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

Yang, K. (2012) The Rise of Legal Positivism in Germany: A Prelude to Nazi Arbitrariness? The Western Australian Jurist, 3 . pp. 245-257.

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Abstract

The paper will first look at the rise of legal positivism that left the door ajar for Nazi arbitrariness to enter the system, and how in adopting a separation of ‘is’ and ‘ought’ approach to the law, it left the German legal profession little theoretical resources to resist such arbitrariness. The paper will then juxtapose a hypothetical: whether natural law might have offered better theoretical resources to resist such arbitrariness and conclude with a brief reflection of the dangers of such a strict separation of ‘is’ and ‘ought’ to legal analysis if we are to learn from history and wish to avoid a repeat of the atrocities of the Nazi system.

Publication Type: Journal Article
Publisher: Western Australian Legal Theory Association (WALTA)
Copyright: Western Australian Legal Theory Association (WALTA)
Publishers Website: http://www.murdoch.edu.au/School-of-Law/Research-a...
URI: http://researchrepository.murdoch.edu.au/id/eprint/15553
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