The Making of a ‘58er 55
contradictions in the myth of judicial positivism went unchallenged
until the late 1960s, when a new generation of historians unveiled
its falsity. The thesis that legal positivism tied the hands of Nazi
judges was ultimately discredited by a generation of scholarship, and
the exonerating function of the “Radbruch thesis” was thrown into
relief.^124 As Manfred Walther concluded:
The call to suprapositive law was no alternative to the legal thought
of the Third Reich. The “new beginning” indicates much more
continuity with the central elements of the legal thought in the fas-
cist time, than has commonly been accepted. The Radbruch thesis
has thus in terms of its historical reception had the function of con-
cealing this continuity.^125
In all the discussion of the alleged value-neutrality of Nazi
judges and jurisprudence, the fact that “material justice” and “mate-
rial illegality” had been the watchwords in Nazi criminal law was
repressed because it did not fit with the claim that judges had been
the victims of a “formalistic” training. In fact, the Nazi state had
issued laws that left to judges the responsibility for filling in the
content of blanket clauses such as “... with regard to the racial feel-
ings of the people [Volk].” Nazi judges often went beyond what was
officially required by the law to anticipate the underlying will of
the Führer.^126 Nazi legal doctrines were in fact the exact opposite of
legal positivism.^127
Schmitt’s explicit antipositivism went unmentioned. Directly
contradicting the traditional formula of Nulla poena sine lege – no
penalty can be retroactive and what constitutes a punishable offense
must be clearly expressed in a statute – Schmitt had written in 1934
that “... no crime without punishment was more important than no
punishment without law.”^128 From his 1912 dissertation to his 1934
work, Schmitt was a critic of positivism. In 1932–33, both Schmitt
(^124) Ibid., 314. See also Björn Schumacher, “Rezeption und Kritik der
Radbruschen Formel,” Ph.D. dissertation, University of Göttingen, 1985,
31–103; and Stanley Paulson, “On the Background and Significance of
Gustav Radbruch’s Post-War Papers,” Oxford Journal of Legal Studies 26:1
( 2006 ), 17–40.
(^125) Walther, “Die Positivismus-These,” 353.
(^126) Müller, Hitler’s Justice, 73.
(^127) Ibid., 220.
(^128) Ibid., 75. Schmitt, “Der Weg des deutschen Juristen,” Deutsche Juristen-
Zeitung 39 ( 1934 ), 698.