrem (Berlin: Duncker & Humblot, 1993), 69-85, 72;
Walter Ott and Franziska Buob, "Did Legal Positivism Render German Jurists
Defenceless during the Third Reich?" Social & Legal Studies 2 (1993): 91-104, 98-102;
Paulson, "Fuller, Radbruch," 315, 323-24, 331-33; Robert D. Rachlin, "Roland Freisler
and the Volksgerichtshof: The Court as an Instrument of Terror," in Steinweis and
Rachlin, The Law in Nazi Germany, 63-87, 69-71; Wolf Rosenbaum, Naturrecht und pos
itives Recht: Rechtssoziologische Untersuchungen zum Einfluss der Naturrechtslehre auf die
Rechtspraxis in Deutschland seit Beginn des 19. Jahrhunderts (Neuweid: Luchterhand,
1972), 131-32, 146-51; Bernd Riithers, Die unbegrenzte Auslegung: Zum Wandel der
Privatrechtsordnung im Nationalsozialismus (Tubingen: Mohr, 1968); Bernd Riithers,
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Accommodating Nazi Tyranny 653
law thinking, which served the purposes of judges who had once
furthered Nazi discrimination, terror, and murder.
Radbruch's historical mistake invites a historical inquiry. Wha
scholars of his postwar jurisprudence about judicial accountability d
and what have they neglected? They have focused on doctrinal q
about the relative merits of theories of natural law versus legal pos
but they have ignored historical questions about the origins of Radb
postwar jurisprudence in the Nazi era itself. In regard to doctrinal qu
scholars have debated whether Radbruch abandoned a pre-Nazi po
for a post-Nazi natural law theory. The more compelling answer is t
shifted emphasis. Before the Nazi era, he was a positivist, albeit one
ally alert to nuance and contradictions. He developed a tripartite
Judges, according to the 1932 edition of his magnum opus on legal
ophy (Rechtsphilosophie), must apply laws with due consideratio
three legal concepts of certainty, purpose, and justice, with certainty
pose prevailing over justice. After the war, Radbruch recalibrated th
He gave new, and, on occasion, decisive, weight to justice.11
Despite extensive debate on these doctrinal issues, few postwar sch
have noticed the historical dilemma. How could this jurist—who bef
Nazi era was one of Germany's leading legal philosophers and du
remained in Germany and was able to observe events close up—
wound up reconstruing the role of justice by so badly miscon
Nazi legal history? How could he have erred so badly in arguin
Nazi legal practice reflected the errors of legal positivism prevai
natural law? Admiring Radbruch's intelligence, morality, and s
scholars have struggled with his jurisprudence before and after
Entartetes Recht: Rechtslehren und Kronjuristen im Dritten Reich (Munich: C
1988); and Walther, "Hat der juristische Positivismus," 333-39, 341-44.
11. Bix, "Radbruch's Formula," 47^18; Dreier, "Die Radbruchsche Formel," 12
Haldemann, "Gustav Radbruch vs. Hans Kelsen: A Debate on Nazi Law," Rati
(2005): 162-78, 164-65, 167; Wintried Hassemer, "Einfuhrung," in Gustav R
Gesamtausgabe, Vol. 3: Rechtsphilosophie III, ed. Winfried Hassemer (Heide
Miiller, 1990), 1-16; Arthur Kaufmann, "Die Naturrechtsrenaissance d
Nachkriegsjahre - und was daraus geworden ist," in Die Bedeutung der
Festschrift fur Sten Gagner zum 70. Geburtstag, ed. Michael Stolleis, zusam
Monika Frommel, Joachim Ruckert, and Sten Gagner (Munich: C. H. Beck, 19
32, 118-19; Ulfrid Neumann, "Naturrecht und Politik," 77; Paulson, "Fuller, R
315-23, 339^0; Stanley L. Paulson, "On the Background and Significance of
Radbruch's Post-War Papers," Oxford Journal of Legal Studies 26 (2006): 17-4
39; Paulson, "Radbruch on Unjust Laws"; Scheuren-Brandes, Der Weg von
Nationalsozialistischen Rechtslehren, 22; and Ian Ward, Law, Philosophy and National
Socialism: Heidegger, Schmitt and Radbruch in Context (Bern, New York: P. Lang,
1992), 184-85.
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654 Law and History Review, August 2016
era, and the significance of its changes, but they have not wondered what
caused a historical mistake embedded in his postwar jurisprudence. The
have not asked whether that mistake could serve as a wedge to open an in
quiry into how Radbruch changed his legal thinking. They have sprung too
nimbly from before to after the Nazi era, losing sight of the effect of th
intervening Nazi years themselves.
The omission is not surprising if one takes the measure of Radbruch
prominence—reaching far enough to garner respect, but falling short
generating a critical scholarly biography.12 But even a thumbnail sketc
of his life in the Nazi era should arouse curiosity. Although he w
among the first non-Jewish German academics to lose his job, strippe
of his professorship in Heidelberg in May 1933 because he was a Soci
Democrat; although he withdrew into his private life, but remained in
Germany throughout the Nazi era, except for a year abroad at Oxford
1935-36; although he wrote scholarly works, not only on law but als
on literary topics; and although he hardly compromised his integrity,
could not have lived encased in a shell.13 In his post-Nazi re-evaluation
of his pre-Nazi thinking, did he grapple with his Nazi era political stance?
How did his immediate circumstances during the Nazi era affect his po
ical thinking?
These last two questions shift attention from Radbruch's jurisprudence
to his political thinking, even if one source of his political thinking remai
his jurisprudence. To measure his postwar reconsideration of natural law in
terms of politics rather than jurisprudence, the relevant earlier writing is no
the 1932 edition of his Rechtsphilosophie, which almost all commentators
use, but his lecture in Lyon, France, published in 1934 under the tit
"Relativism in Legal Philosophy."14 In that article, Radbruch made a
12. See Michael Gottschalk, "Gustav Radbruchs Heidelberger Jahre 1926-1949" (Diss.
University of Kiel, 1982); Arthur Kaufmann, Gustav Radbruch: Rechtsdenker, Philosop
Sozialdemokrat (Munich: Piper, 1987); Hans-Peter Schneider, "Gustav Radbruch (18
1949): Rechtsphilosoph zwischen Wissenschaft und Politik," in Streitbare Juristen, ed
Kritische Justiz (Baden-Baden: Nomos, 1988), 295-306; and Wolf, "Einleitung."
13. See Gottschalk, "Gustav Radbruchs," 73-74; Wilfried Kuper, "Gustav Radbruch a
Heidelberger Rechtslehrer," in Heidelberger Strafrechtslehrer im 19. und 20
Jahrhundert, ed. Wilfried Kuper (Heidelberg: V. Decker & Muller, 1986): 225-241, 245
Paulson, "Fuller, Radbruch," 346; Paulson, "On the Background," 24-25; Gusta
Radbruch, Der innere Weg: Aufriss meines Lebens (Stuttgart: K. F. Koehler, 1951), 185
86; and Wolf, "Einleitung," 56-57, 61-63, 65.
14. Gustav Radbruch, "Der Relativismus in der Rechtsphilosophie" (1934), in
Gesamtausgabe: Rechtsphilosophie, Band 3, Arthur Kaufmann, ed. (Heidelberg: C.
Muller Juristischer Verlag, .1990): 17-22; see generally Bauer, "Das 'gesetzlich
Unrecht,'" 302-3; Hassemer, "Einfuhrung," 11-12.
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Accommodating Nazi Tyranny 655
impassioned plea for liberal democracy. Answering critics who
relativists as lacking character and conviction,15 Radbruch denied,
one hand, that a natural law existed that consisted of "a clear, reco
and provable juristic truth,"16 but insisted, on the other hand, th
ism reconciles mutual respect with moral commitment.17 One b
tied relativism to a series of other ideals: positivism, liberalism
of law (Rechtsstaat), the separation of powers, equality, socialis
racy, and tolerance for all opinions (except the intolerance th
destroy democracy18). He ended on a note of scholarly delight.
from skeptical foundations and developing his argument logic
by step, he had wound up justifying the substantive demands o
natural law: the ideals of the French Revolution.19 More than
else that he would write in the next decade, Radbruch used juri
in this article to serve a political position. He made a legal argu
advanced a political goal that did not rely on natural law.
What happened? What pushed Radbruch's jurisprudence and
thinking—his political jurisprudence—toward natural law?
II. History and Jurisprudence: The Political Origins of Ra
Post-War Revival of Natural Law
The biographical data indicate that Radbruch's emotional experience of
the Nazi era influenced him—and inspired his renewed interest in natural
law—in three ways. Although all three are important, the third will merit
the most detailed exploration.
First, as the German law professor Manfred Walther has perceptively
suggested, Radbruch misinterpreted Nazi legal history in a process of self
criticism. In developing his postwar position, Radbruch was criticizing his
own pre-Nazi era views as excessively positivistic, and he then wrongly
imputed such legal positivism more broadly to Nazi judges.20 His misinter
pretation more likely arose from self-criticism than from any contempora
neous observation. During the Nazi era itself, Radbruch did not write about
judicial proceedings, either by attending them or studying them.21 Thus,
15. Radbruch, "Der Relativismus," 17.
16. Ibid.
17. Ibid., 17-18.
18. Ibid., 21.
19. Ibid., 21-22.
20. Walther, "Hat der juristische Positivismus," 339-41.
21. See Gustav Radbruch, Briefe II (1919-1949), revised by Giinter Spendel, in
Gesamtausgabe, Band 18, Arthur Kaufmann, ed. (Heidelberg: C. F. Miiller Juristischer
Verlag, 1995): 104-240.
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656 Law and History Review, August 2016
his own guilt feelings may have led him astray about the role of positivism
in the Nazi legal system.
In a second transformation during the Nazi years, Radbruch became more
religious.22 Although from 1937 through 1939 he wrote friends that he lived
increasingly for his two children's sake,23 their untimely deaths—his
23-year-old daughter died in a ski accident in 1939 and his 23-year-old
son fell on the Eastern Front in 1942—intensified his religiosity.24
Perhaps he also became more religious because, by the early 1940s, he ex
perienced more and more impairments from Parkinson's disease.25 When the
war ended, he hoped for a new Christian socialism and lent his hand to for
mulating a program for an imagined Christian Socialist Union 26 Although
he soon turned away from such a political party, his new religiosity attuned
him to natural law thinking. He had come to believe that human beings were
inherently religious and that those in the West were naturally Christian,27 and
he repeatedly referred to the contribution of religious thinking to jurispru
dence.28 A bitter lesson of the Nazi years, Radbruch wrote in one essay,
was "[h]ow weak justice is that lacks religious consecration."29 He juxta
posed religion, which he favored, to power, which he feared.30 Thus,
22. Gottschalk, "Gustav Radbruchs," 116-23; Radbruch, Der innere Weg, 188, 192-93;
Scheuren-Brandes, Der Weg von Nationalsozialistischen Rechtslehren, 27-29; Wolf,
"Einleitung," 62-67; see generally Richard Hauser, "Die verborgene Lebenslinie: Gustav
Radbruch und die Religion," in A. Kaufmann, Geddchtnisschrift, 50-59; Ward, Law,
Philosophy and National Socialism, 188-89; and Erik Wolf, "Revolution or Evolution in
Gustav Radbruch's Legal Philosophy," Natural Law Forum 3 (1958): 1-23, 21-22.
23. Letter of February 24, 1937, to Walter and Bertel Gotz, in Radbruch, Briefe 1I\ 138;
Letter of April 15, 1938, to Hermann Stolterfoht, in ibid., 148; and Letter of January 24,
1939, to Martin Drath, in ibid., 152.
24. Radbruch, Der innere Weg, 189, 191; see also Gottschalk, "Gustav Radbruchs," 113—
16, 121; A. Kaufmann, Gustav Radbruch; 141—45; and Wolf, "Einleitung," 64—65.
25. Radbruch, Briefe II, 170, 208-11; see also Gustav Radbruch, Lebensbeschreibung, in
A. Kaufmann, Geddchtnisschrift: 21-25, 24; and A. Kaufmann, Gustav Radbruch.
26. See Gustav Radbruch, "Neue Parteien - Neuer Geist" (December 1, 1945) in
Gesamtausgabe: Staat und Veifassung, Band 14, revised by Hans-Peter Schneider and
Arthur Kaufmann, eds. (Heidelberg: C. F. Muller Juristischer Verlag, 2002): 68-70; see
also Hans De With, ed., Gustav Radbruch: Reichsminister der Justiz - Gedanken und
Dokumente zur Rechtspolitik Gustav Radbruchs aus Anlass der hundersten Wiederkehr
seines Geburtstages (Cologne: Bundesanzeiger Verlages, 1978): 54-55.
27. See Gottschalk, "Gustav Radbruchs," 120-23.
28. For example, Radbruch, "Die Erneuerung des Rechts," 6-7, 9; Radbruch,
"Gesetzliches Unrecht," 353; Radbruch, "Gesetz und Recht," 105-6; Gustav Radbruch,
"Gerechtigkeit und Gnade" (1949), in Radbruch, Rechtsphilosophie, 329-35.
29. Radbruch, "Die Erneuerung des Rechts," 9.
30. Gustav Radbruch, "Des Reichsjustizministeriums Ruhm und Ende zum Niimberger
Juristen-Prozess," in Siiddeutsche Juristenzeitung (1948), reprinted in Hans de With, ed.,
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Accommodating Nazi Tyranny 657
Radbruch may have revised his attitude toward natural law as a result of his
newly awakened religious beliefs as much as from philosophical
considerations.
A third character trait—to which this article pays the most attention—
flags a problem in Radbruch's postwar vision of the relationship between
Nazism and natural law. He preferred scholarship to politics. That very
preference had a political dimension, as well as political implications.
What stands out before the Nazi era is Radbruch's incorporation of pol
itics into the arc of his scholarly career. Despite his intellectual tempera
ment, he did not confine himself to academic pursuits. His passion for
social justice drove him also to act politically. He trained as a jurist at
the turn of the century, produced two major works of jurisprudence before
World War I, expressed his growing social consciousness by joining the
Social Democratic Party at war's end, served two stints as Justice
Minister between 1921 and 1923, and then returned to what he loved
most: a university professorship.31
What stands out during the Nazi era is Radbruch's withdrawal from pol
itics for the sake of his scholarly career. When the Nazi regime removed
him from the university in May 1933, he took refuge in scholarship. The
day after his dismissal he picked up work on his biography of the nine
teenth century German jurist Paul Johann Anselm von Feuerbach. He con
tinued to write and publish for the next 12 years.32 According to the handy
but perhaps too facile phrase, he became an "inner emigrant."
The notion of inner emigration is metaphorical. Thus, metaphor might
help shed light on the strengths and weaknesses that commonly character
ize an inner emigrant. That person is the wrapped gem, whose thoughts
retain a glow that outsiders miss. But that person is also the blindfolded
hostage, whose thinking may dim from outside constraints. As popular
discussion of the famous "Stockholm Syndrome" indicates, a person's
Gustav Radbruch, 121-31, 129; Radbruch, "Die Erneuerung," 9-10; and Radbruch, "Neue
Parteien - Neuer Geist," 337.
31. Gottschalk, "Gustav Radbruchs," 21-22; Paulson, "On the Background," 20-24;
Radbruch, "Lebensbeschreibung," in A. Kauftnann, Gedachtnisschriff. 23; Theo
Rasehorn, Justizkritik in der Weimarer Republik: Das Beispiel der Zeitschrift 'Die Justiz'
(Frankfurt am Main: Campus, 1985), 47-49; Schneider, "Gustav Radbruch," 295-96,
304; Klaus-Peter Schroeder, Eine Universitat fiir Juristen und von Juristen: Die
Heidelberger Juristische Fakultat im 19. und 20. Jahrhundert (Tubingen; Mohr Siebeck,
2010), 439-41; Wolf, "Revolution," 12; see also Letter of August 24, 1948, to Walter
Spiess, in Radbruch, Briefe II: 286-87.
32. Gottschalk, "Gustav Radbruchs," 77; A. Kaufmann, Gustav Radbruch, 133; see also
Schroeder, Eine Universitat, 446; and Wolf, "Einleitung," 59.
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658 Law and History Review, August 2016
relationship with an oppressor, or with oppression, can be unexpected and
complex. For Radbruch, the inquiry should not be to judge him on a spe
trum from courage to cowardice but to look at his method of coping and t
relate that coping to the development of his thought. In a later sympathet
portrayal of Franz Schlegelberger (Nazi Germany's acting justice minist
in 1941^2), Radbruch described a process that applied to himself:
"gradual spiritual numbing that, through Hitler's wily tactics, infecte
large parts of the German people."33 In Radbruch's case, numbing aro
from a characteristic love for scholarship, which impaired his ability to cr
tique political developments.
During the Nazi regime, Radbruch—feeling isolated, lonely and adrift—
envisioned his continuing intellectual endeavors as at least preserving pure
scholarly values. In a letter of January 31, 1938, he confided to the art his
torian August Grisebach that his immersion in scholarship should not cre
ate "the image of an internal idyll," because he "always remains painfully
aware that that is all only escape and ersatz, escape from the present, ersat
for the unrecoverable." However, his "devotion to small things and the dis
tant future" filled him with a sense of mission: "to show those who follow
us that even in this time there were still men who pursued scholarship for
scholarship's sake with a thirst for knowledge."34 Neither in this nor other
letters, however, did Radbruch recognize that he was not only devoting
himself to some sort of detached scholarship. He was also clinging to its
various trappings: institutional authority, traditional institutions and schol
arly traditions—which the Nazi era transformed.
Despite losing his professorship in 1933, Radbruch remained dependent
on institutional authority, largely to maintain both his personal economic
stability and his academic career. He wanted to keep his pension (which
compensated him slightly better than the average active professor at
Heidelberg).35 Still yearning to teach, he sought permission from authori
ties—ultimately in vain—to take positions abroad, in particular one in
Kovno, Lithuania, and another in Zurich, Switzerland. In both instances,
he negotiated earnestly, even desperately, and, perhaps, pathetically.36 In
33. Radbruch, "Des Reichsjustizministeriums Ruhm," 125; see also Letter of January 11,
1948, to Franz und Ulrike Blum, in Radbruch, Briefelh 265; and Letter of January 24, 1948,
to Annette Schiicking, in ibid., 267.
34. Letter of January 31, 1938, to August and Hanna Grisebach, in Radbruch, Briefe II:
145-47; see also Letters of November 29, 1941, to Rudolf Wissell in ibid., 182; of January
3, 1944, to Julius Federer, in ibid., 228; and of March 19, 1944, to Mario Krammer in ibid.,
231-32.
35. Gottschalk, "Gustav Radbruchs," 75-77.
36. Ibid., 80-90, 105-8; see also various letters in Radbruch, Briefe II: 108, 112-13, 129
33, 136-37; and Schroeder, Eine Universitat, 446-47.
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Accommodating Nazi Tyranny 659
late November 1933, he begged officials at the Foreign Ministry to empa
thize: "I have been thrust into an unbearable state of agonizing uncertainty.
I ask you to consider that this matter concerns my very life, in particular the
one-time possibility of giving meaning again to my life, destroyed by my
separation from the teaching profession."37
After he lost all hope of landing another position, Radbruch resigned
himself to "living in the past with fewer and fewer friends."38 But he re
mained dependent on traditional institutions, especially the university, as il
lustrated by his continued cultivation of scholarly contacts. As early as his
dismissal, he had helped choose his own replacement, Karl Engisch (a Nazi
Party member). Afterwards Radbruch corresponded with Engisch as well as
with Carl August Emge (also a Party member and both vice-president of the
Nazi-created German Academy of Law and editor of the journal Archiv fiir
Rechts- und Sozialphilosophie [Archive for Legal and Social Philosophy]).
He was willing to make use of his contacts. In response to Emge's inquiry
in November 1940 about Radbruch's publication opportunities within
Germany, Radbruch wrote that he would appreciate a review of his book
Elegantiae Juris Criminalis, published in Basel in 1938.39
Radbruch also remained devoted to scholarly traditions. He congratulat
ed contemporaries on their promotions and achievements. In a letter to
Reinhard Buchwald in April 1944, for example, he wrote: "The title of pro
fessor is today still the most beautiful, still always based on quality. ...
You now have a fixed place in the academic hierarchy, which is always
an advantage in such a guild-oriented profession."40 But the failure of oth
ers to recognize Radbruch's scholarship was vexing. In June 1942, when a
young scholar, Thomas Wiirtenberger omitted Radbruch's book on
37. Letter of November 27, 1933, to the Foreign Ministry, in Radbruch, Briefe II: 108-9.
38. Letter of July 20, 1937, to August Grisebach, in Radbruch, Briefe II: 141.
39. Letter of November 3, 1940, to Carl August Emge, in Radbruch, Briefe II: 166—67,
450; see also Dennis LeRoy Anderson, The Academy for German Law, 1933-1944
(New York: Garland, 1987), 123-24, 370, 373-74, 380-81, 386, 389, 391-94, 420, 435
36, 440, 454, 462, 473-75, 481-83, 485-86, 497, 505, 547; Stefan K. Pinter, "Zwischen
Anhangerschaft und Kritik: Der Rechtsphilosoph Carl August Emge im
Nationalsozialismus," (Diss., Freie Universitat Berlin, 1994): 85-87, 90, 104, 110; Steven
P. Remy, The Heidelberg Myth: The Nazification and Denazification of a German
University (Cambridge, MA: Harvard University Press, 2002), 63; Schroeder, Eine
Universitat, 445^16, 537-41; Christian Tilitzki, "Der Rechtsphilosoph Carl August Emge:
Vom Schiiler Hermann Cohens zum Stellvertreter Hans Frank," Archiv fur Recht und
Sozialphilosophie 89 (2003): 459-96; see generally Carl August Emge, "Bekenntnis zu
Gustav Radbruch," in Kaufmann, Gedachtnisschrift, 44^19; and Karl Engisch, "Gustav
Radbruch als Rechtsphilosoph," in Kaufmann, Gedachtnisschrift, 60-68.
40. Letter of April 1944, to Reinhard Buchwald, in Radbruch, Briefe II: 234; see also
Letter of January 30, 1944, to Eduard Kohlrausch, in ibid., 230.
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660 Law and History Review', August 2016
Feuerbach from an article discussing biographies of famous jurists,
Radbruch wrote him an indignant protest: "Perhaps you cannot imagine
what it means for a scholar of my age and in my circumstances when a
younger researcher ... does not pay attention to and shoves aside his
own favorite work. I ... expect your prompt answer."41
These dependencies—on institutional authority, traditional institutions,
and scholarly traditions—constrained Radbruch's thinking, contributed to
a spiritual numbing, and eroded political awareness. Exhausted, resigned,
and neutralized, he lost touch with politics in imagining his role in the
legal system. He dreamed of opening a legal practice with his son. In a let
ter in March 1941, Radbruch tried to reassure his son not to be intimidated
by his father's superiority "since, just as much as you, I have to work my
self into the new law and new spirit."42
In adjusting to living under the Nazi regime, Radbruch sank into schol
arship as a way to pass the time and contemplate the past rather than to
confront the present. He clung to the values of a scholarly guild, to the im
portance of respect for distinguished colleagues, and to the need for their
recognition. In making the small concessions that maintaining this type
of scholarship entailed, he avoided thinking about politics—or about sub
version or resistance.
III. The "Radbruchian Gap": Radbruch's Accommodation to Unjust
Rule
This biographical, historical, and political inquiry illuminates Radbruch's
reorientation from positive to natural law. In Radbruch's adjustment to
the Nazi regime—pursuing scholarship, deferring to traditional institutions
(i.e., the university and state bureaucracy), and shunning politics (rein
forced by his self-criticism and growing religiosity)—lurks the little
noticed problem in his postwar vision, as epitomized in his article,
"Statutory Injustice and Suprastatutory Law." It suffered not only a histor
ical misinterpretation, but also an accompanying jurisprudential limitation.
His postwar jurisprudence implied a theory of coping with, even accommo
dating, unjust rule.
Radbruch's postwar accommodation to unjust rule becomes clear from a
distinction that he drew and a gap that he left. The distinction was between
securing justice in establishing Germany's future, on the one hand, and
41. Letter of June 16, 1942, to Thomas Wiirtenberger, in Radbruch, Briefe II: 195; see
also Letter of June 21, 1942, to Thomas Wiirtenberger, in ibid., 197.
42. Letter of March 11, 1941, to Anselm Radbruch, in Radbruch, Briefe II: 173; see also
Letter of April 3, 1942, to Gunter Spendel, in ibid., 193.
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Accommodating Nazi Tyranny 661
ensuring security while also dealing with its Nazi past, on the other
passage, Radbruch argued that much National Socialist law attac
critical demand of justice—that equals be treated equally—and, th
lacked the essential character of law itself. Such National Socialist law con
cerned "not some unjust laws but no law at all."43 He gave specific exam
ples of such non-law, namely provisions merging the Nazi party with the
state, laws that denied human rights by treating some people as subhuman,
and penal sanctions that lacked any proportionality, serving solely to instill
terror, often with the death penalty, regardless of a crime's severity.44 By
overcoming positivism, Germans could arm themselves against the return
of a fundamentally unjust state.45
Then Radbruch pivoted. What he had just written about justice "matters
for the future." He immediately added: "In response to the statutory injus
tice of those earlier twelve years, we must try to effectuate the demands of
justice with as little sacrifice as possible to legal security."46 For the sake of
preserving legal security in the present and future, he frowned on holding
judges accountable: "Not every judge should be allowed to invalidate laws
on his own initiative, but rather this task should remain reserved to a higher
court or the legislative process."47
In drawing this distinction, between the imperative to build future justice
and the limits in redressing past injustice, Radbruch left his gap: a neglect
ed "Radbruchian gap" complementing the famous "Radbruchian formula."
He provided no answer to the question "What should not only civil ser
vants, such as judges, but also other citizens, let alone victims, have
done when living under a tyrannical regime?" His pre-Nazi jurisprudence
provided an entree for addressing this question. Worrying that the conser
vative, or reactionary, judges in the Weimar Republic were balking at ap
plying recently democratically enacted laws, he insisted that judges must
apply the laws, even those that they thought were unjust. But he added
that substantive notions of justice must guide legislators and citizens 48
43. Radbruch, "Gesetzliches Unrecht," 354; see generally Mertens, "Nazism," 288-89.
44. Radbruch, "Gesetzliches Unrecht," 354; see also Radbruch, "Gesetz und Recht," 99.
45. Radbruch, "Gesetzliches Unrecht," 354—55.
46. Ibid., 355.
47. Ibid.
48. Ulfrid Neumann, "Naturrecht und Positivismus im Denken Gustav Radbruchs:
Kontinuitaten und Diskontinuitaten," in "Vom Rechte, das mit uns geboren ist": Aktuelle
Probleme des Naturrechts, ed. Wilfred Harle und Bernhard Vogel (Freiburg im Breisgau:
Herder, 2007): 11-32; Paulson, "Fuller, Radbruch," 345—46; Walther, "Hat der juristische
Positivismus," 329; see also Rosenbaum, Naturrecht und positives Recht, 91-93; Kurt
Sontheimer, Antidemokratisches Denken in der Weimarer Republik: Die politischen Ideen
des deutschen Nationalismus zwischen 1918 und 1933 (Munich: Deutscher Taschenbuch
Verlag, 1978), 77.
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662 Law and History Review, August 2016
In his post-Nazi jurisprudence, however, he failed to ask how substantive
notions of justice should have guided the conduct of citizens during Nazi
rule. He inched no closer to an answer than a lone aside, approving of a law
in the American occupation zone that barred punishing perpetrators of po
litical crimes against the Nazi regime.49 Nor did he provide a satisfactory
answer in a questionable passage elsewhere—which he never substantiat
ed, explained, or developed—that the only "spiritual powers" that held
their own against and resisted the Nazi regime were the churches.50 The
passage seems to reflect Radbruch's religious turn. Taken as a whole, his
approach offered comfort from an "inner emigrant;" no theory for the
resister.51
The gap in Radbruch's theory, that is, the failure to provide guidance for
resisting tyranny, had a troubling implication. Without a theory of resis
tance, excuses for accomplices to Nazi murder flow more freely. The im
plication in Radbruch's theory was that postwar Germany should not
hold judges accountable for unjust decisions during the Nazi era, such as
those that resulted in wrongful executions. As the journalist Jorg
Friedrich has suggested, Radbruch's formula invited Nazi era judges to
argue that they fell into the elusive category of implementing unjust
laws but not intolerably unjust ones.52 In fact, Radbruch directly formulat
ed two defenses for judges suspected of perverting justice.
First, Radbruch implied that most Nazi era judges must have lacked the
necessary criminal intent because of their legal positivism. The implication
appeared in his rhetorical question: "But could judges, who were so de
formed by the prevailing positivism that they knew nothing besides statu
tory law, have intentionally broken the law by applying statutory laws?"53
In another article, Radbruch made the same point even more directly, stat
ing that it is "precisely because of his positivistic legal training that the
judge is not to be held personally responsible for the injustice of a sentence
based on an unjust statute."54 This first defense simply repeats Radbruch's
underlying error that Nazi era judges were positivists. In a rejoinder to
49. Ibid.; see also Radbruch, "Gesetz und Recht," 97; see generally Mertens, "Nazism,"
290.
50. Radbruch, "Neue Parteien - Neuer Geist," 337.
51. See generally Bauer, "Das 'gesetzliche Unrecht' des Nationalsozialismus," in A.
Kaufmann, Gedachtnisschrift: 304-5.
52. See Jorg Friedrich, Freispruch fur die Nazi-Justiz: Die Urteile gegen NS-Richter seit
1948: Eine Dokumentation (Reinbek bei Hamburg: Rowohlt, 1983), 56.
53. Radbruch, "Gesetzliches Unrecht," 356.
54. Radbruch, "Die Erneuerung des Rechts," 2, as translated in Paulson, "Fuller,
Radbruch," 327; see also Radbruch, "Gesetz und Recht," 98; see generally Friedrich,
Freispruch, 57-58; Mertens, "Nazism," 291-92; and Letter of April 18, 1948, to Hans
Anschutz, in Radbruch, Briefe II: 276.
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Accommodating Nazi Tyranny 663
Radbruch, Fritz Bauer—a Jewish Social Democrat and victim of Nazi op
pression—essentially said as much (immediately before his own death in
1968): "One is rather inclined to think that precisely judges must have
had, and also did have, a consciousness of injustice, especially since during
the Weimar Republic they often enough provided proof of twisting unpop
ular laws into their opposite."55
Radbruch's second defense for Nazi era judges who perverted justice
was that, even if they had the requisite intent, they could still invoke the
defense of necessity. Any other decision would have risked their lives.56
This second defense rested on a false assumption. Nazi era judges who
failed to toe the line might have risked disapproval, foregone career oppor
tunities, and suffered demotions. They might have faced forced retirement
and ostracism into the cramped quarters of the inner emigrant. They might
have felt anxious. But only two judges during the Nazi era were executed,
and then for resistance, not professional conduct.57 More to the present
point is a problem that Radbruch never saw: even if judges rendered deci
sions in fear for their lives, they would have created no more room for ma
neuver by invoking natural law.
Thus, Radbruch's reluctance to hold Nazi era judges accountable reflects
his failure to provide guidance to resisting tyranny. Perhaps the failure is
not surprising. In his own conduct during the Nazi era, he never actively
opposed the regime. At most, he published legal views abroad at odds
with Nazi legal doctrine,58 expressed quiet dissatisfaction to friends,59
and may have slipped into a work an occasional remark that an alert reader
could have construed as subversive,60 or as an expression of frustration.
The end result was that Radbruch's approach was out of joint, striving
for future justice while restraining attempts to redress past injustice.
Although condemning the worst in Nazi era law, Radbruch provided a de
fense of Nazi era judges rather than a theory of anti-Nazi resistance—or
any resistance for that matter.
55. Bauer, "Das 'gesetzliche Unrecht' des Nationalsozialismus," in A. Kaufmann,
Gedachtnisschrift, 305.
56. Radbruch, "Gesetzliches Unrecht," 356.
57. Miiller, Hitler's Justice, 192-93.
58. Carl August Emge, "Bekenntnis zu Gustav Radbruch," in A. Kaufmann,
Gedachtnisschrift, 44-49, 46; Hassemer, "Einfuhrung," 12-13; and Radbruch,
"Lebensbeschreibung," in A. Kaufmann, Gedachtnisschrift, 24.
59. Helga Einsele, "Erinnerungen an den Lehrer Gustav Radbruch," in A. Kaufmann,
Gedachtnisschrift, 37-43, 41-42.
60. For example, Scheuren-Brandes, Der Weg von Nationalsozialistischen Rechtslehren,
28 fh. 60.
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664 Law and History Review, August 2016
IV. The "Radbruchian Gap": Radbruch's Failure to Provide a Theory
for Anti-Nazi Resistance
Radbruch may have left his gap, his failure to grapple with the challenges
of an anti-Nazi resistance, because his approach to natural law hardly
helped formulate appropriate contemporaneous responses to unjust rule.
His postwar vision of the relationship between Nazism and natural law
was prescriptive rather than retrospective, offered a solution for future
risks rather than past dilemmas, and implied an approach for nipping tyr
anny in the bud rather than uprooting it when it was already implanted. If
Radbruch had expanded his vision to encompass a retrospective proposal
for anti-Nazi resistance, if he had argued that Nazi era judges should
have used natural law to undermine the regime, the argument would
have made little historical sense. Natural law could not have blocked, hin
dered, confounded, frustrated, or even touched the regime in light of at
least three factors: 1) the conformity of German judges, 2) the Nazi era ju
dicial structure, and 3) any realistic political strategy.
First, during the Nazi years, the judiciary as an institution almost immedi
ately displayed its impulse towards conformity. It capitulated to the demands
of the new regime, and German judges continued to defer to the regime's ge
neral expectations. As a group, German judges had a long tradition of submit
ting to nondemocratic authority, indeed, of supporting it, a characteristic that
Nazi power brokers recognized and exploited. Those power brokers effectively
manipulated the judiciary. Authorities in the judiciary not only dismissed judg
es or forced Jewish members to retire but transferred, demoted, disciplined,
suspended, and pushed out judges. The bases for these actions were Nazi
party pressure, political reliability, and loyalty to the regime. The problem
of German judges was obedience, not to statutory law but to dictatorial rule.61
Second, regular judges lost influence as the regime restructured the judi
ciary. The regime created, controlled, and moved cases, including many
political ones, into new tribunals, such as special courts and the People's
Courts. Both types of courts encouraged judges to rule harshly by razing
traditional procedural norms. The People's Courts included not only lay
judges but also many more Nazis than the regular courts.62
61. See Lothar Gruchmann, Justiz im Dritten Reich, 1933-1940: Anpassung und
Unterwerfung in der Aera Guertner (Munich: Oldenbourg, 2001), 124—74, 189-203, 221^10,
270-81, 288-99, 322-24, 931-1112; William Frederick Meinecke, Jr., "Conflicting Loyalties:
The Supreme Court in Weimar and Nazi Germany, 1918-1945," (PhD diss., University of
Maryland at College Park, 1998), 174-77,276-78; and Mutter, Hitler's Justice, 36-41,129-37.
62. See Ernst Fraenkel, Der Urdoppelstaat (1938) (hereafter as UDS), in Fraenkel,
Gesammelte Schriften, 6 vols, (hereafter GS), ed. Alexander von Briinneck, Hubertus
Buchstein, and Gerhard Gohler (Baden-Baden: Nomos Verlagsgesellschaft, 1999-2011),
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Accommodating Nazi Tyranny 665
Third, as to political strategy, the German judiciary lost any subversive
potential once it yielded to Nazi demands within the first 2 months or so of
the new regime. Other institutions, such as the army, police, civil service,
and provincial governments—which followed their own roads toward ac
commodation—probably had more effective tools at their disposal. But a
lone judge presiding over an individual case could present no systematic
challenge to the regime by an isolated, random and ad hoc failure to
apply a law because he perceived a gross injustice.
In short, German judges in general would hardly consider invoking hu
manitarian or moral principles against entrenched authority, Nazi judges in
particular would not do so in the tribunals that exerted the most political
leverage, and any individual judge wielded little actual power by deciding
an individual case based on religious or Enlightenment notions of justice.
The Nazi regime had little to fear from judges invoking natural law.
V. The Nazi Euthanasia Program: One Judge's Contemporaneous
Protests and its Historical Lessons about the Utility of Natural and
Positive Law
Repulsed by Nazi inhumanity, Radbruch roundly condemned Nazi eutha
nasia and its T4 program for murdering patients.63 Not surprisingly, schol
arship on the theme burgeoned after Radbruch's death in 1949. Scouring
the evidence, historians have found a single instance of a judge daring
to use his position to subvert Nazi rule. He was Lothar Kreyssig, a bottom
rung judge in Brandenburg, who was responsible for the guardianship of
patients in local mental institutions and who in 1940 challenged the T4
program. In previous accounts, historians have mentioned Kreyssig for
2: 321-22; Gruchmann, Justiz, 946-71; Meinecke, "Conflicting Loyalties," 149-52; Muller,
Hitler's Justice, 51-52, 140-73; Franz Neumann, Behemoth: The Structure and Practice of
National Socialism (New York: Harper and Row, 1966), 455-56; Rachlin, "Roland
Freisler," 71-73; see generally Bernhard Blanke, "Der deutsche Faschismus als
Doppelstaat," in Der Unrechtsstaat, Recht und Justiz im Nationalsozialismus, ed
Redaktion Kritische Justiz (Baden-Baden: Europaische Verlagsanstalt, 1979), 59-81, 71
72; and Ledford, "Judging German Judges," 169.
63. Gustav Radbruch, "Anmerkung," on the Decision of the Oberlandesgericht Frankfurt/
Main of August 12, 1947, in Gustav Radbruch, Gesamtausgabe: Strafrecht II, Band 8,
Arthur Kaufmann, ed. (Heidelberg: C. F. Muller Juristischer Verlag, 1998): 347-51, 347
48; Radbruch, "Die Erneuerung des Rechts," 2; Gustav Radbruch, "Erwiderung," (zu
Erwiderung zu Gesetz und Recht) (1947), in Gustav Radbruch, Gesamtausgabe:
Rechtsphilosophie, Band 3, Arthur Kaufmann, ed. (Heidelberg: C. F. Muller Juristischer
Verlag, 1990): 104-6, 105; Radbruch, "Gesetz und Recht," 98; Radbruch,
"Privatissimum," 150-53; and Radbruch, "Vorschule," 226.
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666 Law and History Review, August 2016
his rare and courageous anti-Nazi defiance. But his story also casts light on
the issue of whether judges could effectively use natural law to challenge
the Nazi regime. In tangling with officials, Kreyssig relied on natural law.
But he also relied on positive law. What role did each take? While sharing
Radbruch's view that the regime's use of euthanasia violated natural law,
Kreyssig posed a threat to the implementation of the T4 program only in
his use of positive law.
Kreyssig's acts in 1940 make sense only against the general background
of the split among German Protestants after the Nazis came to power.
As part of the Nazification of religious life, in 1933 an ultranationalistic and
racist group known as "German Christians" took control of the Evangelical
Church, which included most German Protestants. Rejecting this Nazified
Christianity, a group of pastors issued the famous "Barmen Theological
Declaration of Faith" in May 1934 and formed the Confessing Church.
Led by Pastor Martin Niemoller, the Confessing Church consisted of, in
the description of the historian Richard Evans, nationalists whose "religion
came first," and whose "piety ... veered increasingly towards biblical fun
damentalism." The members, themselves divided between radicals and
conservatives, largely focused on maintaining Church independence rather
than subverting Nazi rule. The wider split within the Evangelical Church
never broke into a full-fledged battle. Many influential Nazi officials recog
nized the limits in the Church's Nazification, and many members of the
Confessing Church avoided anything like resistance in light of both their
religious convictions and nationalism.64
Kreyssig was a conscientious but unexceptional judge, conservatively
and nationalistically disposed, who joined the Confessing Church in
1934. From then on (if not somewhat earlier), he gave allegiance to church
over state—actively participating in his church, continuously needling Nazi
authorities, and defying pressures to conform. For attacking Nazi church
policy, he faced an attempt in 1935-36 to dismiss him, which failed. For
joining criticism in 1938 of Nazi measures against Martin Niemoller and
other ministers of the Confessing Church, he faced a criminal investigation.
For leading a crowd in 1939 that blocked a minister of the Nazi-backed
German Christians from conducting religious services and that instead
gave the pulpit to the suspended minister of the Confessing Church, he
faced another criminal investigation as well as judicial disciplinary pro
ceedings. In 1940, the criminal investigations were dropped (because of
64. Richard J. Evans, The Third Reich in Power: How the Nazis Won Over the Hearts and
Minds of a Nation (New York: Penguin Press, 2005), 223-30; 225-26 (quotations); see also
Matthew D. Hockenos, "The Church Struggle and the Confessional Church: An Introduction
to Bonhoeffer's Context," Studies in Christian-Jewish Relations 2 (2007): 1-20.
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Accommodating Nazi Tyranny 667
Hitler's general amnesty of September 1939), but the disciplinary proceed
ings remained pending.65
In the early summer of 1940, Kreyssig realized from legal documents
crossing his desk (perhaps reinforced by information from the
Confessing Church and popular rumors) that authorities were transferring
mentally handicapped patients under his ward and murdering them.66 On
July 8, 1940—the very day that one of the criminal investigations against
him was dropped—he sent a letter to Justice Minister Franz Giirtner pro
testing the project based on both its lawlessness and immorality. The
chief judge of Berlin's Court of Appeals demanded that Kreyssig withdraw
the letter. He refused. He wrote that for 2 months, his wards were being
killed "without the guarantee of an orderly judicial proceeding and without
a statutory basis." He grounded his objections in the Christian belief in
God and also in the program's arbitrariness and injustice. He regretted
the lack of procedural protections, such as official notice of the proposed
action, an expert justification for it, a right to be heard, a judgement, and
an appeal. In language scorning one Nazi buzz word after another, he con
cluded by rejecting the foundations of Nazi legal thinking:
Law is whatever serves the people. In the name of this frightful doctrine, still
unchallenged by all Germany's guardians of the law, whole areas of commu
nity life are exempted from the law, for example, concentration camps
completely and now also sanatoriums completely Civil law says nothing
about whether the guardian judge's approval is necessary if a mentally ill per
son under his guardianship or trusteeship, and thus under his judicial protec
tion, is supposed to be delivered from life to death without a law and legal
decision. Nonetheless I believe that the ... guardian judge ... doubtlessly
has the judicial duty to intervene for the sake of justice. That is what I
want to do. ... But beforehand it is my duty to seek clarification and advice
from my civil superiors. That is what I request.67
65. Friedrich Karl Kaul, Die Psychiatrie im Sti-udel der "Euthanasie": Ein Bericht iiber
die erste industriemassig durchgefiihrte Mordaktion des Naziregimes (Cologne, Frankfurt
am Main: Europaische Verlagsanstalt, 1979), 138; Helmut Kramer, "Lothar Kreyssig
(1898-1986): Richter und Christ im Widerstand," in Justiz, Streitbare Juristen, 342-353,
343^47; and Lothar Gruchmann, "Ein unbequemer Amtsrichter im Dritten Reich: Aus
den Personalakten des Dr. Lothar Kreyssig," Vierteljahrshefte fur Zeitgeschichte 32
(1984): 463-88, 464-70, 483, 485-88.
66. Kaul, Die Psychiatrie, 138-39; and Konrad Weiss, Lothar Kreyssig: Prophet der
Versdhnung (Gerlingen: Bleicher Verlag, 1998), 160-61, 447-48.
67. From the files of the Oberkonsistorial-Prasidenten von Magdeburg, as quoted in
Gruchmann, Justiz, 505-06; in Gruchmann, "Ein unbequemer Amtsrichter," 470; and in
Weiss, Lothar Kreyssig, 450-51; see also Gruchmann, "Ein unbequemer Amtsrichter,"
486-87; Kaul, Die Psychiatrie, 139; and Weiss, Lothar Kreyssig, 161-62, 447-51.
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668 Law and History Review, August 2016
Two weeks later, on July 24, 1940, Giirtner attached Kreyssig's protest,
among other documents, to a memorandum to Hans Heinrich Lammer
Chief of the Reich Chancellery, as part of a futile effort to convinc
Hitler to issue a law authorizing and regulating the killings.68 Within the
next several weeks, Roland Freisler, State Secretary in the Justic
Ministry, twice called in Kreyssig to show him a draft law and seems t
have provided some details about the T4 euthanasia program. Kreyssi
did not budge. Instead he took two further steps. First, he requested
formally and in person that the prosecutor's office in Potsdam press
murder charges against Reichsleiter Philipp Bouhler, Chief of th
Fuhrer's Chancellery, who was responsible for the T4 euthanasia program.
Contrary to their promise, the prosecutors never got back to Kreyssi
Second, on August 20, 1940, he advised the director and assembled do
tors at the sanatorium in Brandenburg-Gorden that the killings lacked
legal basis (claiming that they arose from a misunderstanding of a remark
by the Fiihrer), and that from now on he would forbid transferring patient
under his judicial guardianship to other institutions. He followed up a week
later with an order to seven institutions within his jurisdiction to handle p
tients only "according to existing laws" and not to transfer any without h
prior authorization.69
On November 13, 1940, Giirtner himself called in Kreyssig. Giirtner firs
tried to convince Kreyssig to concede that the guardian judge's authoriz
tion for transferring patients was not statutorily required. Giirtner then to
him that the killings were legal because they were based on Hitler's order,
showed Kreyssig a photocopy that the Justice Ministry had recently
ceived of a short enabling letter signed by Hitler on September 1, 193
(the day that World War II began), and instructed Kreyssig to revoke h
order to the institutions. Kreyssig responded that he would need to se
the original and, furthermore, that even unobjectionable positivistic legis
lation could not render injustice just. Giirtner retorted that if Kreyssi
could not acknowledge the Fuhrer's will as the source and foundation
law, then he could not remain a judge. He must retire. He did. At th
end of November 1940, he wrote to the Ministry requesting retiremen
because, as a matter of conscience, he could not withdraw his order. Th
68. Gruchmann, Justiz, 507-8; Weiss, Lothar Kreyssig, 167; see also Radbruch, "D
Reichsjustizministeriums Ruhm," 122.
69. Henry Friedlander, The Origins of Nazi Genocide: From Euthanasia to the Fin
Solution (Chapel Hill: University of North Carolina Press, 1995), 121; Gruchmann, "Em
unbequemer Amtsrichter," 470-71, 484; Gruchmann, Justiz, 511-12 (quotation); Kau
Die Psychiatrie, 140—42; Kramer, "Lothar Kreyssig," 349-50; and Weiss, Loth
Kreyssig, 163-64, 167.
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Accommodating Nazi Tyranny 669
Ministry accepted the retirement, dropped the disciplinary proceedings, and
paid his full pension.70
The temptation is to present the Kreyssig story as a set piece in moral
courage. But that approach risks overlooking its specifically legal signifi
cance. To protect patients under his guardianship, that is, to thwart their
transfer and execution, Kreyssig made three legal points. First, Kreyssig
used a notion of natural law, asserting that no law promulgated by political
authorities could violate fundamental principles of justice. Second, he ob
jected to the Nazi legal theory that the fount of all law was Hitler's word.
Kreyssig made these first two points boldly, audaciously, and even reck
lessly. But they made no difference for euthanasia's potential victims.
What made a difference was Kreyssig's third legal point, his reliance on
positive law. In fashioning a legal argument, he relied on positive law in
denying that the transfer of patients had any basis in existing statutes
and in describing the benefits of procedural protections. In justifying
legal action, he relied on positive law by invoking the authority of his po
sition as judicial guardian of his wards and by issuing orders on the author
ity of his office to prohibit transfers. Freisler and Gurtner—who exploited
Kreyssig's protest in their own efforts to press the Reich Chancellery for a
law regulating the T4 euthanasia program71—recognized that the danger
that Kreyssig posed lay in his argument based on positive law. They met
him on that plain. Freisler tested whether a draft law would meet
Kreyssig's concern about a breach in the law. Gurtner tried to convince
him to concede that the law did not require a guardian judge to authorize
the transfer of patients (probably reflecting a worry that other judges might
adopt Kreyssig's legal interpretation, even though, so far, Kreyssig was the
only one of approximately 1,400 guardian judges who had done so72).
Gurtner also presented him with Hitler's letter to show written authoriza
tion for the T4 euthanasia program. When Kreyssig demurred as a matter
of positive law, denied Nazi legal theory, and invoked natural law, Gurtner
ended the discussion and asserted his superior power. With that, Kreyssig
lost any potential power he might have had to help euthanasia victims.
In mining Nazi history for tales of inspiration, Kreyssig serves well. To
save the lives of his wards, he acted with unshakeable religious faith, un
questionable courage, and stubborn resolve. The trip wire was his unshake
able religious faith. That faith is essential for understanding Kreyssig the
70. Gruchmann, "Ein unbequemer Amtsrichter," 471-73 484; Gruchmann, Justiz, 512;
Kaul, Die Psychiatrie, 142—43; Kramer, "Lothar Kreyssig," 350-51; and Weiss, Lothar
Kreyssig, 170-76, 179 fn. 23.
71. Kramer, "Lothar Kreyssig," 351-52; and Weiss, Lothar Kreyssig, 167.
72. See Kaul, Die Psychiatrie, 139; and Weiss, Lothar Kreyssig, 162.
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670 Law and History Review, August 2016
man. He needed to express religious beliefs, act by his standards of moral
ity, and try to save lives, and he probably conceived of these efforts as an
inseparable whole. But self-expression is not necessarily effective politics.
If measured by the goal of saving the lives of his wards, Kreyssig made a
strategic mistake. He debated Nazi legal theory with jurists supporting the
regime and told them that natural law must prevail. Doing so expressed his
sincere beliefs, but interfered with achieving his goal to save lives. In his
need to not only act on his religious beliefs but to also proclaim them,
illustrated in his professional and legal skirmishes from 1933 through
1940, he taunted authorities—inviting his own dismissal, arrest, and intern
ment.73 He took a similar approach in challenging the T4 euthanasia pr
gram. He could have incurred less personal risk and obstructed the local T4
program longer (even if only slightly longer) by confining his arguments to
statutory law.
In short, Kreyssig's power resided in his position as a judge, which h
could exploit to save some lives and ruffle Nazi policy. He probably exe
cised his power effectively through the incidents of the office, navigation
of the judicial hierarchy, and statutory argument, but he made the strategic
mistake of overreaching. When he realized that Giirtner had backed hi
into a corner, Kreyssig retired in good conscience—but at that momen
it was a conscience that had lost any judicial leverage over official act
or policy. The lesson for the history of jurisprudence is that the swor
that a judge could wield against state crime, and which the state had t
parry, was positive law.74 The lesson eluded Gustav Radbruch.
VI. The Nazi Euthanasia Program: Radbruch's Historical
Misinterpretation
Why did the lesson elude Radbruch? The beginning of an answer—but
only the beginning of one—emerges from his knowledge about the Nazi
T4 euthanasia program. He thought that he knew enough to develop
three themes on the matter: a moral condemnation, a historical conclusion,
and a jurisprudential generalization about natural and positive law.
Although his moral condemnation is straightforward, he drew a historical
conclusion from insufficient information. In fact, he got the history
wrong. Details uncovered in later scholarship show the opposite of what
73. See Gruchmann, "Ein unbequemer Amtsrichter," 474-75, 486-87; and Kramer,
"Lothar Kreyssig," 351.
74. See generally Rosenbaum, Naturrecht und positives Recht 147; and Detlev F. Vagts,
"International Law in the Third Reich," The American Journal of International Law 84
(1990): 661-704, 671.
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Accommodating Nazi Tyranny 671
he asserted. Whatever other grounds Radbruch had for his jurisprud
generalization, it cannot rest on his historical account of the T4 pro
In September 1947, Radbruch opened a newspaper article, "Adm
on the Administration of Justice," with dramatic flare: "Juridical po
sits in the dock. It is the contribution of German jurisprudence to t
lective guilt of the German people." Radbruch argued that positiv
impotent to counter unjust decrees, such as Hitler's enabling l
September 1, 1939, authorizing the T4 program. The protests of pos
according to Radbruch, were fruitless, as exemplified by Justice Mi
Giirtner's letter of July 24, 1940, to Chief of the Reich Chan
Lammers, protesting the secret killing of mentally ill people w
law, and further exemplified by a letter in March 1941 by Giirtner
sor, Franz Schlegelberger, expressing concern about the difficu
embarrassments caused by relying on a secret decree.75 In anoth
2 months later (a comment on a postwar judicial decision f
December 1947), Radbruch continued to portray Giirtner and
Schlegelberger sympathetically but made somewhat of an about-face, cred
iting their respective letters with successfully pressuring Hitler to order an
end to euthanasia in August 1942.76
Radbruch inferred too much from too little, offering history upside
down. Both Giirtner and Schlegelberger facilitated Nazi euthanasia. As
the historians Henry Friedlander and Eli Nathans have shown, Giirtner
knew of euthanasia for months before writing his letter of July 24, 1940,
and, once receiving a copy of Hitler's enabling letter on August 27,
1940, insisted that all officials, such as Judge Kreyssig, comply.
Schlegelberger, on taking over in late January 1941, redoubled efforts to
protect the T4 program. In his letter in March 1941, he complained
about problems with the program's secrecy, not with the program itself.
Then he called a conference for late April of top judges and prosecutors
to warn against heeding legal objections to euthanasia and against contra
vening the Fuhrer's will. Finally, the letters from Giirtner and
Schlegelberger had nothing to do with Hitler's order in August 1942,
which was limited to suspending gassings in domestic hospitals.
Euthanasia continued by other means, with more people murdered under
its rubric after the order than before.77 Thus, far from using law to stop
75. Radbruch, "Privatissimum," 151-52.
76. Radbruch, "Anmerkung," 347.
77. Friedlander, Origins of Nazi Genocide, 61, 85, 110-12, 116-23, 136, 148—49, 151;
Eli Nathans, "Legal Order as Motive and Mask: Franz Schlegelberger and the Nazi
Administration of Justice," in Law and History Review 18 (2000): 1-38, 22-24; Eli
Nathans, Franz Schlegelberger (Baden-Baden: Nomos, 1990): 58-59; see also Miiller,
Hitler's Justice, 127-28.
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672 Law and History Review, August 2016
euthanasia, both Giirtner and Schlegelberger promoted it, in part on th
theory, which Schlegelberger continued to propound after the war, tha
Hitler's secret enabling letter had the force of law.78
Radbruch was a legal philosopher, not a historian. He used his historical
account of Nazi euthanasia to illustrate, not to generate, his jurisprudence
about positive law and natural law. Still, there are hints that Radbruch
skewed the historical details that he did know to fit his jurisprudence
For example, Radbruch suggested that Giirtner denied the legal authority
of Hitler's enabling letter, even though Radbruch knew that Giirtne
wrote his letter of July 24, 1940, protesting the secret killing of mentally
ill people a month before learning of Hitler's secret enabling letter. For an
other example, Radbruch suggested that Schlegelberger's letter in Marc
1941 questioned the euthanasia program in principle, while it really on
complained about practical difficulties caused by its secrecy. Wou
Radbruch have changed his mind if only he had known more historica
facts?
VII. The Vices in Positive Law: Radbruch's Misconstrual of Positive
Law in a Late Essay on a Nazi Perpetrator
The answer to the question of whether Radbruch would have changed h
mind if he had known more historical facts is, probably, no. A fuller u
derstanding of why Radbruch misinterpreted the interactions between nat
ural and positive law under the Nazi regime emerges from analyzing
another piece, one of his last, the 1948 essay, "The Glory and the En
of the Reich Ministry of Justice: On the Nuremberg Judges' Trial."7
This essay provides a nice balance to the earlier and more famou
"Statutory Injustice and Suprastatutory Law." For illuminating the pro
lems with Radbruch's postwar thinking, this late essay gets closer to issues
raised by the Radbruchian gap by focusing on actions during the Nazi era
itself, and exposes weaknesses in Radbruch's thinking about positive law
Occasioned by the verdict in the war crimes trial in 1947 of sixteen j
rists and lawyers—one of the twelve American military trials held i
Nuremberg after the famous international Nuremberg trial—in this essay
Radbruch addressed three themes. They concerned an idea, an institution,
and a person. The idea was the nature of law, the institution was the
German Reich Justice Ministry, and the person was Franz
Schlegelberger, the Acting Justice Minister for 1 Vz years in 1941—42
78. Nathans, Schlegelberger, 59 fh. 238.
79. Radbruch, "Des Reichsjustizministeriums Ruhm."
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Accommodating Nazi Tyranny 673
(and an acquaintance of Radbruch's).80 Despite the grace of his expos
Radbruch did not so much weave the themes together as get them t
up. In drawing his conclusions, he misinterpreted historical evid
treated to religious faith, and missed the significance of politics
while misconstruing the possibilities of positive law.
In his essay, Radbruch placed his three themes into a grand narrat
the opening paragraph, he idealized, and virtually idolized, the
Ministry—an institution over which he had once presided and
greatly admired. It embodied, in Radbruch's eyes, a sublime legal tr
of technical expertise and detached impartiality.81 Throughout the
Republic, Curt Joel, first as the Ministry's highest ranking civil serv
then as justice minister himself, almost perfectly personified the ins
and its values.82 From 1933 through 1941, Franz Giirtner maintaine
of the Ministry's character based on his own experience, legal abilit
legal sensibilities, even if he did not fight for justice with all his en
and at times accommodated the Nazi regime.83 Schlegelberger f
18 month gap as acting justice minister from late January
August 1942.84 Under his successor, Otto Georg Thierack, just
lapsed as the Ministry sacrificed its independence, ceded critical
bilities to the police, and indulged the wishes of the SS leader H
Himmler.85 With Germany's defeat, the Justice Ministry itself per
sullied with dishonor.86 In conclusion, Radbruch quoted a remar
the decision in the Judges' Trial about those few German judg
still upheld the ideals of judicial independence and who handed d
tice with a certain impartiality and moderation."87 Thus, with an al
ligious sweep, Radbruch described the Justice Ministry's halcyo
decline, and downfall, and then concluded on a redemptive note
Schlegelberger occupied the heart of Radbruch's essay.88 As G
had died in 1941 and Thierack committed suicide in 1946, the
ranking defendant at the Judges' Trial was Schlegelberger. Th
80. See Letter of January 11, 1948, to Franz und Ulrike Blum, in Radbruch, Brief
81. Radbruch, "Des Reichsjustizministeriums Ruhm," 121.
82. Ibid., 121-22; see generally Peter Dieners, "Curt Joel (1865-1945): Administ
Reichsjustiz," in Heinrichs, Franzki, Schmalz, and Stolleis, Deutsche Juristen
Herkunft, 485-94; and Klaus-Detlev Godau-Schiittke, "Curt Joel - 'Graue Emin
Zentralfigur der Weimarer Justiz," Kritische Justiz 25 (1992): 82-93.
83. Radbruch, "Des Reichsjustizministeriums Ruhm," 122; see generally Gruc
Justiz.
84. Radbruch, "Des Reichsjustizministeriums Ruhm," 123.
85. Ibid., 130.
86. Ibid.
87. Ibid., 131.
88. Ibid., 122-30; see generally Nathans, Schlegelberger, 8-9.
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674 Law and History Review, August 2016
delivered a guilty verdict, which Radbruch, as he expressed in both this
essay and private correspondence, thought just.89 But while venerating
Joel and loathing Thierack, Radbruch found Schlegelberger a source of
anguish. He represented the last gasp of a once proud legal tradition
and, as the American court put it, cut a "tragic figure."90 The tragedy, in
Radbruch's view, lay in Schlegelberger joining in evil without curtailing
it.91 Lined up against an array of bureaucratic opponents, most formidably
Himmler himself,92 Schlegelberger struggled to preserve legal process
against arbitrary police action, at least on occasion, but in making ever
larger compromises, he ultimately succumbed to evil.93 Sacrificing his con
victions, conscience, and dignity in vain, Schlegelberger failed to slow the
juggernaut of the police state.94
With a tragic vision of Schlegelberger's personal flaws and the Reich
Justice Ministry's institutional weaknesses, Radbruch concluded that law
itself suffered shortcomings. Only religion, or natural law, could compen
sate. Adopting an intimate voice in direct address to the reader, Radbruch
offered three lessons from Schlegelberger's case. The first two seem almost
commonplace. Do not believe that anybody can participate in evil to pre
vent even worse, and do not believe that people may ignore their individual
consciences for the sake of higher goals. The third lesson is similar to what
Radbruch had written in the preceding postwar years about natural law. Do
not believe that anybody "can answer the ultimate questions of justice and
master the hardest problems of justice with values like objectivity and law
fulness." The idea of justice should not shrivel into "the cultivation of sec
ondary values, like lawfulness and objectivity, an expression of positivism,
which has forgotten the highest of all dictates of justice: to obey God rather
than man."95
The problem with the reasoning in Radbruch's essay is that he elevated
natural law by misconstruing positive law, that he misconstrued positive
law by misunderstanding Schlegelberger's use of law, that he misunder
stood Schlegelberger's use of law from a sense of pity, that he felt a
89. Radbruch, "Des Reichsjustizministeriums Ruhm," 128-29; Letter of January 11,1948, to
Franz und Ulrike Blum, in Radbruch, Briefe //: 264—65; see generally Robert M. W. Kempner,
Ankldger einer Epoche: Lebenserinnerungen (Frankfurt am Main: Ullstein, 1983), 287-88;
Miiller, Hitler's Justice, 270-73; and Nathans, Schlegelberger, 1, 77.
90. Radbruch, "Des Reichsjustizministeriums Ruhm," 124.
91. Ibid., 128-29; see also Nathans, Schlegelberger, 7-10, 80; and Nathans, "Legal
Order," 28.
92. Radbruch "Des Reichsjustizministeriums Ruhm," 123-24.
93. Ibid., 124-25; see also Letter of January 11, 1948, to Franz und Ulrike Blum, in
Radbruch, Briefe II\ 265.
94. Radbruch, "Des Reichsjustizministeriums Ruhm," 128-29.
95. Ibid., 129.
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Accommodating Nazi Tyranny 675
sense of pity from a misplaced tragic vision, and that his misplaced tragic
vision displaced historical inquiry. Aristotle contrasted tragedy with histo
ry, prioritizing tragedy, for its universal lessons, to history, with its narrow
focus on particular events. With like disposition, Radbruch sought a moral
lesson before probing the past. Succumbing to feelings of pity, Radbruch
wrote: "We must believe [Schlegelberger] in what he repeatedly empha
sized: that he remained only to protect against worse, to block more dan
gerous successors, not to leave like-minded colleagues in the lurch, and not
to deprive judges of their last support in his person."96
Why must we believe Schlegelberger? Seeing Schlegelberger as a tragic
figure overcome by circumstances, Radbruch lost sight of alternative his
torical explanations for Schlegelberger's conduct. The tension between
Radbruch's expansive tragic vision and narrow historical imagination is
clear from an oddity in his essay. His interjections about Schlegelberger's
good will jar with his accounts of Schlegelberger's harmful actions.
Radbruch's essay tells two contradictory tales, one of Schlegelberger's
misconduct, the other of his good intent. Radbruch seemed unable to rec
oncile what Schlegelberger did with how any decent jurist should have
reasoned. In part, Radbruch saw a losing battle in defense of law because
he could not explain why legal institutions, such as the Justice Ministry,
and jurists, such as Schlegelberger, would use law to promote Nazi crimes
rather than resist them.
But recent historians have offered just such an explanation. In a nutshell,
Nazi leaders needed legal experts, including in the Justice Ministry, to
establish a legal framework for developing a state based on race, for
excluding outsiders from the new Aryan community, and for implementing
Nazi policies. The legal experts, in turn, adapted to their new role, advanc
ing a vision not of law but of Nazism through law, reconstituting law in the
image of Nazi ideology. They advanced Nazi policies bureaucratically
rather than violently, with regulations, decrees, and commands and, in so
doing, imbued Nazi policies with legitimacy. Like others in the Nazi
state, they also protected their own turf and jockeyed for power. Only in
developing postwar litigation strategies to defend against criminal charges
and to procure pension benefits did they invent the claim that they were
secret opponents trying to stave off the worst of Nazi evils.97
96. Ibid., 124.
97. See generally Hans-Christian Jasch, "Civil Service Lawyers and the Holocaust: The
Case of Wilhelm Stuckart," in Steinweis and Rachlin. The Law in Nazi Germany, 37-61;
Claudia Koonz, The Nazi Conscience (Cambridge, MA: Belknap Press, 2003), 163-89;
Helmut Kramer, "Das Niirnberger Juristenurteil (Fall 3) - Eine Lektion fur die Justiz der
BRD?" in Politik als Verbrechen: 40 Jahre "Niirnberger Prozesse" ed. Martin Hirsch,
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676 Law and History Review, August 2016
In his essay, Radbruch missed the possibilities of using positive law to
resist tyranny because he drew skewed lessons from Schlegelberger's ca
reer and the Justice Ministry's traditions. According to Radbruch's reading,
Schlegelberger failed to restrain Nazi atrocities despite his struggle for the
Justice Ministry's ideals of lawfulness, objectivity, and detached neutrality.
Furthermore, his failure illustrated the flaw in Radbruch's own prior ideals,
which relied too heavily on positive law. But in oversentimentalizing the
Justice Ministry's former virtues and in empathizing with Schlegelberger
the bureaucrat, Radbruch misidentified Schlegelberger's failures. They
hardly arose from a stubborn adherence to positive law. Rather, like
German judges and other civil servants in general, Schlegelberger subordi
nated positivism to authoritarian beliefs and Nazi loyalty. Although
Radbruch mentioned in passing the politicization of the Justice
Ministry,98 he failed to develop the theme. Yet Schlegelberger used law
politically, tendentiously, and instrumentally to promote the regime's bru
tally discriminatory policies, including the T4 euthanasia program of mur
dering the disabled." Once in a while Schlegelberger tried to shift some
power—a sliver here, a sliver there—from SS thugs toward elite jurists.
Schlegelberger staked his postwar defense and his self-esteem on these ep
isodes, but ultimately they involved empowering jurists rather than uphold
ing law. At best, they were side shows. Occasionally skirmishing with
people such as Himmler, Schlegelberger always deferred to Hitler—imme
diately, unabashedly, and obsequiously. Schlegelberger's authoritarianism
and loyalty invariably prevailed.100
Schlegelberger's loyalty to the Nazi regime, not his positivistic ad
herence to law, appears in five historical examples that Radbruch dis
cusses in his essay. These examples, Radbruch asserted, showed that
Schlegelberger had made unfortunate legal compromises in his persistent
efforts to forestall Himmler's encroachments on the judicial system.101
In fact, turf battles aside, they show Schlegelberger's complicity in overall
Nazi policies.
The pattern in Radbruch's first and last examples is the same. A court
sentenced a defendant to prison, Hitler demanded executions, and
Schlegelberger did the necessary. In the first example, an old Jewish
Norman Paech, and Gerhard Stuby (Hamburg: VSA Verlag, 1986), 60-63, 61; Nathans,
"Legal Order," 17; and Walther, "Hat der juristische Positivismus," 352.
98. Radbruch, "Des Reichsjustizministeriums Ruhm," 122.
99. See Friedlander, Origins of Nazi Genocide, 122-23; Muller, Hitler's Justice, 127-28;
Nathans, "Legal Order," 22-24; Nathans, Schlegelberger, 57-59, 84.
100. See Nathans, "Legal Order," 19-26, 33-35, 37; Nathans, Schlegelberger, 41, 55-59,
83-84.
101. Radbruch, "Des Reichsjustizministeriums Ruhm," 125.
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Accommodating Nazi Tyranny 677
man, Markus Lufitglass—Nazi correspondence and Radbruch's essay
chillingly misspell his name as "Luftgas"—was sentenced to 2 Vi years
for hoarding eggs, an irritated Hitler asked for the death sentence, and within
5 days Schlegelberger responded that he had handed Luftglass over "to the
Gestapo for execution." In his concluding sentence on this example,
Radbruch volunteered that "it could no longer be determined whether and
what steps were undertaken [in those 5 days] to save Luftgas [sic]."102
Thus, while all the available evidence showed that Schlegelberger hastened
Luftglass's execution, Radbruch implied the opposite. By substituting a
grammatical construction for evidence, Radbruch suggested that maybe
and perhaps Schlegelberger tried to save Luftglass and that maybe and
perhaps grounds existed for exonerating Schlegelberger.
In the other example, Hitler phoned to protest the 10 year sentence of a
man named Ewald Schlitt, Schlegelberger arranged for an emergency ap
peal, and he then reported back that Schlitt had been sentenced to death
and immediately executed. "Out of utter conviction, my leader,"
Schlegelberger wrote Hitler, "I share your desire for the hardest punish
ment of criminality." Schlegelberger assured Hitler that he was indoctrinat
ing judges to impose harsher sentences and that he would not shrink from
personnel measures to reduce even further the number of objectionably low
sentences. Radbruch, although confounded by such obeisance, still insisted
that Schlegelberger's basic disposition was "indisputably" otherwise in
light of so much testimony that he "intervened without prejudice and not
without courage for victims of racial and political persecution."103 In
102. Ibid., 126; see also Diemut Majer, "Non-Germans" under the Third Reich: The
Nazi Judicial and Administrative System in Germany and Occupied Eastern Europe,
with Special Regard to Occupied Poland, 1939—1945 (Baltimore, London: Johns
Hopkins University Press, 2003), 848 fn. 99; Harry Reicher, "Evading Responsibility for
Crimes against Humanity: Murderous Lawyers at Nuremberg," in Steinweis and Rachlin,
The Law in Nazi Germany, 137—159, 140—41, 145—46, 155 fn. 16, 208—10; and Nathans,
Schlegelberger, 57. With characteristic German thoroughness, the editors of Radbruch's
Collected Works have adorned their reprinting of "The Glory and the End of the Reich
Ministry of Justice" with annotations on the several Nazi officials mentioned in the
essay. As to Mr. Luftglass, including the correct spelling of his name, they write nothing.
See Gustav Radbruch, "Des Reichsjustizministeriums Ruhm und Ende: Zum Niirnberger
Juristenprozess," (1948), in Radbruch, Gesamtausgabe: Strafrecht II, 258-68; 423-26,
especially 263.
103. Radbruch, "Des Reichsjustizministeriums Ruhm," 128; see also Werner Johe, Die
gleichgeschaltete Justiz: Organisation des Rechtswesens und Politisierung der
Rechtssprechung, 1933-1945, dargestellt am Beispiel des Oberlandesgerichtsbezirks
Hamburg (Hamburg: Christians, 1983), 172-74. The editors of Radbruch's Collected
Works, in keeping with their approach to Mr. Luftglass, provide no information on Mr.
Schlitt either, not even his first name. See Radbruch, "Des Reichsjustizministeriums
Ruhm und Ende," in Radbruch, Gesamtausgabe: Strafrecht II, 263; 423-26.
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678 Law and History Review, August 2016
fact, while Schlegelberger always complied with Hitler's demands, and r
peatedly ordered judges to sentence more harshly and impose mor
death sentences,104 he only rarely favored victims of Nazi oppression.105
On behalf of his former Jewish superior Curt Joel, for example
Schlegelberger helped a bit—before dropping the matter.106 If
Schlegelberger ever cared about victims, he did so at no risk to himse
and with no challenge to Nazism's ultimate goals.107
In addition to facilitating individual executions, Schlegelberger helpe
draft repressive laws. Radbruch gave two historical examples. In
December 1941, the Criminal Law Decree for Poles and Jews in incorp
rated territories was issued, which Schlegelberger had helped frame. "The
draft," wrote Schlegelberger, "sets up a draconian special criminal law for
Jews and Poles, which expansively formulates the elements of offens
and everywhere allows the death penalty."108 Radbruch claimed that
Schlegelberger's explanations concealed his inclusion of legal protection
and lighter punishments, most importantly, in placing jurisdiction in the
regular courts rather than with the police, and in rejecting corporal punish
ment. Radbruch understood, however, that the numbers of convictions in
1942 alone presented "a terrifying picture."109 Similarly, but still worse,
in November 1941, Schlegelberger helped draft the "Night and Fog" d
cree, which ordered that resisters in occupied territories face one of tw
outcomes: either conviction in the area's military courts, which wou
probably impose a death sentence, or transport back to Germany for p
ceedings before wartime courts, which would assure their "disappearance."
According to Radbruch, Schlegelberger believed that he was offering "the
unhappy victims of this 'Night and Fog' decree legal process" through spe
cial courts. Radbruch understood, however, that such courts were weak and
ineffective, for they operated in secret and ultimately only long prison se
tences could spare the accused from concentration camps.110
A minimal, and sufficient, interpretation of the historical evidence is that
Schlegelberger, in negotiating these two oppressive laws, aimed to kee
104. Majer, "Non-Germans, " 337, 360, 362-63, 830 fh. 73, 75; 833, fn. 104; 849-50 fn
115, 116, 120, 125; Nathans, "Legal Order," 20-21, 25; and Nathans, Schlegelberger, 57
62, 66, 69-73.
105. For example, Majer, "Non-Germans, " 826-27 fh. 31.
106. Nathans, Schlegelberger, 42-43.
107. See for example, Nathans, Schlegelberger, 45.
108. Radbruch, "Des Reichsjustizministeriums Ruhm," 126.
109. Ibid.; see also Majer, "Non-Germans, " 876 fh. 71; and Nathans, Schlegelberger, 6
62, 65-68.
110. Radbruch, "Des Reichsjustizministeriums Ruhm," 126-27; see also Nathan
Schlegelberger, 70.
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Accommodating Nazi Tyranny 679
the criminal courts in business, that is, to retain some jurisdiction
than to cede everything to Himmler's mushrooming polic
Radbruch detected something more. Although recognizing fun
and irreparable failings in both laws, he problematically sugge
Schlegelberger tried to preserve judicial prerogatives in part to pr
restees. That is to say, Schlegelberger had hoped that reserving so
to the courts may have trickled down to the benefit of Poles, Jew
sisters. Radbruch provided no evidence that Schlegelberger act
bored such hopes or that courts were inclined to grant arres
benefits. In fact, arrestees could only despair before judges w
long been bowing deeply to the Nazi state and were obeying direct
cluding from superiors such as Schlegelberger, for severity.112
Nor could arrestees find comfort in the two laws themselves. Their critical
provisions would have disgusted any self-respecting positivist. Contrary to
positivism's essential tenets, both laws (to name some but not all their
egregious provisions) applied retroactively; defined crimes expansively,
vaguely, and virtually without limit; and encouraged death sentences as
the standard, however disproportionate to the underlying offenses.113 If,
compared with Himmler, Schlegelberger wanted procedures, the reason is
that courts need them to function, not that arrestees could wrap themselves
in such procedures for cover. Furthermore, Himmler's lawlessness provides
no measure for adherence to legal standards. In helping draft these laws,
Schlegelberger acted as a positivist only in the sense that he helped create
rules (and not just followed them). But these laws were rules only in the
sense that they used rule-like language that opened another route to arbitrary
state murder. If Schlegelberger ever cared about victims of Nazi oppression,
here he was thinking of other things.
A fifth historical example disturbed Radbruch the most, namely
Schlegelberger's recommendation that authorities not deport half-Jews to
the East if they submitted to sterilization.114 Radbruch's description includ
ed a telling sentence: "Schlegelberger correctly explained that one could
not have won over the power brokers with arguments of humanity but
had to descend to their level to be able to effectively argue against
111. See generally Lothar Gruchmann, "'Nacht- und Nebel' - Justiz: Die Mitwirkung
deutscher Strafgerichte an der Bekampfimg des Widerstandes in den besetzten
Westeuropaischen Landern, 1942-1944," in Vierteljahrshefte fur Zeitgeschichte 29
(1981): 342-96, 343^14, 348^49; and Majer, "Non-Germans, " 419-21, 876 fn. 70.
112. For example, ibid., 419-21, 876 fn. 70.
113. See Gruchmann, "Nacht und Nebel," 345-47, 354, 364; and Majer,
"Non-Germans," 368-69, 418-26, 853 fn. 16.
114. Radbruch, "Des Reichsjustizministeriums Ruhm," 127; see also Kempner, Ankldger
einer Epoche, 286; and Nathans, Schlegelberger, 70-71.
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680 Law and History Review, August 2016
them."115 Although Radbruch then dismissed Schlegelberger's compro
mise because it preserved little humanity at all, the sentence is worth pars
ing. Radbruch missed a problem with the dichotomy that Schlegelberger
had drawn. The problem was not in the first clause, that is, that Nazi
"power brokers" would not respond to "arguments of humanity," which
is similar to the point we have made. Rather, the problem was in the second
clause, that is, that the alternative was "to descend to their level." Locking
horns with Nazi inhumanity did not necessarily require fighting back like
another moose. Rather, the possibility existed of trying to answer with ar
guments that included a measure of neutrality based on positive law. That
was part of the approach that Judge Kreyssig used in trying to protect his
wards. That was the ideal that Radbruch himself imagined from the earlier
days of the Justice Ministry. Radbruch returned to that notion toward the
end of his essay. He quoted, as mentioned earlier, a reference in the
Judges' Trial decision—which was overly generous and not backed up
by examples but which Radbruch doubtless believed—that there had
been some German judges "who still upheld the ideals of judicial indepen
dence and who handed down justice with a certain impartiality and
moderation."116
In short, Radbruch largely based his criticism of positive law on historical
distortions. His jurisprudential conclusions about the relationship between
natural and positive law drove his historical descriptions, not vice versa.
VIII. A Truncated Positive Law: More on Radbruch Misconstruing
Positive Law in his Late Essay on a Nazi Perpetrator
In discussing the five historical examples, Radbruch neglected a possibility
that he had touched upon in his earlier essay, "Statutory Injustice and
Suprastatutory Law," and that characterizes much positive law and impar
tial decision making. He neglected the notion of equality before the law.
This notion is integral to not only the Anglo-American ideal of the rule
of law but also its German variant, the Rechtsstaat doctrine (more literally
translated as the "state under law" or the "just state").117 As the historian
Eli Nathans has noted, before 1945, Schlegelberger rarely, if ever, pleaded
115. Radbruch, "Des Reichsjustizministeriums Ruhm," 127.
116. Ibid., 131.
117. See Ernst-Wolfgang Bockenforde, "The Origin and Development of the Concept of
the Rechtsstaat," in State, Society and Liberty: Studies in Political Theory and Constitutional
Law (New York/Oxford: Berg, 1991), 47-71, 50, 53-54, 60-61; and Franz Neumann, "The
Concept of Political Freedom," Columbia Law Review 53 (1953): 901-35, 908-12.
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Accommodating Nazi Tyranny 681
for upholding the Rechtsstaat,118 But he typified legally trained civil ser
vants who imagined themselves devotees of at least the authoritarian ver
sion of the Rechtsstaat. Such civil servants prided themselves on
effectuating laws on behalf of the state and on doing so independently, re
gardless of politics.119 The Rechtsstaat doctrine, however, also included a
commitment to neutral laws and fair bureaucracies that treated citizens
equally. With the Nazi regime, the authoritarian impulse behind the
Rechtsstaat doctrine persisted while the notion of equal treatment by fair
bureaucracies under neutral laws fell by the wayside. Schlegelberger ener
getically advanced laws and policies that discriminated against, dehuman
ized, and helped annihilate Poles and Jews.120
The surprise is not that someone with authoritarian inclinations such as
Schlegelberger acquiesced, even welcomed this development—the col
lapse of equal treatment under law121—but rather that a Social Democrat
such as Radbruch ignored that collapse while evaluating Schlegelberger.
Radbruch argued that Schlegelberger at least tried to preserve legal inde
pendence.122 The argument is disquieting, because Schlegelberger's notion
of judicial independence was to protect judges' professional security while
ensuring their submission to Nazi demands.123 Radbruch, however, disre
garded that Schlegelberger used the legal system for discrimination, and
murderous discrimination at that, against Jews, against Poles, and against
dissenters of any kind. Yet that perversion of law lay at the heart of the
Nuremberg Judges' Trial's judgement, which wrote that Schlegelberger
"employed the Ministry of Justice as a means for exterminating the
Jewish and Polish populations, terrorizing the inhabitants of occupied
countries, and wiping out political opposition at home."124 What
Schlegelberger personified was not the dangers inherent in the detached
legal professional, what the work of the Justice Ministry incarnated was
not the defects in objective neutral law, and what fell short as a legal doc
trine was not positivism. What the man, the institution, and the role of legal
doctrine illustrated was the inhumanity in discriminatory, and racist, law.
118. Nathans, "Legal Order," 8, 8 fn. 20, 36.
119. See Mathias Reimann, "Book Review of Eli Nathans, Franz Schlegelberger," The
American Journal of Comparative Law 39 (1991): 459-62, 460, 462.
120. See Majer, "Non-Germans," 336-37; 340-41, 419-23, 830 fn. 73, 75; 833 fn. 104.
121. See Nathans, "Legal Order," 6-18, 33.
122. Radbruch, "Des Reichsjustizministeriums Ruhm," 129-30.
123. Majer, "Non-Germans, " 340-41, 833 fhs, 102—4; Nathans, Schlegelberger, 72-73,
79; and Nathans, "Legal Order," 17-19.
124. Trials of War Criminals before the Nuernberg Military Tribunals under Control
Council Law No. 10, Nuernberg, October 1946 - April 1949, 15 vols. (Washington: U.S.
Government Printing Office, 1949-53), Vol. Ill, Case 3, U.S. v. Alstoetter, et al. ("The
Justice Case") (Washington, 1951), 1086.
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682 Law and History Review, August 2016
They epitomized the perils in sacrificing liberal legal standards to a fanat
ically right-wing politics.
Both Schlegelberger's actions and his contempt for legal equality belie
his self-defense: that, with good intentions, he honorably, even if futilely,
tried using law to fend off the truculent SS state. The question is why
Radbruch expressed such sympathy. Why did Radbruch so vigorously
seek good will in a man who furthered discrimination, state-sponsored
crime, and brutality? The answers both track the three themes in his
essay on the Judges' Trial and recapitulate reasons for the defects in
Radbruch's earlier, more famous essay, "Statutory Injustice and
Suprastatutory Law."
First, just as Radbruch misinterpreted Nazi legal history in a process of
self-criticism,125 he overidentified with Schlegelberger. The decision in the
Judges' Trial described Schlegelberger as "a tragic character" because
"[h]e loved the life of an intellect, the work of the scholar ... but he
sold that intellect and that scholarship to Hitler for a mess of political pot
tage and for the vain hope of personal security."126 That passage must have
stung Radbruch. It must have aroused in him pity, springing from the
dreadful vision that he could have easily suffered a similar fate.
Radbruch had much in common with Schlegelberger. Two decades earlier,
Radbruch, too, had served as justice minister; he also pursued the "life of
an intellect [and] the work of the scholar"; and he knew the difficulties of
striving for personal security, even—or especially—during the Nazi years.
In contemplating Schlegelberger, Radbruch submitted to both of the coun
tervailing tendencies in pity, which pits humility and compassion, on the
one hand, against irrational emotions and the erasure of personal boundar
ies, on the other.127
Second, Radbruch sympathized with Schlegelberger's self-defense
because he desperately wanted to hold on to the values of traditional insti
tutions. In that vein, Radbruch had earlier written of the university profes
sor's "most beautiful" title, a position "always based on quality."128
Similarly, he never lost his affection for the Justice Ministry. He now
looked back fondly on its "sublime artists of justice, exacting engineers
of law, careful word engravers."129 Schlegelberger needed some absolution
because he had emerged out of Radbruch's beloved Justice Ministry.
125. See fh. 20.
126. "The Justice Case," 1087.
127. See generally Ruth Kaplan, "The Problem of Pity in Spenser's 'Ruines of Time' and
'Amoretti,'" Spenser Studies: A Renaissance Poetry Annual XXIX (2014): 263-94, 267-69.
128. See fh. 40.
129. Radbruch, "Des Reichsjustizministeriums Ruhm," 121.
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Accommodating Nazi Tyranny 683
Finally, Radbruch sympathized with Schlegelberger's self-defense
because of his new religiosity and his conflation of that religiosity with ju
risprudence. The result was that Radbruch could more easily bypass legal
issues and instead seek moral answers. One vivid passage implies that he
could only imagine improving jurisprudence with religion. In drawing
lessons from Schlegelberger's tragic mistakes, Radbruch wrote that when
the state becomes a "band of bandits"—in the words of Augustine of
Hippo—"then only the belief in higher values can help, then the hot flames
of justice must burn through all considerations and fears."130 Was
Radbruch not relying on "belief," and religion? Was he not countering
Nazi evil with "justice," and jurisprudence? Could he no longer articulate,
or imagine, that the "hot flames of justice" might not only induce judicial
decisions but also ignite political action? Was he accommodating tyranny
by responding to injustice with religion and jurisprudence instead of ex
ploring the possibilities of political power?
Radbruch's essay, "The Glory and the End of the Reich Ministry of
Justice," never exerted the influence of his more well-known essay,
"Statutory Injustice and Suprastatutory Law." In regard to the later essay's im
mediate precipitant, the Nuremberg Judges' Trial, German jurists succeeded
in limiting distribution of the decision and squelching discussion of its issues,
and the trial quickly receded from sight.131 Radbruch did little to counter these
eventualities. True enough, soon after the Judges' Trial verdict he privately
expressed regret that, as a consequence of scanty press coverage, "the overall
important results of the Nuremberg trials have not penetrated into the popu
lace."132 He failed to grasp, however, the character of his own essay: not
only providing an early apology for Schlegelberger133 but also expressing
what had become, and continued to be, the typical defense of Nazi era ju
rists.134 In probing for something redeeming in a man who had systematically,
methodically, and persistently promoted policies to exterminate human be
ings, Radbruch accepted much of Schlegelberger's defense and recast it
into an argument for extenuating circumstances. He restated the tensions be
tween positive law and natural law as those between statutory guilt and supra
statutory mitigation—with the highest moral values residing in natural law
130. Ibid., 129 (emphasis added).
131. Kramer, "Das Niirnberger Juristenurteil," 62; and Marc von Miquel, Ahnden oder
Amnestieren?: Westdeutsche Justiz und Vergangenheitspolitik in den Sechziger Jahren
(Gottingen: Wallstein, 2004), 24.
132. Letter of January 11, 1948, to Franz und Ulrike Blum, in Radbruch, Briefe II: 264;
Letter of February 6, 1948, to Friends in America and Boris Sapir, in ibid., 270-72; see also
Letter of February 14, 1949, to Erich Ebermayer, in ibid., 296-97.
133. Nathans, Schlegelberger, 8-9.
134. See Miiller, Hitler's Justice, 271.
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684 Law and History Review, August 2016
and, perhaps implicitly, also in suprastatutory mitigation. Radbruch found
tragedy in Schlegelberger because he had undertaken his murderous work
with old school hauteur. In the end, this essay, like "Statutory Injustice and
Suprastatutory Law," fit the needs of former Nazi jurists.
Taken together, Radbruch's essays "Statutory Injustice and Suprastatutory
Law" and "The Glory and the End of the Reich Ministry of Justice" help
complete the arc of Radbruch's career. At war's end, the demand of the
day was rebuilding institutions: the university, the courts, and the Justice
Ministry. Crowning a lifetime devoted to scholarship, Radbruch became
the first rector of the University of Heidelberg's reconstituted law school,
serving from November 1945 through August 1946, and then continuing
to teach through July 1948.135 His position gave him practical influence at
a university, but not over courts. Yet both institutions faced similar crises
of personnel, with universities lacking professors and courts lacking judges.
The occupying powers barred vast numbers from service because of their
Nazi pasts, at least through the spring of 1946.136 To fill that void,
Radbruch proposed not a plan for churning out new professors and new
judges, but an approach for the re-education of former professors and judges.
One by one, they could return to their old jobs by promising to adhere to
new ideals. At the same time, however, they could evade responsibility
for past misdeeds, especially the judges for prior judicial misconduct or
criminal acts from the bench. Radbruch hardly noticed that these judges—
insecure and ambitious, corrupted and self-righteous, vulnerable and aggres
sive—could, and would, mold his ideals in their own image.
Radbruch tried to get not only legal ideals back on their feet but also jurists.
He extended a helping hand to people that he knew: law professors and civil
servants. As for professors, he may have imagined recreating his romanticized
vision of the earlier university, populated by those who had been fired and
hired alike. Hardly having shed his democratic inclinations, he tried to help
those who had earlier fled or lost their positions in the Nazi era.137 But his ac
tions showed an even stronger nationalist bent. He devoted as much, if not
more, energy to those whom Allied de-Nazification left unemployed. For
those fleeting figures of legal history who had taught, written, and advanced
throughout the Nazi era, the evidence may be too scattered to know for sure
whether this one or that one tested the limits for helping others or recoiled
from taking risks, kept a distance from evil or pursued a career no matter
135. Remy, The Heidelberg Myth, 118-20; Schroeder, Eine Universitat, 447-50, 629.
136. See, for example, von Miquel, Ahnden oder Amnestieren? 23-25; and Schroeder,
Eine Universitat, 624, 629.
137. Ibid., 356-57, 456, 461, 599, 603, 648-49; see also Remy, The Heidelberg Myth,
227.
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Accommodating Nazi Tyranny 685
what, acted with dignity or was flush with pro-Nazi enthusiasm. What the ev
idence does show is that Radbruch championed professional acquaintances
even if they had earlier joined the Nazi Party, men such as Carl Emge,
whom the American occupation government held in custody, or Karl
Engisch, Ernst Forsthoff, Hermann Krause and Eugen Wohlhaupter, whom
the Americans ousted from university positions.138
Nazi party membership was also no bar to Radbruch's special pleading
for former civil servants—men with closer access than professors to inflict
ing direct injury and causing death. In congratulating Thomas Dehler on
becoming West Germany's first justice minister, Radbruch put in a good
word for Fritz Hartung, a former criminal law specialist in the Prussian
Justice Ministry who needed a position and could help carry forward the
old tradition of neutral, technical legal experts. Radbruch left out that
Hartung had served on the panel of the German Supreme Court that had
decided cases arising under the Nuremberg laws, interpreting them ever
more expansively and severely.139 Radbruch capped his sympathetic por
trayal of Schlegelberger with a clemency petition for his subordinate,
Wolfgang Mettgenberg, a co-defendant at the Justice Trial convicted for
his role in the "Night and Fog" decree (and probably another acquaintance
of Radbruch's). In one almost prideful private letter, Radbruch wrote that
Mettgenberg erred at trial in arguing that the notorious decree was legally
valid. That defense, Radbruch claimed, reflected the mentality of a rigorous
positivist but was psychologically impossible for an Allied court to accept.
Mettgenberg should have presented the true state of affairs, according to
Radbruch, namely, "that the entire politics of the Reich Ministry of
Justice was aimed at softening the implementation of the decree."140
138. Letters of July 5, 1945, to Lona Emge, in Radbruch, Briefe II: 241, 502; of January
20, 1946, to Carl August Emge, in ibid., 246, 505; of March 24, 1946, to Eugen
Wohlhaupter, in ibid., 247; of August 20, 1946, to Agnes Schwarzchild, in ibid., 249 (re
Engisch); see also Remy, The Heidelberg Myth, 138, 153, 158-59; Schroeder, Eine
Universitat, 491, 537—43, 552-55, 636; Michael Stolleis, "Book Review of Hans
Hattenhauer, hrsg, Rechstwissenschaft im NS-Staat: Der Fall Eugen Wohlhaupter
(Heidelberg, 1987)," in Historische Zeitschrift 247 (1988): 739-741.
139. Letter of September 22, 1949, to Thomas Dehler in Radbruch, Briefe II: 312-14,
545; Meinecke, "Conflicting Loyalties," 192-94; Miiller, Hitler's Justice, 192.
140. Letter of October 4, 1948, to Vally Joel, in Radbruch, Briefe II: 289. Radbruch's lit
erary estate also includes an undated seven-page draft of a purported "Expert Opinion" op
posing the death sentence imposed in April 1948 at another Nuremberg successor trial, the
Einsatzgruppen (Mobile Killing Unit) case, against Eugen Steimle, an SS commanding of
ficer convicted of having murdered at least 500 people. Sympathetically construing the trial
evidence summarized in the written decision, Radbruch essentially argued that the evidence
was insufficient to prove Steimle's guilt. Universitat-Bibliothek Heidelberg, Heid. Hs. 3716:
Nachlass Gustav Lambert Radbruch.
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686 Law and History Review, August 2016
Thus, Radbruch's affections for tainted institutions and their compr
mised members—whether for universities and their professors, the courts
and their judges, or the Justice Ministry and its civil servants—seeped
into the legal positions he developed for public consumption. The iron
in the postwar Radbruch is the discordance between his decency and hi
legal doctrine. Horrified at evil, he indulged professional evildoers, and
in indulging such evildoers, he could not imagine how anyone in the
past might have resisted evil through law; through positive law and leg
institutions.
IX. Conclusion: The Shortcomings of the Postwar Radbruch
Captivated by jurisprudence rather than politics, Radbruch missed the
politics in his own jurisprudence. One problem that may have afflicte
him—or us as historians and lawyers—is an unwarranted assumption
Why assume that a sense of humanity, which Radbruch surely had, mu
be fundamental? A sense of humanity may be secondary to politics.
may obscure, distract from, and diminish political thinking.
After World War II, Radbruch's reputation and good will endowed hi
reflections with gravitas. Contemporaries and later scholars have admired a
revived spirit who, despite years of quiescence and physical debility, ener
getically engaged a dawning era. From that perspective, Radbruch's histor
ical misinterpretation of the Nazi judiciary was incidental; it was no
essential for restoring legitimate government. His neglect of anti-Nazi re
sistance was beside the point; it was irrelevant to his new project. Bu
few have entertained the possibility that the postwar Radbruch was no
only a revived spirit but also a broken man. Yet he was a broken ma
Or he was also a broken man. Or he was, at least, a man who could not
repair the break that Nazism had caused in his life and thought. The
Nazi era broke, if not his ability to think politically, his political acumen.
Perhaps with little choice, certainly confronted with unbearably hard choi
es, he succumbed to state intimidation. He fell silent. In his quest to sustai
himself—through his love of jurisprudence, literature, and scholarship, an
also in his turn toward religion—he lost political vitality. His misinterpre
tation of the Nazi judiciary and neglect of anti-Nazi resistance go hand in
hand because they both reflected an atrophied political imagination.
Radbruch did not realize how badly the Nazi era had damaged his po
litical imagination, sensitivity, and judgment—or his jurisprudence.
Trying to integrate his lifelong compassion, his horror at recent Nazi atro
ities, and his loss at conceiving what anyone in Nazi Germany could ha
done to resist, he sought a reorientation through natural law. But he did n
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Accommodating Nazi Tyranny 687
solve the problem that he had recognized in his pre-Nazi jurisprud
impossibility of knowing the content of natural law, that is, of tr
its high principles into concrete statutes, regulations, and decision
seems to have forgotten the earlier Weimar era warnings
Democratic contemporaries, such as Franz Neumann and Hans
that the indeterminacy in the concept of natural law invites th
abuse its language of morality, universalism, and absolutes and
to call on natural law for advancing their own ideology, most ofte
servative or reactionary one.142
By invoking natural law, Radbruch hardly provided obvious answ
the type of moral dilemmas that the Nazi era generated.
Schlegelberger, for example, had been the respectable, upstan
meaning Justice Minister that Radbruch envisioned, what, by Rad
lights, should Schlegelberger have done? Radbruch impl
Schlegelberger should have tried to use the law to good effec
with compromises—up to a point. At that point, morality dema
he stop. He should have done what Judge Kreyssig did: use la
lives as long as possible and then resign. Or he should have d
Radbruch himself did (even if in part from force of circumst
nothing rather than participate in evil. Radbruch's approach i
idea of comfort. It announces principles for the ages in grapp
the demands of the moment, the peculiar demands of the present
not of past realities or future contingencies. The approach is b
suaging individual conscience than in securing political effectiv
In terms of political effectiveness, even in times of crisis, or espe
times of crisis, natural law is no better than positivism, or m
versa. In his attempts to assess positive law and natural law,
failed to appreciate a trap set by the Nazi regime: its ruthles
could always defeat law, any kind of law, whether positive or natu
The trap snapped shut on Radbruch because he was too much
scholar, preoccupied with his own theory of jurisprudence, his ow
tite scheme, and his own high-wire act of balancing between po
141. Radbruch, Rechtsphilosophie, 108, 178-79; see also Kiihl, "Riickbli
Renaissance," 337; Ward, Law, Philosophy and National Socialism, 188.
142. See Douglas G. Morris, "Write and Resist: Ernst Fraenkel and Franz N
the Role of Natural Law in Fighting Nazi Tyranny," New German Critique 1
197-230.
143. See generally Ernst Fraenkel (trans. Edward A. Shils), The Dual State: A
Contribution to the Theory of Dictatorship (New York: Oxford University Press, 1941);
and Ernst Fraenkel, Der Doppelstaat, 2nd ed., ed. Alexander von Briinneck (Hamburg:
Europaische Verlagsanstalt, 2001).
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688 Law and History Review, August 2016
natural law.144 In the postwar years, during his last days, with his final
burst of energy, he embraced what he knew best, jurisprudence, in a
time that needed what he grasped poorly, politics.
Politically, Radbruch stood out in the war's aftermath among his cohort
of prominent Social Democratic jurists. He exerted far more immediate in
fluence in Germany than others, all in real emigration, such as Hans
Kelsen, who wrote one of the most devastating critiques ever on natural
law; or than Franz Neumann, who struggled with the significance of natu
ral law but in the half-decade after the war looked to the Allies to keep the
German judiciary on a tight leash; or than Ernst Fraenkel, who in the late
1930s already relied on natural law as a justification for anti-Nazi resis
tance and returned to it again in the 1950s as a foundation for Western de
mocracies, but left the subject alone in the late 1940s.145 Rather, the man of
the hour was Gustav Radbruch, the one Social Democrat, who after years
of personal grief, professional demoralization, and political waning wound
up nourishing a conservative consolidation in German jurisprudence.
Radbruch's legacy is of a decent man who did not shape an era but met
the needs of its desperate but powerful elite of former Nazi era jurists.
Perhaps there is the tragedy.
144. See ibid., 129.
145. See Morris, "Write and Resist"; see also, for example, Ernst Fraenkel (trans. E.A.
Shils), The Dual State, Part II; Hans Kelsen, "The Natural-Law Doctrine before the
Tribunal of Science," The Western Political Quarterly 2 (1949): 481-513; Franz
Neumann, "German Democracy 1950," International Conciliation 28 (New York:
Carnegie Endowment for International Peace, 1950), 251—96, 257-58, 263-64, 290; and
Franz Neumann, "Military Government and the Revival of Democracy in Germany,"
Columbia Journal of International Affairs 2 (1948): 3-20, 6-8, 18-19.
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