Legal Positivism

In 1944, while home on leave from the front, a German soldier made many insulting comments about Adolf Hitler, which his wife overheard. According to a 1934 statute, making such comments was a legal crime. Although she had no legal duty to report her husband to the authorities, the soldier’s wife did so anyway. (She later admitted that her motive was to get rid of her husband, since she was having an affair while he was fighting.) The soldier was arrested, tried, convicted, and sentenced to death.

After the war in 1949, the soldier’s wife was arrested by the West German police, and was charged with the crime of unlawful deprivation of liberty, a statute that dated back to the 1870s in German law, and that had remained valid in the German criminal law system ever since, including during the Nazi period. She was tried and found guilty, and sentenced to a lengthy jail term. She then appealed the conviction to a West German appellate court. She based her appeal on the fact that what she did – reporting her husband – conformed to a valid statute, making her later prosecution and conviction unjust according the the legal principle “nullem crimen et nulla poena sine lege.”

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Her appeal was rejected. The West German appeals court acknowledged the factual truth of her defense, yet nevertheless argued that the 1934 statute was “contrary to the sound conscience and sense of justice of all decent human beings.” Her conviction was upheld.

How do you think a legal positivist such as Hart would evaluate the decision of the appellate court? How would Moore?

Helpful hint: you will NOT have enough space in this very short paper to give a summary of everything you know about legal positivism – so you’ll need to laser in on the target without wasting words.

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