The Making of a ‘58er 53
during the Weimar Republic) and its ambition to integrate West
German society.
Smend’s theory also played a dramatic role in preventing
Germans from coming to terms with the Nazi past, though. Smend’s
influence on jurisprudence in the 1950s illustrates the broader thesis
that under Adenauer, West Germany chose integration and forget-
ting of the past over timely justice.^116 By embracing Smend’s theory
of democratic integration, the vast majority of judges and professors
who had implemented and promoted Nazi law acquired an inge-
nious alibi for their former actions. These jurists claimed that the
traditional legal methods they had inherited from the Empire had
tied their hands, forcing them to execute laws without regard to
any so-called extralegal (i.e., moral or political) considerations.^117
According to this version of legal positivism, law was a closed sys-
tem; the judge lacked agency and simply “applied” the statute to the
case at hand in a mechanical fashion. The jurists who had embraced
Nazi ideology and applied the state’s racist laws argued that they had
only been following orders: “The law is the law.” Moral consider-
ations were not part of their legal habitus. As judges, they argued,
they had no choice but to implement it. This was the genesis of the
myth of judicial positivism.
The rise of this myth also was facilitated by the positive recep-
tion afforded by the officials of the Allied Occupation to another
important Weimar theorist, Gustav Radbruch (1878–1949). After
1946, Radbruch, a former Minister of Justice in the Weimar
Republic, encouraged judges to evaluate law from the perspective
of suprapositive values, for example, justice, which he conceived
as an expression of natural law. The legality of the laws was not
sufficient to legitimate them. “Positivistic legal thought... a tra-
dition nearly unbroken for many decades, dominated the jurists.
Legal wrong [gesetzliches Unrecht] was as much of a contradiction
in itself as unwritten law.”^118 Lacking any cynical motive, Radbruch
(^116) See Jeffrey Herf, Divided Memory: The Nazi Past in the Two Germanys
(Cambridge, MA: Harvard University Press, 1997 ); Norbert Frei, Adenauer’s
Germany and the Nazi Past: The Politics of Amnesty and Integration, trans. Joel
Golb (New York: Columbia University Press, 2002).
(^117) For legal theory in the Empire, see Peter Caldwell, Popular Sovereignty and
the Crisis of German Constitutional Law: The Theory and Practice of Weimar
Constitutionalism (Durham, NC: Duke University Press, 1997).
(^118) See Gustav Radbruch, “Gesetzliche Unrecht und Übergesetzliches Recht”
[orig. Süddeutsche Zeitung 1 (1946), 105–8]; reprinted in Rechtsphilosophie,
6th ed., Erik Wolf (Stuttgart: Köhler, 1963), 347.