Legal oughts, Normative Transmission, and the Nazi Use of Analogy
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
Jurisprudence 3 (2):445-463 (2012)
In 1935, the Nazi government introduced what came to be known as the abrogation of the pro- hibition of analogy. This measure, a feature of the new penal law, required judges to stray from the letter of the written law and to consider instead whether an action was worthy of pun- ishment according to the ‘sound perception of the people’ and the ‘underlying principle’ of existing criminal statutes. In discussions of Nazi law, an almost unanimous conclusion is that a system of criminal law ought not to contain legislation of this sort. This conclusion is often based on how the abro- gation relates to the normative claim that the law ought to be predictable. In particular, it has been argued that since the law ought to be predictable, and since this type of analogy legis- lation implied, caused or contributed to the diminution of the law’s predictability, this type of legislation ought to be prohibited. In this paper, we argue that this argument is not entirely correct. While we believe that the law ought to be predictable and that there is evidence for the claim that the Nazis’ intro- duction of analogical reasoning implied, caused, or contributed to a diminution of predictability, this fact is logically too weak to ground the conclusion that necessarily a penal system ought not to contain legislation of this kind. Despite the undeniable wickedness of the Nazi penal system, this type of analogical reasoning can be made consistent with the pre- dictability of the law. We argue that consistency of this sort depends on whether the use of analogy is supplemented by certain contextual background conditions. The occurrence of these conditions blocks an inference from the fact that the law ought to be predictable to the conclusion that a penal system ought not to allow for this type of analogical reasoning.
|Keywords||Nazi law Analogy Normative Transmission|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Herlinde Pauer-Studer (2012). Law and Morality Under Evil Conditions. The SS Judge Konrd Morgen. Jurisprudence 3 (2):367-390.
Carolyn Benson & Julian Fink (2012). Introduction: New Perspectives on Nazi Law. Jurisprudence 3 (2):341-346.
Harm Kloosterhuis (2000). Analogy Argumentation in Law: A Dialectical Perspective. [REVIEW] Artificial Intelligence and Law 8 (2-3):173-187.
Mark Greenberg (2006). How Facts Make Law. In Scott Hershovitz (ed.), Exploring Law's Empire: The Jurisprudence of Ronald Dworkin. Oxford University Press 157-198.
Peter Rijpkema (2011). The Inevitability of Moral Evaluation. Ratio Juris 24 (4):413-434.
Panu Minkkinen (2005). Why is Law a Normative Discipline? On Hans Kelsen's 'Normology'. Res Publica 11 (3):235-249.
Neil MacCormick (2007). Institutions of Law: An Essay in Legal Theory. Oxford University Press.
W. Burg (2001). The Expressive and Communicative Functions of Law, Especially with Regard to Moral Issues. Law and Philosophy 20 (1):31-59.
Leo Katz (2011). Why the Law is so Perverse. University of Chicago Press.
John Arthur & William H. Shaw (eds.) (2010). Readings in the Philosophy of Law. Pearson Prentice Hall.
Bas van der Vossen (2011). Assessing Law's Claim to Authority. Oxford Journal of Legal Studies 31 (3):481-501.
Added to index2012-11-23
Total downloads20 ( #181,641 of 1,793,270 )
Recent downloads (6 months)8 ( #101,521 of 1,793,270 )
How can I increase my downloads?