THOMAS MERTENS

NAZISM, LEGAL POSITIVISM AND RADBRUCH’S THESIS ONSTATUTORY INJUSTICE

ABSTRACT. The small article “Statutory Injustice and Suprastatutory Law” publishedin 1946 by Gustav Radbruch is one of the most important texts in 20th century legalphilosophy. Until recently, its importance was said to stem from its renewal of ‘naturallaw’ and from its ‘formula’, according to which the value of justice should override thatof legal certainty in extreme cases. In this contribution, a close examination will show thatRadbruch’s text is less univocal than often suggested. I argue that Radbruch deals herewith the acute problems of apparent criminal legality during the Nazi-era rather than withproblems of validity. In order to make this clear, I first briefly sketch Radbruch’s personalhistory and the context into which the article fits. Secondly, I analyze the text itself andfocus on how to understand the well-known grudge informer case. Finally, I pay someattention to the renewed topical interest of Radbruch’s formula, owing to the fact that itwas used in the trials against former-GDR soldiers who shot fugitives at the Berlin Wall,and their superiors.

KEY WORDS: grudge informer case, legal positivism, natural law, Nazism, Radbruch,wall shootings case, Weimar republic

INTRODUCTION1

The article published by the then and now famous German legal philos-opher Gustav Radbruch almost immediately after the Second World War:“Statutory Injustice and Suprastatutory Law”,2 is one of the most importanttexts in 20th century legal philosophy. Until recently, the importance ofthe article was said to stem from the fact that it testifies to a fundamentalchange in Radbruch’s views on law. Rather than remaining a legal posi-

1 In writing this paper, I drew on my publication, T. Mertens, “Radbruch and Hart onthe Grudge Informer. A Reconsideration”, Ratio Juris 15/2, 2002.

2 G. Radbruch, “Gesetzliches Unrecht und übergesetzliches Recht”, originally inSüddeutsche Juristenzeitung 1 (1946), 105–108; Reprinted in G. Radbruch, Der Mensch imRecht (Göttingen, 1957), 111–124 (references are to this edition); in G. Radbruch, Rechts-philosophie, 7th ed., Hrsg. E. Wolf (Stuttgart, 1970), 347–357; in G. Radbruch, Gesamtaus-gabe, Hrsg. A. Kaufmann, III (Heidelberg, 1990), 83–93. There is a new, fine Germanedition of the Rechtsphilosophie with editorial footnotes, edited by Stanley L. Paulsonand Ralf Dreier, which includes this famous essay: G. Radbruch, Rechtsphilosophie(Studienausgabe), Müller (Heidelberg, 1999), 211–219.

Law and Critique 14: 277–295, 2003.© 2003 Kluwer Academic Publishers. Printed in the Netherlands.

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tivist, he is said to have converted to the opposite position, namely thatof natural law. According to the post-war Radbruch, the promulgation ofa law is still a necessary condition for law to exist, but it no longer is itssufficient condition at the same time. In order to be valid, the law has tofulfil fundamental moral requirements as formulated in basic human rights.Radbruch gives a specification of this requirement – his ‘inseparability-thesis’, so to speak – in a rather specific formula, which says that inextreme cases the value of justice can have priority over or override thevalue of legal certainty. The so-called Radbruch formula has been influ-ential because of its creating a general return to natural law theory inGermany, as becomes clear in a 1962 collection of essays edited by WernerMaihofer, the future FRG minister of the Interior and President of theEuropean University Institute,3 and in the case law of the German HighCourt and of the German Constitutional Court.4 This return to naturallaw theory and the specific case with which it is connected, the so-calledgrudge informer-case, has provoked a fierce debate between natural lawtheory and legal positivism, in the Anglo-Saxon world as well, with LonFuller and Herbert Hart as the main participants.5

This result, however, seems a bit strange when looking closely atRadbruch’s text. It deals with problems that were acute and pressing atthe time of its publication, namely those that resulted from the apparentlegal criminality or criminal legality during the Nazi-era. This legal realityhad to be faced and cases had to be decided. Radbruch’s formula playsindeed an important role in his ‘solution’ of these cases, but the essay as

3 W. Maihofer, Hrsg., Naturrecht oder Rechtspositivismus, WissenschaftlicheBuchgesellschaft (Darmstadt, 1972). Originally, this collection was published in 1962,with essays published between 1948 and 1960. The collection starts with a Radbruch essay.Significantly, it also contains contributions written by K. Larenz and E. Forsthoff.

4 For example, Entscheidungen des Bundesverfassungsgericht (BVerfGE) 23, 1968,98–113, 106 with regard to the “11. Verordnung zum Reichsbürgergesetz” (1941), inwhich the Court formulates as follows: “1. Nationalsozialistischen ‘Rechts’ vorschriftenkann die Geltung als Recht abgesprochen werden, wenn sie fundamentalen Prinzipiender Gerechtigkeit so evident widersprechen, daß der Richter, der sie anwenden oder ihreRechtsfolgen anerkennen wollte, Unrecht statt Recht sprechen würde”. For an overview,see B. Schumacher, Rezeption und Kritik der Radbruchschen Formel, Diss. (Göttingen,1985), 71–102; R. Alexy, Begriff und Geltung des Rechts (München, 1992), 52–136.

5 H.L.A. Hart, “Positivism and the Separation of Law and Morals”, in Harvard LawReview 71 (1957–58), 593–629; H.L.A. Hart, The Concept of Law, 2nd ed., with a newpostscript, original 1961 (Oxford University Press, 1994). L. Fuller, “Positivism andFidelity to Law – a Reply to Professor Hart”, in Harvard Law Review 71 (1957–58), 630–672 (reprinted in: J. Feinberg and H. Gross, eds., Philosophy of Law, 3rd edition (Belmont,1986), 88–108; L. Fuller, “The Problem of the Grudge Informer”, in L. Fuller, The Moralityof Law (New Haven and London, 1964), 245–253.

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a whole seems motivated by a practical need rather than by theoreticalconcerns. Its primary focus is on the possibilities and difficulties of penallaw when faced with radical political changes and it thus belongs to what iscalled in German, ‘juristische Vergangenheitsbewältigung’, the coming toterms with the past in matters of law. In dealing with these cases, Radbruchindeed refers to legal positivism as the general attitude of those that inter-preted and applied the law during the Nazi-era. He even argues that theNazi regime was successful in using the legal system for its criminalpurposes because of positivism, which holds that no other source of lawexists than statutory, posited law. The title of Radbruch’s article is a directrejection of this mentality, because in the positivist view concepts such as‘statutory injustice’ and ‘suprastatutory law’ appear to be contradictions.Still, Radbruch’s aims seem to be practical ones and, thus, there seems tobe a gap between these practical aims and the article’s theoretical impact.

Drawing on some excellent publications on Radbruch,6 I want to high-light some of the ambiguities in Radbruch’s text. I want to make clearthat the text is much less univocal than it initially appeared to be. In orderto do so, I will first briefly sketch Radbruch’s personal history and thecontext of the article. Secondly, I will analyze the text itself and focus onhow to understand the well-known grudge informer case. Finally, I willpay some attention to the renewed topical interest of Radbruch’s formula,owing to the fact that it was used in the trials against former-GDR soldierswho shot fugitives at the Berlin Wall, and their superiors. Recently, thejuridical discussion on the criminal accountability of these soldiers andtheir superiors came to an end with the decision by the European Court ofHuman Rights, to which these defendants went after all their legal objec-tions had been rejected by German courts. In its decision, the EuropeanCourt held that their convictions did not constitute a violation of article 7of the European Convention on Human Rights.7

6 I greatly benefited from the following essays: M. Walther, “Hat der juristische Positi-vismus die deutschen Juristen im “Dritten Reich” wehrlos gemacht? Zur Analyse undKritik der Radbruch-These”, Recht und Justiz im “Dritten Reich”, R. Dreier, W. Sellert,Hrsg. (Frankfurt am Main, 1989), 323–354; S.L. Paulson, “Lon L. Fuller, Gustav Radbruchand the ‘Positivist’ Theses”, Law and Philosophy 13 (1994), 313–359; S.L. Paulson,“Radbruch on Unjust Laws: Competing Earlier and Later Views”, Oxford Journal of LegalStudies 15 (1995), 489–500.

7 ECHR, 22 March 2001 (Streletz, Kessler and Krenz v. Germany); ECHR, 22 March2001 (K.-H. W. v. Germany). See also H. Lensing and T. Mertens, “Der EuropäischeGerichtshof für Menschenrechte und die “Mauerschützen”. Die “Radbruchsche Formel”oder: Innerer Widerspruch”, Jahrbuch der Juristische Zeitgeschichte (2002).

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ON RADBRUCH AND HIS CONTEXT

In August 1946, at the time when Radbruch wrote the article that madehim famous for defending and renewing natural law, he already was amuch-respected lawyer and law professor. He was born in Lübeck in 1878,went to university in, among other places, Berlin and Heidelberg, and heldhis first Chair from 1914 onwards in Königsberg in East-Prussia (espe-cially known since Immanuel Kant lived and worked there during mostof the 18th century). In that same year he published his legal philosophy,Grundzüge der Rechtsphilosophie, a book that was reprinted many timesand is still used, in its third and final 1932 edition, known as the Rechts-philosophie. After World War I, he was elected into the Reichstag as anMP for the Social Democrats, the SPD. This was a surprise as not manylaw professors were members of the SPD or supported the newly estab-lished Weimar Republic. Even more surprisingly, Radbruch, soon after inthe early twenties, took up twice the position of Secretary of Justice. Inthis capacity he contributed significantly to reforming criminal law in thespirit of penalists, Feuerbach and Von Liszt, whom he admired. In 1926,he returned to the academic world and took up a position at the Universityof Heidelberg. He worked there until the Nazis cast him aside after theirassumption of power in early 1933.8 During the following years, he keptup his moral integrity and did not compromise himself in any way with theregime. After the war, he was quickly restored to office. Unfortunately, hewas unable to hold it for long, as an illness made his retirement necessary.He died in 1949.9

After the war he published a number of short articles.10 Two of thesearticles became rather famous: ‘Five Minutes of Legal Philosophy’11 and‘Statutory Injustice and Suprastatutory Law’. As already mentioned, thislast article deals with the problem of how to evaluate judicially individualswho committed crimes under the veil of Nazi-legality. The way in whichRadbruch would like to have the problem addressed is shown in the title.

8 This was possible because of the notorious ‘Gesetz zur Wiederherstellung desBerufsbeamtentums’ of April 7, 1933.

9 For a comprehensive biography I refer to: G. Radbruch, “Einleitung des Herausge-bers: Gustav Radbruchs Leben und Werk”, Rechtsphilosophie, 7th ed., supra n. 2, at 17–77;E. Wolf, “Gustav Radbruch”, Grosse Rechtsdenker der Deutschen Geistesgeschichte(Tübingen, 1963), 713–765.

10 Contrary to what is often thought, Radbruch has been very active in the yearsfollowing the war. He published some 70 contributions and articles. He also publishedduring his 12-year absence from university. See S.L. Paulson, Radbruch on Unjust Laws:Competing Earlier and Later Views, supra n. 6, at 489.

11 English version in J. Feinberg and H. Gross, eds., supra n. 5, at 109–110.

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In his opinion, such cases are forms of statutory injustice, i.e., forms ofcriminal (unjust) behavior that, erroneously, became covered by statutes. InRadbruch’s opinion, therefore, a difference between statute and law exists.This possibility was overlooked by legal positivism, as it identified statuteand law with one another. Radbruch rejects positivism12 and maintains thatstatutes in themselves do not necessarily constitute law. Positive law needsto be tested by using a suprastatutory criterion, which Radbruch furtherspecifies by the concepts of ‘natural law’, ‘divine law’, or ‘reasonable law’.He admits that the details concerning this criterion are questionable, butthat its ‘hard core’ can be found in the declarations of human and civilrights.13

Now this element of Radbruch’s text alone asks for some comment. Itis said that this element testifies to a fundamental change in Radbruch’sconception of law. His acceptance of the possibility of suprastatutory lawwould imply a radical break with his own pre-war, positivistic views.As a result of being confronted with certain legal cases and, more gene-rally, with Hitler-Germany, Radbruch realized that legal positivism leadsto morally unacceptable conclusions. Moreover not only did he break withlegal positivism, but he also held positivism responsible for the fact thatso many involved in administrating the legal process in Germany adaptedso easily to the new order, and therefore to statutory injustice. Radbruchdescribes this as follows: ‘by means of two maxims, National Socialismbrought about obedience: among soldiers with the principle of “orderis order” and among lawyers with the principle of “law is law”.’ Andthis mentality (according to which statutes fully constitute law and there-fore need no further moral examination) was, for Radbruch, predominantalready decades before the Nazi take-over.14 So the lack or absence ofany suprastatutory criterion contributed importantly to the aberrations ofNazism.

This twofold assertion that Radbruch changed his position and thatpositivism is responsible for Nazism has often been adopted, until recently,without much questioning.15 With regard to the second element, however,

12 Like Radbruch himself, I make no distinction between positivism and legal positivism.13 G. Radbruch, “Fünf Minuten Rechtsphilosophie”, Rechtsphilosophie, supra n. 2, at

336. Note that this phrasing dates back from before the Universal Declaration.14 “. . ., seit vor etwa hundert Jahren die letzten Naturrechtlehrer unter den Juristen

gestorben sind, . . .”, G. Radbruch, “Fünf Minuten Rechtsphilosophie”, supra n. 13, at 335.15 The assertion is twofold: on the one hand, it presupposes that Radbruch changed his

position after the war compared to his pre-war position, e.g.: H.L.A. Hart, supra n. 5, at616. On the other hand, there is the assertion that positivism is responsible for the ease withwhich statutory injustice was accepted, e.g.: L. Fuller, “Positivism and Fidelity to Law – aReply to Professor Hart”, Philosophy of Law, supra n. 5, at 101.

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it is questionable that positivism caused legal practice to fail so terribly.This may be illustrated by looking at the way things went for some positi-vists and their adversaries after 1933. I indicated earlier that the ‘positivist’Radbruch was, legally, forced to step back. Let us also look at the verydifferent consequences these political events had for the positivist HansKelsen and for Carl Schmitt, who fiercely opposed positivism.16 LikeRadbruch, Kelsen was strongly influenced by neo-Kantianism. The futureauthor of the ‘Reine Rechtslehre’ lost his Chair immediately when theNazi’s took over power, while Schmitt, who was even appointed by Kelsenin Cologne, did nothing to prevent it.17 One cannot hold that things wentcontinuously well for anti-positivist Schmitt during the twelve years of theNazi regime, but he cannot take credit (although he claimed this creditafter the war!) for the fact that his ambitions of becoming the leadingNazi-lawyer did not come true.18 However, if we leave personal affairsand careers aside, and more generally investigate Radbruch’s thesis as anempirical statement on the legal profession during the Weimar years, itturns out to be questionable. Positivism was not the ruling doctrine inGermany’s legal world.19 Of course, things depend here on definitions.But it seems not unreasonable to define ‘positivism’ as the conviction thatone has to obey the law, simply because it is posited, and that examiningstatutes by reference to unwritten legal principles is not allowed. Some callthis ‘statutory positivism’. Now, many sources indicate that large parts of

16 Schmitt characterizes positivist thinking as a form of “normativism”, which localizeslaw in a general norm. By contrast, he first defends “decisionism”, which only deemslaw present in concrete decisions regarding individual cases. Later on, Schmitt turns toconceptualizing law as embodied in ‘concrete orders’ (‘Konkret Ordnungsdenken’). See, inparticular, his Über die drei Arten des rechtswissenschaftlichen Denkens (Hamburg 1934).See also R. Dreier, “Gustav Radbruch, Hans Kelsen, Carl Schmitt”, in H. Haller et al.,Hrsg. Recht und Staat (FS Winkler) (Wien, 1997), 193–215.

17 To my knowledge, this disconcerting affair boils down to the following: some facultiestried to keep their colleagues that were threatened with dismissal, by sending a request tothe Ministry. In some cases these efforts were successful. The faculty of Cologne also sent arequest on behalf of Kelsen. All faculty members except Schmitt signed that request. After1933, Schmidt’s writings are full of anti-Semitism. His remarks on Radbruch after the war(in his Glossarium) are malicious. See Dreier, supra n. 16, at 197, 200–201; S.L. Paulson,“Two Guides to the Thought of the German Jurists”, and M. La Torre, “Carl Schmitt andthe “Third Reich” ”, both in: Ratio Juris, 4 (1991), 257, 261–262; R. Gross, “Carl Schmitts“Nomos” und die “Juden” ”, in Merkur (1993), 410–420; R. Gross, Carl Schmitt und dieJuden. Eine deutsche Rechtslehre (Frankfurt am Main, 2000).

18 See B. Rüthers, Entartetes Recht. Rechtslehren und Kronjuristen im Dritten Reich(München, 1989), 99–180.

19 I refer to Rüthers, supra n. 18; M. Walther, supra n. 6; I. Maus, “ “Gesetzesbindung”der Justiz und die Struktur der Nationalsozialistischen Rechtsnormen”, in Recht und Justizim “Dritten Reich” ”, supra n. 6, at 323–354, 81–92. See also S.L. Paulson, “Lon L. Fuller,Gustav Radbruch and the ‘Positivist’ Theses”, supra n. 6, 323–324, 331–332, 354–355.

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Germany’s legal community during the Weimar years were not devotedto such a statutory positivism, and this should not come as a surprise.After all, it would have been strange if the lack of loyalty to the WeimarRepublic, which was so characteristic of large parts of the German popula-tion and of its intelligentsia,20 would have passed by the German legalcommunity. With his commitment, Radbruch’s attitude to Weimar wasthe exception, not the rule. In many ways, his colleagues tried to under-mine the authority of the Weimar legislator: by interpreting extensively orteleologically, by arbitrary application of the law,21 by criticizing demo-cratically established laws, by referring to the ‘law’ instead of statutes.22

The lawyers presented their criticism on the Weimar legislator under theveil of neutrality and impartiality, but this so-called impartiality was a wayto distance themselves from Weimar. The Nazi take-over brought thoselawyers a state they regarded as being superior to the Weimar Republic.Therefore, they rapidly dropped this veil of impartiality and were eagerto adapt positive law to the new circumstances in the so-called ‘DeutscheRechtserneuerung’ (the renewal of German law). National Socialism didnot, as Radbruch suggests, make use of a positivist mentality. Nor did itmake efforts to establish positivism. Rather the contrary: Nazism funda-mentally wanted to distance itself from positivism which it consideredto be a species of the so-called ‘normativism’, i.e., the view that ‘law’primarily consists of rules and that the legislator within the state takes intoaccount different social opinions and rules by means of impartially applied,abstract laws. As such, positivism stands for rationality, for calculability,for individuality. Statutory positivism would have meant an independentcentre of power and a strict fidelity of the judiciary to statutes. Thiswould have been an obstacle for the realization of ever-changing poli-tical goals and policies. In the Nazi ideology, state and law were notconsidered as a goal in itself, nor was much attention paid to positivelaws and rules.23 Nazism meant hostility to positivism and to its originin eighteenth-century, rational natural law.24 Its own form of natural law,

20 A well-known example is Heidegger.21 Instructive in this regard is the difference between the judgments concerning political

murders depending on whether they were committed by left-wing activists and communistsor by right-wingers. See, e.g., M. Walther, supra n. 6, at 328.

22 See, e.g., M. Hirsch, D. Majer and J. Meinck, Hrsg., Recht, Verwaltung und Justiz imNationalsozialismus (Nomos, Baden-Baden, 1997), 2, 66–78.

23 Ever since Franz Neumann’s Behemoth and Fraenkel’s thesis of the Dual State, thereis a vivid discussion on the legal character of the Nazi-state. See, for example, M. LaTorre, “A National-Socialist Jurist on Crime and Punishment. Karl Larenz and the so-called‘Deutsche Rechterneuerung”, Rechtstheorie 25 (1994), 59, note 11 for references.

24 Concerning the connection between Kantianism and positivism, see: H. Kelsen, VomWesen und Wert der Demokratie (Tübingen, 1929), 119; C. Schmitt, supra n. 16, at 42–43;

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“völkisches Naturrecht” derives from nature in the biological sense thesuperiority and inferiority of certain concrete forms of life as embodiedin different peoples.25 Supported by such supra-positive, natural norms,various philosophers of law had little trouble with finding justifications formany issues, ranging from the abolition of political parties and the federalstructure of the state (starting with the ‘Preußenschlacht’) to the lifting ofthe ban on the use of analogy and the ban on retroactivity in criminal lawand to concentration camps.26

The assertion that Radbruch changed his view on the nature of law,must be met with some skepticism too. The claim seems to be valid onlyin two respects. Walther and others presume that Radbruch primarily criti-cizes his own views on a specific point. They think that Radbruch deploresone specific element of his Rechtsphilosophie, in which he states that itis the categorical duty of every judge to obey the law and to apply iteven when the result of this application would run contrary to his ownsense of justice.27 As we will see, the position of the judiciary plays acrucial role in Radbruch’s text at hand. Another element of truth residesin Radbruch’s allegations against positivism, when it is interpreted notas statutory positivism, but as the equation of law and power. However,interpreting positivism as the willingness to obey all enforceable normsand as the tendency to suppose legitimization when power exists,28 haslittle to do with statutory positivism, as defended by Radbruch in theRechtsphilosophie.

As a result of this, it is not so evident that Radbruch radically changedhis views nor that a large gap exists between Radbruch’s ‘positivist’ viewon law before the Nazi era and his ‘natural law’ view after the war.Radbruch’s so-called ‘legal positivism’ did not identify law with power.In a manner that resembles Hart’s later criticism on Austin’s definition

I. Maus, “Die Trennung von Recht und Moral als Begrenzung des Rechts”, Rechtstheorie20 (1989), 191 ev.

25 Also B. Schumacher, supra n. 4, at 27, 30, 63; H. Rottleuthner, “Rechtsphilosophieund Rechtssoziologie im Nationalsozialismus”, Recht und Justiz im “Dritten Reich”, supran. 6, at 305; B. Rüthers, supra n. 18, at 65, 205; also (afterwards!) E. Forsthoff, “ZurProblematik der Rechtserneuerung (1947/48)”, in W. Maihofer, Hrsg., supra n. 3, at 78–79.

26 H. Rottleuthner, “Rechtsphilosophie und Rechtssoziologie im Nationalsozialismus”,Recht und Justiz im “Dritten Reich”, supra n. 6, at 301.

27 G. Radbruch, Rechtsphilosophie, supra n. 2, at Par. 10, 182: it is the professional dutyof the judiciary ‘nur zu fragen, was Rechtens ist, und niemals, ob es auch gerecht sei’.

28 M. Walther, supra n. 6, at 339–343, in line with G. Radbruch, “Gesetzliches Unrechtund übergesetzliches Recht”, supra n. 2, at 118; G. Radbruch, “Fünf Minuten Rechts-philosophie”, supra n. 13, at 335. On the basis of this ambivalence, Paulson distinguishesbetween ‘statutory legal positivism’ and ‘open legal positivism’, in “Lon L. Fuller, GustavRadbruch and the ‘Positivist’ Theses”, supra n. 6, at 328–338.

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of law, Radbruch constantly emphasises that law is a normative orderthat cannot be deduced from power alone. The relation between law andpower is a complex one, as law embodies several essential values. Inthis respect, it is interesting to look at his short 1934 essay, ‘Der Relati-vismus in der Rechtsphilosophie’ (Relativism in Legal Philosophy).29 It istrue: Radbruch’s emphasis on ‘relativism’ would seem to imply a rejec-tion of absolute values well known in natural law doctrine. But evidently,Radbruch defends relativism here against the kind of absolute values thatare being promoted in those years. Indeed, he rejects the view that a recog-nizable and provable conception of absolute ‘just law’ exists, yet look atwhat he deduces from ‘relativism’. According to Radbruch, in society adiversity of value systems exists. Scientifically, a choice between thosevalues is not possible, since science is concerned with the realm of ‘being’and not with that of ‘ought’. Since ‘truth’ cannot decide on the validityof law, the very act by which a will posits ‘law’ is not an act of scientifictruth. Therefore, this act cannot and may not put an end to the ideologicalstruggle over the question which values should gain the status of positivelaw. A relativist view in legal philosophy necessarily implies a numberof fundamental freedoms, which enable citizens to express their viewson what the law should look like. Every conceptualization of legislativepower would therefore immediately be confronted by the ‘natural’ limitsto its power set by those freedoms. Since law aims at establishing order,a relativist’s view on law would also immediately bring in the notionsof the rule of law and the separation of powers. It would be senselessto defend the view that law is created to establish order, if the legislatorwould not subject itself to that order, or if the executive power couldhave the discretion to create statutes by itself. Thus, relativism impliesrespect for different views on values and for persons holding these views,i.e., democracy. In addition, it implies socialism, since relativism demandsthat all should have sufficient ‘goods’ to hold and develop their views.Radbruch closes his 1934 article by arguing that from the nothing (ofnormative relativism) everything can be deduced: human rights, rule oflaw, separation of powers, popular sovereignty, freedom and equality. Forpresent day readers, this deduction of the 1789 ideas might make a some-what naïve impression, but it certainly shows that Radbruch, in his legalpositivist view, did not equate law with whatever any political power wouldordain.

It is regrettable that Radbruch’s questionable thesis on the relationbetween Nazism and positivism has been adopted so easily by many.It discredited legal positivism and it prevented questions on the moralresponsibility for criminal abuse of the law to be raised at an early stage.

29 In G. Radbruch, Der Mensch im Recht, supra n. 2, at 80–87.

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Probably the most distressing aspect of Radbruch’s thesis is that it couldand indeed did function as an excuse. Since positivism was to blame,nobody could be held accountable personally. Positivism made the entirelegal community, even the entire population,30 defenseless against lawsof arbitrary and criminal content. Due to their bad training and posi-tivist mentality, the legal profession is portrayed as a group of victims,instead of offenders. As we will see, one of Radbruch’s conclusions isthat judges, who applied unjust laws and interpreted ‘normal’ laws in anunjust, but politically prescribed way, cannot be prosecuted for bending thelaw (‘Rechtsbeugung’, based on paragraphs 366 and 344 of the CriminalCode). The reason is very simple: judges who only know of the existenceof positive law and not of any suprastatutory criterion, can only violate thelaw by not applying it, not by applying it. By definition they cannot havethe intention to bend the law.31

It cannot come as a surprise that Radbruch’s post-war attack on posi-tivism was seen as implicit support for those, like Schmitt, who hadattacked and opposed positivism already during the Weimar Republic.In connection with the eagerness with which Radbruch’s accusations onpositivism were taken for granted, a last element must be mentioned.Immediately after the war, the question at stake was whether the uncon-ditioned surrender by the Nazi-regime to the allied forces legally entailedthe demise of the legal personality of the German Empire. This was theposition taken by Kelsen.32 In retrospect, it can be argued that Radbruch’sthesis helped to defend the opposite position. If indeed positivism were toblame, it would be possible to make use of the legal infrastructure of the oldregime, albeit strongly tied to another legal theory, in order to reconstructon the ruins of the Third Reich a new order, with sufficient discontinuityas well as sufficient continuity. Within this option, Radbruch’s thesis couldserve as a fundamental building block.33

RADBRUCH’S CASES

We have seen that many things can be said about Radbruch’s article, evenwithout directly addressing the natural law formula for which it becamefamous. The interesting question arises, thus, whether an interpretation of

30 G. Radbruch, “Fünf Minuten Rechtsphilosophie”, supra n. 13, at 335.31 G. Radbruch, ‘’Gesetzliches Unrecht und übergesetzliches Recht”, supra n. 2, at 123.32 H. Kelsen, “The International Legal Status of Germany to be Established Immediately

Upon Termination of the War”, The American Journal of International Law 38 (1944),689–694.

33 M. Walther, supra n.6, at 352. Also BverfGE 3, 58 et seq.

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this formula would confirm or rather reject our findings so far. We needto know, therefore, how Radbruch’s famous formula reads and what it isaiming at. Importantly, it is located in the middle of the article, in its thirdparagraph. The first paragraph is a short introduction in which the generalaccusation against positivism is made. The second paragraph starts outwith lengthy quotes from postwar jurisprudence concerning three casesand a question of law. The third paragraph is intended to provide us witha solution of these problems. The formula cannot be studied, therefore,without taking the context of these cases into account. These are the casesof the so-called ‘grudge informer’. Puttfarken denounced Göttig during thewar because of his statement that ‘Hitler is a mass murderer and criminallyresponsible for the war’. The consequence was that Göttig was sentencedto death. Post-war jurisprudence posed the question whether Puttfarkencould be held criminally responsible for Göttig’s death. Because, ulti-mately, it was the judges, not Puttfarken, that sentenced him to death, thequestion is raised concerning the criminal responsibility of those judgeswho convicted Göttig. Next is the case of the executioners that carriedout unjust verdicts. Finally, there is the case of the deserter, who had nochoice but to kill a civil servant of the Nazi-regime in order to escapea death-threat. Invariably, so Radbruch holds, the question is whethernow, in the post-Nazi era, criminal prosecutions should commence. Andthe fact that they have begun, means (according to Radbruch) that frommany angles, including legal practice, positivism is being contested by theuse of notions like statutory injustice and suprastatutory law. Having thusintroduced these cases, Radbruch turns to a more general reflection in thethird paragraph, in which his allegations against positivism are repeatedand in which his ‘formula’ is introduced in order to solve the aforemen-tioned cases. This formula itself concerns the relation between the valuesthat are inherent in law, namely legal certainty, purposiveness and justice.There is nothing new in Radbruch’s notion that these three elements areconstitutive of ‘law’. He argued in this vein in the Rechtsphilosophie andin the 1937 article ‘Der Zweck des Rechts’ (The Aim of Law). But thereis a difference. Earlier on, Radbruch argued that, although the relationbetween these elements is not without frictions,34 these values were ofequal importance. Now, he argues that the value of justice can precede thatof legal certainty in extreme cases. The formula is as follows:

The conflict between justice and legal certainty should be solved accordingly: Preferenceis given to the positive law, duly enacted and secured by state power as it is, even when it isunjust and fails to benefit the people, unless its conflict with justice reaches so intolerable

34 In G. Radbruch, Der Mensch im Recht, supra n. 2, at 88–104, 104; G. Radbruch,Rechtsphilosophie, supra n. 2, at 168–173.

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a level that the statute becomes, in effect, “incorrect law” (“unrichtiges Recht”) and musttherefore yield to justice. It is impossible to draw a sharper line between cases of statutoryinjustice and statutes that are valid despite their flaws. One line of distinction, however,can be drawn with utmost clarity: Where there is not even an attempt at justice, whereequality, the core of justice, is deliberately betrayed in the issuance of positive law, thenthe statute is not merely “false law” (“unrichtiges Recht”), it lacks completely the verynature of law. For law, including positive law, cannot be otherwise defined than as a systemand an institution whose very meaning is to serve justice.35

These lines contain a number of peculiarities. Firstly, the priority oflegal certainty is formulated in a special manner, as Radbruch equatesthe tension between legal certainty and justice to the tension between acontestable, but positive statute and the demand of justice. This is remark-able, since legal certainty is a moral notion, which cannot be equatedwith the existence of positive law. Legal certainty indicates an attitude tostatutes, namely to respect and to obey it, but is not identical to statutesand positive law itself.36 Next is the difficulty that the quote itself appearsto contain two formulas rather than one. The literature speaks about theformula of ‘intolerability’ and that of ‘betrayal’.37 In the jurisprudenceof the German Constitutional Court, as well as in that of the GermanHigh Court, the second element does not play a role. It is argued thatthe element of ‘denial’ concerns something that can hardly be proven,namely the intentional lack in the legislator to realize equality as the coreelement of justice. Moreover, so it is said, the kind of equality, whichRadbruch considers to be the core of ‘law’, is not that of an absolute ormaterial equality, but that of proportional equality: people are to be treatedequally in so far as they are equal, but unequally in so far as they areunequal.38 Here, of course, everything turns on the criterion used to distin-guish the cases that are regarded as equals from the ones that are regardedas unequal. Such formal equality would not entail, for instance, equalhuman rights. Therefore, the aspect of betrayal is said not to be essential fordetermining statutory injustice, but only intolerability. Radbruch himself,however, does not seem to realize this tension in his formula. Moreover, in

35 G. Radbruch, “Gesetzliches Unrecht und übergesetzliches Recht”, supra n. 2, at 119.A parallel phrasing in: G. Radbruch, Vorschule der Rechtsphilosophie (the publication ofRadbruch’s 1947 lectures), Göttingen 1965, 32–33, 113.

36 Radbruch distinguishes three meanings of legal certainty in: Der Zweck des Recht,Vortrag auf dem kongress des Internationalen Instituts für Rechtsphilosophie in Romam 1. April 1937, reprinted in G. Radbruch, Gesamtausgabe, A. Kauffmann, ed. Vol. 3(Heidelberg, 1990), 39–50.

37 H. Dreier, “Gustav Radbruch und die Mauerschützen”, Juristen Zeitung 52(1997), 423; R. Dreier, “Gesetzliches Unrecht im SED-Staat? Am Beispiel des DDR-Grenzgesetzes”, Strafgerechtigkeit (F.S. Kaufmann), Hrsg. F. Haft et al. (Heidelberg,1993), 57 et seq.

38 Radbruch follows Aristotle in: Der Zweck des Rechts, supra n. 36.

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the passage immediately following the quoted passage, Radbruch speaksof the ‘standard’ and clearly considers what he wrote before to be some-thing singular. He then seems to apply the above quoted passage in whatappears to me as a kind of reverse order. First, he turns to the aspect ofthe betrayal in Nazi law and second to the aspect of intolerability. Atleast that is how I understand Radbruch, when he writes that Hitler andNazism suffered from an absence of any sense of truth and justice. Thisfeature of Hitler and his followers was apparent from the start. Equalitydid not matter for them. They applauded one murder, starting with that ofcommunist Pietzruch at Potempa39 through that of the martyrs on July 20th1944, and mourned over the murders of others. According to Radbruch,Nazism denied, from the start, the essential characteristic of legal certainty,which is treating equal cases equally. Consequently (‘infolgedessen’ inRadbruch’s terminology) large parts of national-socialist ‘law’ lack thequality of law. In particular, Radbruch denies the legal quality of thefollowing elements: the provisions with which the national-socialist partyclaimed for itself the totality of the state, the laws on which the inhumantreatment of certain categories of human beings was based, and the viola-tions of the principle of proportionality in sentencing criminals, which ledto the death penalty even for minor offences. Without even mentioning theelement of intolerability, Radbruch seems to argue that all these regulationswere clear examples of statutory injustice.40

At this point, a pressing question arises: how is it possible thatRadbruch did not pay attention to the distinctiveness of the two elements inhis formula so obvious for his readers? Why is he not aware that he seemsto introduce a criterion of equality that is not formal, but rather material?41

Radbruch does not answer these questions, but turns to the other aspect ofhis formula, that of the intolerability in order to solve the cases mentioned

39 On August 9, 1932, members of the SA murdered this communist at Potempa, Silesia.Hitler had not acquired governmental power and still hesitated whether he should seizepower by force or by legal means. Because of his loyalty to the SA, he fulminated againstthe fact that these SA-murderers were sentenced to death. In a telegram, he promised tofight for their case. After that telegram, the death sentence was converted to life impri-sonment. After Hitler took over political power, these murderers were released. See, forexample, A. Bullock, Hitler: A study in Tyranny (London: Odhams, 1952), G. Radbruch,Rechtsphilosophie (Studienausgabe) S.L. Paulson and R. Dreier, ed., 197. It is worth noti-cing that Radbruch declares his aversion of what happened after the Potempa-murder herefor the second time. Already in 1933(!), Radbruch criticized the case, almost in the samewording (in both cases he mentions Alfred Rosenberg’s article in the Nazi newspaperVölkischer Beobachter), in: Autoritäres oder soziales Strafrecht, in G. Radbruch, DerMensch im Recht, supra n. 2, at 75.

40 G. Radbruch, “Gesetzliches Unrecht und übergesetzliches Recht”, supra n. 2, at 120.41 Perhaps Radbruch’s formal equality is less formal than often supposed, see also: R.

Dworkin, Law’s Empire (Oxford, 1998), 185.

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earlier on. Before turning to these cases in detail, Radbruch supports thegeneral recommendation that action can be taken against statutory injusticeduring the Nazi-regime only with great caution. After this period of legaluncertainty,42 Radbruch argues, one has to safeguard legal certainty asmuch as possible, as an essential legal value. Therefore, it should not beup to every single judge to invalidate statutes by referring to justice. Thisshould be the prerogative of highest courts or the legislator.

When Radbruch then proceeds to the mentioned cases, the followingimmediately strikes the reader. While originally four questions werebrought under discussion (namely Puttfarken, punishability of judges, theexecutioners and the deserter), Radbruch only discusses three issues: thedeserter, Puttfarken and the executioners. The issue of punishability ofjudges is now integrated into the Puttfarken case. First, Radbruch discussesthe deserter’s case: the issue of whether he is punishable for killing a civilservant, can be solved as follows. In the meantime, the (functioning) legis-lator who Radbruch holds to be competent to determine statutory injustice,has stipulated that resistance against the Nazi regime is excusable, basedon the “Gesetz zur Wiedergutmachung nationalsozialistischen Unrechts inder Strafrechtspflege”, which states in its §1 that resistance against theNazi regime is not punishable.43 This means that the deserter cannot bepunished. The “Gesetz zur Ahndung nationalsozialistischer Straftaten”44

is relevant for the three other cases and implies that the acts under consid-eration can be persecuted only if the criminal liability of those acts alreadyexisted at the time they were committed on the basis of the GermanEmpire’s Criminal Code of 1871. Therefore, no legal problem existsconcerning the executioners. One does not have to approve of the moralityof their acts in order to come to the conclusion that they are not punishable.

42 G. Radbruch, ‘’Gesetzliches Unrecht und übergesetzliches Recht”, supra n. 2, at 120,124; “Fünf Minuten Rechtsphilosophie”, supra n. 13, at 335.

43 Radbruch does not mention the precise legal phrasing, nor does he discuss the issueof retroactivity and the validity of law. This seems to contradict his earlier plea for legalcertainty. Specifically, he does not address the connection between to statute nr. 10 ofthe allied control council, which figured in the before mentioned jurisprudence, whilethe relation of the statute to the principle of “nulla poena sine lege” was indeed underdiscussion, see M. Stolleis, “Rechtsordnung und Justizpolitik 1945–1949”, in M. Stolleis,Recht im Unrecht, Studien zur Rechtsgeschichte des Nationalsozialismus (Frankfurt amMain 1994), 272. This leads one to suspect that Radbruch did not mean to address theproblem of retroactivity of criminal law in his article. His article was perceived this wayby Hart, “Positivism and the Separation of Law and Morals”, Harvard Law Review 71(1957–58), 616–620; and L. Fuller, “The Problem of the Grudge Informer”, in L. Fuller,The Morality of Law (New Haven and London, 1964), 245–253.

44 Both laws can be found in the notes in G. Radbruch, Rechtsphilosophie (Studienaus-gabe ed. S.L. Paulson, R. Dreier), 288–291.

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The executioners could rightly call upon the fact that they only carried outwhat they were instructed to do. With that, only Puttfarken remains as acase of significance. Since, with the Puttfarken case, the legal question israised concerning the criminal accountability of the judges who decidedthe Göttig case, we have to pay special attention to this case and I willfollow Radbruch’s lead in examining the legal proceedings throughout thiscase quite closely.

In his earlier presentation of the case, Radbruch quotes the prosecutorwho argued that there were two possible legal constructions applicable toPuttfarken. He could either be convicted as an indirect perpetrator or as anaccomplice to murder (‘mittelbare Täterschaft’ or ‘Beihilfe’). The court’schoice for either of these possibilities has significant consequences for thejudges in the Göttig case. After all, in the case of convicting Puttfarken asan “indirect perpetrator”,45 one would have to consider the Göttig judgesas unaccountable instruments in the hand of Puttfarken acting withoutusing their autonomous wills.46 Similar to when a criminal abuses a dogor an insane person for his criminal purposes, a court can be used asan instrument of criminal intent; at least, so it appears. Obviously, thefounders of the “indirect perpetrator” doctrine had not thought of such aninterpretation, but why could it not be included? In this interpretation, thejudges would not be more responsible for what happened to Göttig than anattacking dog. However, if one decided, with the jury court in the actualcase, to convict Puttfarken as an accomplice to murder, the Göttig judgesinevitable should be regarded as guilty of murder too.

When discussing the Puttfarken case, Radbruch seems to resist thisactual outcome. He seems not to be very satisfied that former judges couldnow be prosecuted for inhumane convictions during the Nazi regime. Atleast so it seems, since Radbruch writes that it was Puttfarken’s aim toget Göttig sentenced to death and that he used the judges as an instrumentto this goal. Of course, one asks: how can Radbruch be so certain here?Has he been able to examine Puttfarken’s criminal intent? Surprisingly, theanswer does not lie with Puttfarken, but with the Göttig judges. Radbruch’sreasoning here is at the same time complex and surprisingly simple. Toconvict Puttfarken as an accomplice would imply that the judges in thiscase were guilty of murder. This would then, as we saw, presuppose that

45 See for the doctrine “Die mittelbare Täterschaft”, for example, H.-H. Jeschek and T.Weigend, Lehrbuch des Strafrechts. Allgemeiner Teil, 5th ed. (Berlin, 1992), 662 et seq.

46 In the actual Bamberg case Hart refers to in The Concept of Law, supra n. 5, at 208,the same reasoning can be found, despite Hart’s wrong presentation of what the court said.See also H. Hofmann, Einführung in die Rechts- und Staatsphilosophie (Darmstadt, 2000),110–118.

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the judges on their side would have bent the law (‘Rechtsbeugung’). This,however, is not an option, since they were trained as positivists, aimingat applying the law only. Since these judges were not allowed to reviewstatutes by referring to some moral, suprastatutory criterion, they couldonly have bent or violated the law by not applying or obeying it, butnot by applying or obeying it. As long as judges respected establishedlaw, however horrific it may have been, they cannot be held criminallyresponsible for their decisions. It is not Puttfarken’s psychological statethat is decisive here, but positivism. Here we have the curious consequenceof Radbruch’s charges against positivism: because the judges during theNazi regime only knew positive law, positivism did not only make themdefenseless against statutory injustice, but also absolved them, retrospec-tively, from all responsibility for applying it.47 Because of positivism, thejudiciary was an instrument in the hands of the Nazi regime, and of peoplelike Puttfarken. With this reasoning, the responsibility for legal criminalityand criminal legality is laid with the legislator and with the doctrine ofpositivism, and with individuals like Puttfarken, but not with institutionslike the judiciary or its personnel.

RADBRUCH’S HERITAGE

If we try to evaluate Radbruch’s influential article, this can no longer boildown to the conclusion, sometimes made in legal philosophy textbooks,that Radbruch brought an end to an ‘evil’ positivist theory by reintro-ducing natural law, human rights and the like.48 Radbruch’s heritage isambivalent: it formulates an empirical thesis on the legal views judges heldduring the Nazi era, which is questionable. Radbruch’s primary concerndoes not seem to be with justifying retroactive criminal law, or withrendering invalid some laws, which were once valid, as Hart suggests. Heis concerned with the difficult position of the judiciary after the demiseof Nazi rule, a concern wholly overseen by Hart.49 He wants to give ananswer to the question as to what should be done with those in the judiciarywho applied without much hesitation the most horrific legal regulations.As we saw, Radbruch’s position is astonishingly mild and modest here.

47 Similarly “. . ., mag auch dem Richter, eben wegen seiner positivistischen Recht-serziehung, solches Unrecht nicht zur persönlichen Schuld angerechnet werden”, inG. Radbruch, “Die Erneuerung des Rechts”, in W. Maihofer, Hrsg., Naturrecht oderRechtspositivismus, supra n. 3 (originally in Die Wandlung, 1947).

48 For example, R. Wachs, Jurisprudence, 5th ed. (Blackstone, 1999), 109.49 T. Mertens, “Radbruch and Hart on the Grudge Informer. A Reconsideration”, supra

n. 1.

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The true culprit is positivism, for which these judges were not respon-sible. That mentality should forever belong to the past and legal educationshould be thoroughly revised by paying attention to natural law, humanrights and comparative law.50 Unsurprisingly, Radbruch’s thesis that posit-ivism was to blame for the criminal legality and its practices during theNazi-years and that the judiciary was, in a sense, victim of perverse Nazi-legislation, was widely accepted for a long time. Bernd Rüthers’s 1968book, Die unbegrenzte Auslegung. Zum Wandel der Privatsrechtsordnungim Nationalsozialismus was the start in bringing this myth to an end. Thispublication paved the way to a much more historically sound consider-ation of the role of law and the judiciary in the Nazi era. From thenon, many studies with often quite disconcerting conclusions have beenpublished.51 Perhaps these facts were too difficult to be faced immedi-ately after Germany’s defeat.52 Still, it remains an open question why aperson of such moral stature as Radbruch came up with this explanation.As mentioned, Radbruch might have been deeply unsatisfied with his ownview, according to which judges should in all cases apply and obey the law,even if it would run contrary to their own sense of justice.53 However, thissuggestion is not very satisfactory either. During the Nazi era, the judiciarywas eager to put positive statutes aside in order to reach the then politic-ally correct conclusions. One would wish that the judiciary had resistedpolitical power and, indeed, had obeyed the law.54 In any case, legal posit-ivism does not deserve the bad reputation it has been given because ofRadbruch’s accusations.

Over the years, the importance of Radbruch’s formula has beenconfirmed by a number of judgments of both the German ConstitutionalCourt and the German High Court, concerning cases that were directlyrelated to the national-socialist era. Recently, after German reunification,there was a renaissance of Radbruch’s formula in German case law due tothe criminal proceedings against representatives of the former GDR. Forexample, soldiers that guarded the border and their superiors were put totrial for shooting GDR civilians who wanted to flee to the FRG by climbing

50 See “Erneuerung des Rechts”, in G. Radbruch, Der Mensch im Recht, supra n. 2,at 107–110 (originally as a lecture at the reopening of the Law Faculty in Heidelberg in1946).

51 See, for instance, I. Müller, Furchtbare Juristen, Die unbewältigte Vergangenheitunserer Justiz (München, 1989).

52 In this respect, Germany is of course not unique.53 G. Radbruch, Rechtsphilosophie (Studienausgabe), supra n. 2, at par. 10, 85.54 See also M. Kriele, Recht und praktische Vernunft (Göttingen, 1979), 123. One should

realize that the principle of ‘nulla poena’ in the German Criminal Code was violatedfrequently in legal practice, but not formally abolished.

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over the Berlin wall or swimming across the river Spree. In September1996, the Landgericht in Berlin sentenced some generals of the formerborder patrol to imprisonment for their responsibility. On this occasion,the president of the criminal trial chamber in question declared that thecore issue of the process was the applicability of Radbruch’s formula, sincethe accused held that the shooting was justified by law: to be precise, byGDR border law Par. 27 and the corresponding instructions of the NationalSecurity Council. These alleged justifications of the shootings have beenrejected by the German courts and – recently – by the European Courtof Human Rights. In the centre of legal reasoning in these often verylong judgments stands the judge’s conviction that such provisions do notdeserve the status of ‘law’, merely because of their being written down insome statute. In Radbruch’s terminology, these judges regarded such legalprovisions as ‘statutory injustice’, because of their ‘intolerable’ conflictwith justice.55 In the commentary on these judgments, it has been arguedthat the decision indeed in the end depended on Radbruch’s formula. Thisdoes not imply general agreement. H. Dreier, for example, considers thismotivation for convicting the ‘wall shooters’ insufficient.56 He argues thatit conflicts with the absolute ban on retroactive criminal law in FRG law.He also argues, not unlike Radbruch’s recommendation, that the legislatorshould take the lead in cases like that of judging acts committed in pastregimes. Another important objection to the use of Radbruch’s formulafor deciding such cases is motivated by the profound doubt as to whetherordinary criminal law, which is meant to deal with ordinary crime, can beapplied to so-called statutory criminality. Some say that these two situ-ations are so different that they ask for different solutions. In ordinarycriminal law, compliance with the rule is presupposed and the violationof the rule is the exception that has to be corrected. Situations of legalcriminality are very different, as it is difficult to determine what is therule and what the exception. If one aims at redressing striking criminalacts of past regimes, one runs the risk of attributing to some individualsmore criminal responsibilities than to others. It can hardly be defendedthat the evil character of the GDR’s regime resides solely or primarily inthe way it kept its borders closed, as little as that Puttfarken would exem-

55 See, for example, R. Alexy, Mauerschützen. Zum Verhältnis von Recht, Moral undStrafbarkeit (Hamburg, 1993); J. Lensing and T. Mertens, “Wettelijk onrecht in devoormalige DDR. Radbruch en de bestraffing van voormalige DDR-functionarissen”,Rechtsgeleerd Magazijn Themis 159/6 (1998), 163–176. Ironically, of course, Radbruchused his formula to exonerate the Nazi judges, while these courts used the formula forconvicting these guards and their superiors.

56 H. Dreier, “Gustav Radbruch und die Mauerschützen”, Juristen Zeitung 52 (1997),421–434.

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plify Nazi evil. Despite its apparent flaws, still much can be learned fromRadbruch’s little essay in this respect. The problem of ‘statutory injustice’resides in the way a society and its officials accept evil law. Ascribingcriminal responsibility to some, and overlooking the acts of most others(the ‘bystanders’) does however, not solve this problem.57 In their mostlytacit consent resides the true evil of such a regime.58

Faculty of LawUniversity of Nijmegen6500 KU NijmegenThe NetherlandsE-mail: T.Mertens@jur.kun.nl

57 Following R. Hilberg, Perpetrators, Victims, Bystanders. The Jewish Catastrophe1933–1945 (New York, 1992).

58 See, for instance, H. Arendt, Eichmann in Jerusalem, A Report on the Banality of Evil(Penguin, 1963, 1992), 116.