54 Habermas: An intellectual biography
unwittingly aided in the construction of the alibi of judicial pos-
itivism. Jurists in the 1950s then hid behind the moral authority
Radbruch deservedly enjoyed. “Positivism, with its conviction ‘law
is law’ [Gesetz ist gesetz], did in fact make the German class of jurists
[Juristenstand] defenseless against laws of an arbitrary and criminal
content. For this reason, positivism is not at all in the position to
ground the validity of laws on its own.”^119 Radbruch’s assertion was
seized as an opportunity by such influential figures as the first pres-
ident of the Federal Constitutional Court, Hermann Weinkauff,
who helped promote the renaissance of arguments from natural law
that had dominated the first half of the decade.^120 In an influential
essay published September 12, 1945, entitled, “Reappraisal of Legal
Philosophy,” Radbruch renounced legal positivism for its weakness
in the face of Nazism:
Such an attitude towards the law and its validity [i.e., positivism]
rendered both lawyers and people impotent in the fact of even the
most capricious, criminal or cruel laws. Ultimately this view that
only where there is power is there law [Recht] is nothing but the
affirmation that might makes right.^121
By mid-decade, the jurists had embraced a self-serving myth, blam-
ing their moral failures in the Nazi era on legal positivism. As one
scholar explains,
Hubert Schorn, a retired County Court judge, saw the “positivistic
miseducation” of jurists as responsible, while Hermann Weinkauff,
retired judge of the Reichsgericht and first president of the Federal
Supreme Court, numbered arbitrary decisions by judges and legal
murder by the courts among the “disastrous consequences of legal
positivism.”^122
Schorn went on to author the most influential example of the
myth: His Judges in the Third Reich was published in 1959.^123 The(^119) Ibid.
(^120) For example, Weinkauff, “Der Naturrechtsgedanke in der Rechtsprechung
des Bundesgerichthofes,” in Naturrecht oder Rechtspositivismus? ed. Werner
Maihofer (Bad Homburg vor der Höhe: Hermann Gentner Verlag, 1962 ),
554 –76.
(^121) Stanley Paulson, “Lon Fuller, Gustav Radbruch and the ‘Positivist’ Theses,”
Law and Philosophy 13:3 ( 1994 ), 313.
(^122) Müller, Hitler’s Justice, 221.
(^123) Hubert Schorn, Der Richter im Dritten Reich (Frankfurt: Klostermann,
1959 ).