(2012)	Jurisprudence	3(2),	pp.	445-463 LEGAL	OUGHTS,	NORMATIVE	TRANSMISSION, AND	THE	NAZI	USE	OF	ANALOGY Carolyn	Benson,	Vienna Julian	Fink,	Vienna Abstract In	1935,	the	Nazi	government	introduced	what	came	to	be	known	as	the	abrogation	of the prohibition 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 punishment according to the 'sound perception of the people' and	an	'underlying	principle'	of	an	existing	criminal	statute. 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	abrogation	relates	to	the	normative	claim	that	the	law	ought	to	be	predictable.	In particular, it has been argued that the Nazi use of analogy diminishes the law's predictability such that the fact that the law ought to be predictable transmits its normativity	to	a	prohibition	of	a	Nazi	type	of	analogy	legislation. 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' introduction	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 predictability 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. Introduction On June	28th, 1935, the	Nazi government	enacted	a crucial amendment to the	German penal	law.	According	to	the	act's	first	article, Whoever	commits	an	act	which	the	law	declares	to	be	punishable	or	which	is	deserving of	punishment	according	to	the	fundamental idea	of	a	penal	statute	and	according	to the	sound	perception	of	the	people	shall	be	punished.	If	no	determinate	penal	statute 2 is directly applicable to the deed, it shall be punished according to the statute, the fundamental	idea	of	which	fits	it	best.1 As a result of this amendment, judges were no longer required to provide a strict interpretation	of	a	criminal	statute	according	to	the	'mere'	letter	of	the law.	As	the	act states,	they	were	now	required	to	consider	whether	an	action	was	worthy	of	punishment according	to	(i)	the	'sound	perception	of	the	people'	and	(ii)	an	underlying	principle	of	the existing	criminal law.	This law	came	to	be	known	as	the	abrogation	of	the	prohibition	of analogy	(APA)	as	defined	by	the	Criminal	Code	of	1871.2 The	APA	instructed	judges	to	construct	extensive	or	non-literal	interpretations	of	existing criminal	statutes:	where	an	act	deemed	punishable	according	to	the	'sound	perception	of the people' did not fully fall	within a given statute's	wording, a judge could turn away from the letter of that statute and focus instead on its grounding sense or spirit (its 'underlying	principle')	as	a	guide	to	determining	whether	the	act	ought	to	be	sanctioned.3 In	reasoning	this	way,	a	judge	would	be	applying	an	existing	statute,	L,	to	an	unregulated case	which	is	condemned	by	the	'sound	perception	of	the	people'	and	which,	because	it	is covered	by	the	fundamental idea	of	L (but	not its letter), is	deemed	analogous	to	those cases	in	fact	covered	by	the	wording	of	L.4 1 'Gesetz zur	Änderung	des Strafgesetzbuchs vom	28. Juni 1935',	Art. 1, §2. RGBl. I, p. 839. Like amendments	were	inserted	as	§§170a	and	267a	of	the	Strafprozessordnung	('Gesetz	zur	Änderung von Vorschriften des Strafverfahrens und des Gerichtsverfassungsgesetzes vom 28. Juni 1935', RGBl.	I,	p.	844).	The	original	German	reads	as	follows:	'Bestraft	wird,	wer	eine	Tat	begeht,	die	das Gesetz für strafbar erklärt oder die nach dem Grundgedanken eines Strafgesetzes und nach gesundem Volksempfinden Bestrafung verdient. Findet auf die Tat kein bestimmtes Strafgesetz unmittelbar	Anwendung,	so	wird	die	Tat	nach	dem	Gesetz	bestraft,	dessen	Grundgedanke	auf	sie am	besten	zutrifft'. 2	Strafgesetzbuch	für	das	Deutsche	Reich	(1871),	§2. 3	We	can	call	non-extended	or	literal	interpretation	an	interpretation	of	the	written	statute.	At	the time	of	the	introduction	of	this law,	there	was	a	question	about	whether	the	use	of	analogy	was really just	a	form	of	extended	interpretation. It	was	in	any	case	an	increasingly	popular idea	that existing	'pre-revolutionary'	laws	ought	to	be	interpreted	broadly,	according	to	the	spirit	of	the	new order (see, e.g. Huber, Verfassungsrecht des Grossdeutschen Reiches, 2nd ed. (Hamburg: Hanseatische	Verlagsanstalt,	1939)	p.	245.) 4 By 'application', here, we mean either the broadening of a pre-existing rule by removing a condition	or	the	creation	of	a	narrower	rule	meant	to	exist	alongside	the	previous	rule	(where	a condition	is	added)	(see	Joseph	Raz's	discussion	of	legal	analogy	in	'Law	and	Value	in	Adjudication', The	Authority of Law, 2nd ed. (Oxford:	Oxford	University Press, 2009) p. 204.	At the time	of the introduction of the APA, some commentators argued for the authorising of what was called Rechtsanalogie	('analogy	of	the	law'):	the	application	of	a	principle	underlying	the	legal	system	as	a whole	to	an	unregulated	case	which is	condemned	by	the 'sound	perception	of	the	people'.	The majority of commentators argued, however, that the Nazi criminal law ought only to license Gesetzesanalogie.	According	to	W.	Becker,	Gesetzesanalogie	is	only	used	when	a	direct	application 3 This outcome was a direct result of a shift in German legal thinking concerning the purpose of criminal law. Where the bygone liberal era had emphasised the need to protect the freedom of the individual against intrusion by others, the new order underscored	the	unmatched	importance	of	protecting	society	against	attack.	The	task	of Nazi criminal law, according to the ideology, did not include the safeguarding of the freedom	of	lawbreakers.	Instead,	its	purpose	lay	in	safeguarding	the	national	community by	combating those	who	supposedly	offended	against its interests	and	who	shirked the social	responsibilities	to	which	they	were	duty-bound.5 With this shift in emphasis followed the abandonment of the principle	nullum crimen, nulla	poena	sine	lege,	which	had	been	included	among	the	basic	protections	guaranteed by	the	Weimar	Constitution.6	According	to	Nazi	legal	theory,	observance	of	this	principle had	been	grounded,	in	part,	in	a	conception	of	the	importance	of	a	person's	being	able	to predict	with	accuracy	and	assurance	the	legal	consequences	of	her	actions.	The	problem, according	to	the	Nazi	view,	was	that	strict	observance	of	this	principle	would	sometimes require	that	those	who	had	endangered	the	national	community	or	who	had	shirked	their social	duties	not	be	punished.	To	give	the	principle	priority	would	thus	offend	against	the of	the	law	is	impossible.	As	he	describes	it,	'[i]t	constitutes	the	turning	away	from	a	purely	literal interpretation and permits the application of the fundamental underlying idea contained in a written statute to cases which in fact do not fall under its wording, but which, however, are analogous	to	cases	that	are	covered	by	laws	and	which	are	distinguished	from	these	cases	only	in irrelevant particulars' ('Die richterliche Rechtsschöpfung in der strafrechtlichen Praxis'	Deutsche Justiz 99 (1937), p. 457). As it does not affect our arguments here, we will not engage in this discussion.	For	further	information	on	this	distinction,	please	see	Ackermann,	Das	Analogieverbot im geltenden und künftigen Strafrecht, Series: Strafrechtliche Abhandlungen, ed. Aug. Schoetensack, Heft 348 (Breslau-Neukirch: Alfred Kurtze, 1934). See also Karl Siegert, 'Nullum poena sine lege: kritische Bemerkungen zu den Vorschlägen der amtlichen Strafrrechtskommission', Deutsches Strafrecht I (1934): pp. 376-86, 380; Karl Schäfer, 'Nulla Crimen	Sine	Poena',	Das	kommende	deutsche	Strafrecht:	Allgemeiner	Teil.	Bericht	über	die	Arbeit der amtlichen Strafrechtskommission. Ed. Franz Gürtner. 2nd ed. (Berlin: Verlag Franz Vahlen, 1935),	pp.	200-218,	204;	Roland	Freisler,	Schutz	des	Volkes	oder	des	Rechtsbrechers?	Fesselung	des Verbrechers	oder	des	Richters?	Deutsches	Strafrecht	(Sonderdruck),	Heft	1-2	(1935)	p.	9);	and	Karl Klug, 'Drei Grundprobleme des kommenden Strafrechts',	Zeitschrift der Akademie für Deutsches Recht	2	(1935),	pp.	98-102,	99). 5	See,	e.g.	Erich	Schinnerer,	German	Law	and	Legislation	(Berlin:	Terramare	Office,	1938),	pp.	1819.	See	also	Freisler,	Schutz	des	Volkes,	p.	3. 6 Article 116. A version of this principle was also included in the Penal Code of 1871 (Reichsstrafgesetzbuch,	§2,	par.	1): 'An	act	may	be	visited	with	a	penalty	only if the	penalty	was determined	by	law	prior	to	the	commission	of	the	act'.	According	to	K.	Klee,	the	idea	that	'what	is not forbidden is allowed' was a product of a 'liberal epoch', which did not correspond to the National	Socialist	conception	of	law	('Straf	ohne	geschriebenes	Gesetz',	Deutsche	Juristen-Zeitung. 39.	1	(1934):	pp.	639-643,	639. 4 National Socialist conception of 'material justice' (materielle Gerechtigkeit), which demanded	that	all	acts	contrary	to	the interests	of	or	duties	to	the	national	community be	punished,	whether	covered	by	a	pre-existing	statute	or	not.	The	common	conclusion was	therefore	the	following:	to	the	degree	that	the	function	of	criminal	law	finds	its	core meaning in the implementation of material justice, the principle nullum crimen, nulla poena	sine	lege	has	no	priority	in	the	regulation	of	criminal	legal	processes.7 Given the importance of nullum crimen, nulla poena sine lege in the German legal tradition,	supporters	of	the	APA	anticipated	that	they	would	run	into	normative	criticism. They expected, often implicitly, that the APA	would face criticism to the effect that it undermined	the	predictability	of	the	penal	law	such	that	the	normativity	of	the	principle that	the	law	ought	to	be	predictable	transmitted	and	gave	rise	to	the	legal	ought	that	the law	ought	not	to	contain	the	analogy	legislation.8	As	it	turns	out,	contemporary	and	later criticism of the 1935 amendment did in fact centre on a perceived threat to the law's predictability.9 Predictability has of course been treated as a normative concept in traditional legal thought	–	as	a feature that the law	ought to	have. Such legal 'oughts'	as	predictability, 7	Many	German	commentators	were	eager	to	point	out	that	this	principle	had	no	root in	Roman law;	rather, it	could	be	traced	to	the	Enlightenment	era	and	was	introduced	into	German	law	via the	influence	of	French	revolutionary	philosophy	(see	Lawrence	Preuss,	'Punishment	by	Analogy	in National Socialist	Penal Law', Journal	of	Criminal Law	and	Criminology 26.6 (1936):	pp.	847-856, 849-50;	Klee,	'Strafe	ohne	geschriebenes	Gesetz',	pp.	639-41).	A	common	strategy	for	dealing	with criticism	of	the	departure	from	'nulla	poena	sine lege' involved	arguing	that,	due	to	the	National Socialist revolution in legal thinking, the	words in	§2	of the	old	Criminal	Code	had	changed	their meaning and that the old meaning no longer applied (see, e.g. Hubertus Bung, 'Legalität und Analogie	im	Strafrecht',	Jugend	und	Recht	9.10	(1935):	pp.	228-232,	229).	In	addition,	at	the	heart of the NS 'revolution' was a newfound prioritisation of the interests of the community (which supplied	the	content	of 'true' justice	and	genuine	Recht)	over	those	of	the individual,	and it	was this	conception	in	particular	which	provided	support	for	the	shift	away	from	an	understanding	of the	judge	as	strictly	bound	to	the	written	statute.	See,	e.g.	Hans	Frank,	'Die	nationalsozialistische Revolution	im	Recht',	Zeitschrift	der	Akademie	für	Deutsches	Recht	2.7	(1935):	pp.	489-92,	492.	On the	implications	of	this	shift	for	the	concept	of	legal	security	and	the	legal	status	of	the	individual, see, e.g. Scheuner, 'Die Rechtsstellung der Personlichkeit in der Gemeinschaft' Deutsches Verwaltungsrecht, ed.	Hans	Frank (München: Zentralverlag	der	NSDAP, Franz	Eher	Nachf., 1937) pp.	82-98,	95-96. 8	See,	e.g.	Schäfer, 'Nullum	crimen	sine	poena';	Ackerman,	Das	Analogieverbot im	geltenden	und zukünftigen	Strafrecht,	esp.	pp.	37-44;	Freisler,	Schutz	des	Volkes,	esp.	pp.	13-16;	Hermann	Göring, 'Die	Rechtssicherheit	als	Grundlage	der	Volksgemeinschaft'	Schriften	der	Akademie	für	Deutsches Recht,	ed.	Hans	Frank	(Hamburg:	Hanseatische	Verlagsanstalt,	1935). 9	See	n.	11	for	examples. 5 action-guidingness, consistency, and stability perform two essential functions.10 First, they	pick	out	aspects	of	a legal	system	that	are	essential for	that	system	to	be ideal. (A legal system is ideal in virtue of having the properties it ought to have.) Second, legal oughts	function	as	normative	guidance	for	those	who	create,	administer,	and	implement the	law	(in	short:	the	lawmakers).	In	creating	the	law,	the	lawmaker	ought	to	be	directed by	legal	oughts	so	that	a	legal	system	ends	up	having	the	properties	it	ought	to	have. It is	common	practice	to	think	that	legal	oughts	permit	'normative	transmissions',	as	we will put it. That is, legal oughts may transmit or extend their normativity (i.e. their 'oughtness') to particular	measures or aspects of a legal system. For example, suppose that	the	laws	of	a	particular	legal	system	ought	to	be	knowable	to	those	who	are	subject to	them.	Call	this	the	'knowability	ought'.	Suppose	further	that	there	is	a	legal	system	in which legal regulations are	not	publicised. Surely, in such	a system, the law seems less than	knowable. It thus	seems	plausible to	suppose	that in this	situation	the	knowability ought	transmits	its	oughtness	to	publicising	laws.	That	is,	the	law	of	an	ideal	legal	system will be one that is publicised; plus, the lawmaker ought to ensure that laws are	made public. In just the same way, it is tempting to suppose that the normativity of the law's predictability transmits swiftly and unproblematically to a prohibition of analogy legislation such as that introduced by the Nazis in 1935.11 However, in this paper we argue that we should resist this temptation. In fact, the relation between the law's predictability	and	the	Nazi	use	of	analogy	is	unsuitable	for	inferring	unconditionally	that	a legal	system	ought	not	to	contain	a	Nazi	type	of	analogy	legislation.	Instead,	we	suggest that	such	a	transition	is	correct	only	for	legal	systems	in	which	(i)	a	Nazi	type	of	analogy legislation	is	part	of	a	necessary	or	non-defeasible	explanation	of	why	there	is	too	low	a 10 Such principles are often associated with certain rather minimal conceptions of the state governed	by	the	rule	of	law.	See,	e.g.	Lon	L.	Fuller's	The	Morality	of	Law,	2nd	ed.	(New	Haven:	Yale University Press, 1969) pp. 33-94. See also Joseph Raz, 'The Rule of Law and its Virtue', The Authority	of	Law,	2nd	ed.	(Oxford:	Oxford	University	Press,	2009)	pp.	210-229. 11	For	versions	of	this	way	of	thinking,	see,	e.g.	Gerland, 'Einige	Anmerkungen	zu	der	Denkschrift des	Preussischen	Justizministers',	Deutsche	Justiz	(1934):	pp.	224-28;	Anon.	'The	Use	of	Analogy	in Criminal Law', Columbia Law Review 47.4 (1947): pp. 613-629; Jerome Hall, 'Nulla Poena Sine Lege',	The	Yale	Law	Journal	47.2	(1937):	pp.	165-93;	C.	H.	McIlwain,	'Government	by	Law',	Foreign Affairs 14.2 (1936): pp. 185-198; 'Advisory Opinion: Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City', Publications of the Permanent Court of International	Justice,	Series	A/B	–	No.	65. 6 degree	of	predictability;	and (ii) the	only	way the lawmaker	can raise	predictability	qua lawmaker	is	to	abandon	the	Nazi	type	of	analogy	legislation. Our	argument in	this	paper	proceeds	as follows:	Section	1	considers	a	theory	of	correct normative	transmission.	In	particular,	we	will	argue	that	for	a	legal	ought	to	transmit its normativity	to	an	aspect	of	a	legal	system,	it	does	not	suffice	that	the	aspect	in	question implies, causes,	or contributes to	an infringement	of the legal	ought. Instead,	we	argue that	such	a	transmission	takes	place	if	that	aspect	explains	non-defeasibly	the	violation	of the legal ought in question. Section 2 then outlines a preliminary model of the law's predictability and investigates whether the Nazi type of analogy legislation affects the law's	predictability.	We	will	argue	that	the	relation	between	the	Nazi	use	of	analogy	and the	infringement	of	a	predictability	ought	is	logically	too	weak	unconditionally	to	transmit its	normativity	to	a	prohibition	on	a	Nazi	type	of	analogy.	Section	3	then	explores	further possibilities	of	normatively	criticising	the	Nazi	use	of	analogy. (1)	Normative	transmissions	of	legal	oughts In our introduction to this paper, we said that 'legal oughts' perform two essential functions:	(i)	they	pick	out	properties	that	are	essential	for	a	legal	system	to	be	ideal;	and (ii)	by	transmitting	their	normativity	to	particular	measures	and	aspects	of	a	legal	system, they	guide	the	lawmaker	in	how	to	make	adjustments	to	the	law. Given the first function, it is beyond doubt that the entire Nazi legal system – and, in particular,	the	system	of	criminal	law	enacted	in	Germany	between	1933-1945	(in	short: the	Nazi	penal	system,	or	'NPS')	–	represents	a	prime	example	of	an	excessively	non-ideal legal system.12 This can be made clear by pointing to the degree to which the NPS infringed upon the core normative principles of ideal law. By issuing unclear, indeterminate, secret, and retroactive laws13, the NPS (i) eradicated legal security and certainty;	(ii)	disabled	and	obstructed	the	action-guiding	function	of	the	law;	(iii)	allowed 12	At	times	in	what	follows,	we	will	refer	to	the	'Nazi	legal	system'	or	to	the	principles	and	features of	'Nazi	law'.	In	every	case,	though,	our	focus	is	more	strictly	the	Nazi	penal	law. 13 For accounts	of these	aspects	of	Nazi governance, see, e.g. Ian	Kershaw,	Hitler, the	Germans, and	the	Final	Solution	(New	Haven:	Yale	University	Press,	2008),	esp.	chs	1-4;	Michael	Stolleis,	The Law	Under	the	Swastika:	Studies	on	Legal	History	in	Nazi	Germany,	trans.	Thomas	Dunlop	(Chicago: University	of	Chicago	Press,	1998),	esp.	pp.	5-22;	Bernd	Rüthers,	Die	Unbegrenzte	Auslegung:	Zum Wandel der Privatrechtsordnung im Nationalsozialismus (Tübingen: J.C.B. Mohr (Paul Siebeck), 1968), esp. ch. 3. See also Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship,	trans.	E.	A.	Shils	et	al.	(New	York:	Oxford	University	Press,	1941)	esp.	ch.	1. 7 for judicial and state arbitrariness; (iv) blocked the epistemic access to legal norms necessary for making legal norms knowable; (v) licensed irrational and incorrect legal reasoning,	etc.	There	is	thus	an	overwhelming	set	of	facts	that	make	it	the	case	that	the NPS	was	non-ideal. Given	the	second	function	of	legal	oughts,	the	interesting	question	becomes	this:	in	what ways	does	the	normativity	of	the infringed legal	oughts	transmit	to	aspects	of	the	NPS? Put	differently,	what,	concretely,	should	lawmakers	at	the	time	have	done	to	make	their legal system	more ideal?	Which of these facts should have been changed to	make the system	more	ideal? Before	we	answer	this,	we	need	to	discuss	and	clarify	two	things:	(i)	we	need	to	establish when	precisely	the	normativity	of	a	particular	legal	ought	transmits	to	other	aspects	of	a legal	system;	and	(ii)	we	need	to	elucidate	whether	or	not	the	Nazis'	analogy legislation relates	to	the	legal	ought	of	predictability	such	that	it	can	or	cannot	be	said	that	a	penal legal	system	ought	not	to	contain	a	Nazi	type	of	analogy	legislation.	Let	us	turn	to	the	first of	these	tasks. Suppose	the	law	of	a	legal	system	ought	to	have	a	certain	property.	In	what	ways	must	a legal	measure	or	aspect	of	that	legal	system	relate	to	this	legal	ought	for	it	to	transmit	its normativity? For example, suppose the law ought to be action-guiding. Call this the 'guiding	ought'.	In	what	ways	must	a	given	aspect	of	a	legal	system	relate	to	the	guiding ought	for	it	to	be	the	case	that	the	law	ought	(or	ought	not)	to	have	that	aspect? A	first	plausible	answer	to	this	question	might	be	this:	suppose,	for	the	sake	of	argument, that the feature	or	aspect in	question is the	existence	of secret laws,	and	suppose that the existence of this feature implies, causes, or contributes to the infringement of the guiding	ought.	Then,	the	law	ought	not	to	have	secret	laws.	If	this	is	sound,	the	following inference	is	correct: A	legal	system	ought	to	be	action-guiding; (1a) and the	fact	that	a	legal	system	contains	secret	laws	(a) implies,	(b)	causes,	or	(c)	contributes	to	an infringement	of	the	ought	expressed	in	(1a). (1b) So, 8 A	legal	system	ought	not	to	have	secret	laws. (1c) However,	we	argue	that this inference is	not	correct.	Though	the	disjunction	of (a), (b), and (c) in (1b) ranges	over	a	broad	variety	of relations	between the	existence	of secret laws	and	the	infringement	of	(1a),	(1b)	is	logically	too	weak	to	transmit	the	obligation	of (1a)	to	(1c). To	see	why,	let	us	consider	a	parallel	example.	Assume	that	a	legal	system	ought	to	issue legal requirements that	can	be jointly	satisfied.	That is, it	ought	not to	be	the	case	that the	law	requires	you	to	X	and,	at	the	same	time,	requires	you	to	not-X.	Call	this	the	'jointsatisfaction	ought'.	Suppose	also that,	when	applied to the	concrete	circumstances, the law	of	a	particular	legal	system	imposes	upon	you	two	conflicting	legal	requirements: it requires	both	that	you	fulfil	the	terms	of	a	contract	between	you	and	your	neighbour	and, at the	same	time,	that	you	refrain from	fulfilling	these	terms.	Now	it	would	seem	to	be true that both requirements individually (a) imply, (b) cause, and (c) contribute to the infringement	of the joint-satisfaction	ought. If	we	read 'implies'	as	material implication, then the requirement to fulfil the contract implies the infringement of the jointsatisfaction ought just in virtue of the fact that it infringes the joint-satisfaction ought. The	same	holds	true	for	the	requirement	not	to	fulfil	the	contract.14	If	we	are	to	conceive of	causality	as	a	counterfactual relationship, then it	also follows	that	both	requirements individually	cause	the	infringement	of	the joint-satisfaction	ought: if,	ceteris	paribus,	the legal system in question had not issued the requirement to fulfil the contract, there would	have	been	no	transgression	of	the	joint-satisfaction	ought.	Also,	if,	ceteris	paribus, the	law	had	not	issued	the	requirement	to	refrain	from	fulfilling	the	contract,	there	would be no infringement of the joint-satisfaction condition. These just stated counterfactual conditionals	surely	also	show	that	both	the	requirement	to	fulfil	and	the	requirement	not to	fulfil	the	terms	of	the	contract	individually	contribute	to	the	infringement	of	the	jointsatisfaction	ought	in	the	legal	system	in	question. In	brief,	the	existence	of	a	requirement	to	fulfil	the	terms	of	the	contract	in	question	can be	said	to	imply,	cause	and	contribute	to	the	infringement	of	the	joint-satisfaction	ought. 14 Suppose 'if p, q' represents a material implication. Then this implication comes out as true whenever	q is true.	Hence, either requirement implies the infringement	of the joint-satisfaction ought	materially	simply	because	it	holds	true	that	it	infringes	the	joint-satisfaction	ought. 9 The	same	holds for the	requirement	to	refrain from	fulfilling	the	terms.	Does	this imply that the legal system in	question	ought	not to issue	either requirement?	That is,	ought lawmakers	in	that	legal	system	to	abandon	both	legal	requirements?	This	would	surely	be an	absurd	result.	Abandoning	one	of these	two	requirements	would,	ceteris	paribus,	be enough	to	redeem	joint	satisfiability.	But if	we	agree	with	this, then	we	must	reject	the straightforward inference sketched above concerning the example of secret laws and action-guidingness.	In	particular,	we	must	conclude	that	the	disjunction	of	(a),	(b)	and	(c) in	(1b)	is	too	weak	to	transmit	the	normativity	of	(1a)	to	(1c). The incorrectness	of	this inference	already	proves	significant	for	a	normative	evaluation of	the	Nazis'	APA.	For	we	cannot	validly	argue	that	the	Nazis'	APA	ought	not	to	have	been part of the	Nazi legal system	on the basis of the fact that the APA implied, caused, or contributed	to	an	infringement	of	a	legal	ought.	These	relations	are	logically	too	weak	to allow	us	to	infer	that	the	APA	ought	not	to	have	been	a	part	of	the	Nazi	legal	system. To infer that a legal system ought not to contain a certain feature from a conjunction containing	a	general	legal	ought	of	the	sort	stated	in	(1a),	we	need	to	replace	(1b)	with	a premise	that	is	logically	stronger	than	(1b).	Consider	again	the	example	of	a	legal	system that	both	requires	you	to	fulfil	the	terms	of	a	given	contract	and	requires	you	not	to	fulfil them.	Although	both legal	requirements individually imply,	cause,	and	contribute	to	the infringement of the joint-satisfiability ought, there is a context in which either requirement	fails	to	explain	the	infringement.	This	is	intuitive:	not	every	legal	system	that issues	a	requirement	to	fulfil	the	terms	of	one's	contracts	necessarily	infringes	the jointsatisfiability	ought.	The	infringement	stems	from	simultaneously	requiring	that	one	fulfil and	that	one	not	fulfil	the	terms	of	one's	contract. Given	these	observations,	a logically	stronger	middle	premise	might	therefore	appeal	to the idea of a legal feature's ability to explain the infringement of a legal ought in all possible	contexts.	As	we	shall	want	to	put	it,	in	a	correct	inference	linking	a	legal	ought	to the conclusion that a legal system ought not to contain a certain feature, the middle premise might therefore refer to the feature's role in "non-defeasibly" explaining the infringement	of	the	legal	ought	in	question. In this paper, we use 'non-defeasible explanation' as a primitive relation. By 'nondefeasible'	we	mean	that	if	in	a	specific	context	some	fact	e	explains	non-defeasibly	some other	fact	f,	then	it	holds	for	all	contexts	c	that	if	e	obtains	in	c,	e	explains	f.	Put	succinctly, 10 the	explanation	obtains	in	all	possible	contexts	in	which	e	obtains.	'Adding'	something	to a context where a non-defeasible explanation obtains cannot cancel or defeat the explanation. In this sense, non-defeasible explanations are thus not restricted to a particular	context. Here is an example of a non-defeasible explanation. Suppose it is true in the actual context	that	(i)	John	has	one	sibling	and	(ii)	Mary	has	no	siblings.	Then,	the	conjunction	of (i) and (ii) does	not	only explain in the actual context	why John	has	more siblings than Mary. It	explains this in	all in contexts in	which (i)	and (ii)	obtain.	There	could	not	be	a context in	which (i)	and	(ii)	obtain,	and	yet the	conjunction	of (i)	and	(ii) fails to	explain why	John	has	more	siblings	than	Mary.	Thus,	conjoining	(i)	and	(ii)	forms	a	non-defeasible explanation	for	why	John	has	more	siblings	than	Mary.15 The	relation	of	non-defeasible	explanation	can	bridge	the	normative	gap	between	a	legal ought	and	the	conclusion	that	an	ideal	legal	system	would	lack	a	certain	feature	because of its logical strength.	We	assume	that if, for	example, the	existence	of	secret laws in	a given legal system constitutes a non-defeasible explanation as to why the normative principle of action-guidingness is infringed, then this implies the truth of the strict 15 It is	of	critical importance	not to try to	reduce	them	to	expressions	of	alethic	modal logic.	For example,	suppose	again	that	some	fact	e	explains	non-defeasibly	some	other	fact	f.	Call	this	nondefeasible	explanation	'E'.	E	cannot	be	analysed	in	terms	of	alethic	modality,	such	as	the	following statements:	necessarily,	e	explains	f	(A);	necessarily,	if	e,	then	e	explains	f	(B);	necessarily,	if	e,	then f	(C). Consider	A:	E	does	not	entail	A	because	explanations	are	factive	relations.	That	is,	at	w,	e	explains	f only if, at	w, e and f obtain. So, if E entailed	A, then E could hold true only if e and f obtain necessarily.	Yet	this	does	not	hold	for	all	non-defeasible	explanations,	as	our	example	shows:	the fact	that	John	has	one	sibling	and	Mary	none	explains	non-defeasibly	why	John	has	more	siblings than	Mary.	But	this	implies	neither	that	necessarily	John	has	one	sibling	and	Mary	none,	nor	that John	necessarily	has	one	sibling.	Hence,	E	does	not	imply	A. However,	unlike	A,	E	does	imply	B.	This	is	almost	trivial.	For	example,	if	the	fact	that	John	has	one sibling and Mary none explains non-defeasibly why John has more siblings than Mary, then, necessarily,	if	John	has	one	sibling	and	Mary	has	none,	this	will	explain	why	John	has	more	siblings than	Mary. Also,	E	implies	C.	Explanations	are	factive	relations.	So	if	John	having	one	sibling	and	Mary	having none	explains	non-defeasibly	why	John	has	more	siblings	than	Mary,	then,	necessarily,	if	John	has one	sibling	and	Mary	none,	then	John	has	more	siblings	than	Mary. But	even	though	E implies	B	and	C,	we	can	reduce	neither	E to	B	nor	E to	C.	For	neither	B	nor	C strictly	entails	E.	It	is	simple	to	show	why.	B	and	C	state	strict	conditionals.	So,	by	replacing	e	with	a necessary falsehood,	both	B and	C	will turn	out to	be true.	However, if	e necessarily explains f, replacing e with something impossible will not guarantee the correctness of the explanation relation. So, for a non-defeasible explanation to be correct, its explanans	must obtain in some possible contexts. In sum, though non-defeasible explanations come with some modal commitments,	they	cannot	be	fully	analysed	in	terms	of	modal	necessity. 11 conditional that necessarily, if secret laws exist, then the legal ought of actionguidingness	is	infringed.	That	is,	there	is	no	situation	in	which	secret	laws	obtain	and	the principle	is	not	infringed.	Consequently,	what	ought	to	be	the	case	can	only	be	the	case	in the	absence	of	secret	laws.	So,	ensuring	the	absence	of	secret	laws	is	a	necessary	means of bringing about what ought to be the case. An ideal legal system is possible only without	secret laws.	This licences	an inference	that	a legal system	ought	not to	contain secret	laws.16 In	summery,	we	assume	that	the	normativity	of	a	legal	ought	transmits	via	non-defeasible explanations. That is, if the law of a legal system ought to have a certain aspect and something,	say	F,	explains	non-defeasibly	why	the	law	is	not	entirely	the	way	it	ought	to be, then the law of a legal system ought not to contain F. If, however, F only implies, causes,	or	contributes	to	the	infringement	of	a	legal	ought,	this	does	not	imply	necessarily that	the	legal	system	ought	not	to	contain	F. (2)	The	APA	and	the	ought	of	predictability With	this	technical	analysis	in	hand,	we	are	ready	to	look	more	closely	at	the	idea	that	the APA related to the	predictability ought in such a	way that the	normativity	of the latter transmits to the former's prohibition. But before	we can explore this idea,	we	need to render	more	precise	what	the	predictability	of	the	law	consists	in. It is generally accepted that the law ought to be predictable.17 That is, an ideal legal system	will	have	the	property	of	being	predictable.18	It	seems	evident	why	predictability	is normatively	significant.	First,	primary	predictability (i.e.	one's	ability	to	predict	what	the law	requires	of	oneself)	will	be	significant	for	a	correct	guidance	of	the	law. In	order	for the law to	guide	a	person towards the fulfilment	of the law,	one	must	be	able to form correct views as to what the law requires. Second, secondary predictability (i.e. one's ability to predict what the law requires of others) will be significant for the correct 16	We	claim	that this is true, it	must	be	emphasized,	only	on the	condition that the	existence	of secret	laws	constitutes	a	non-defeasible	explanation	of	why	a	legal	system	is	not	as	it	fully	ought	to be. 17	Compare, for	example,	Fuller,	The	Morality	of	Law, ch.	2;	Scalia, 'The	Rule	of	Law	as	a	Law	of Rules',	University	of	Chicago	Law	Review	56	(1989)	pp.	1175-81,	1179. 18	To	be	sure,	predictability	will	not	be	sufficient	for	a	legal	system	to	be	ideal.	A	drastic	example	to support	this	point	is	the	following.	Suppose	a	society	has	no	legal	provisions.	Suppose	too	that	this is	a	well-known	fact.	That	is,	within	this	society,	the	law	requires	nothing	of	anyone.	Presumably,	it will	be	very	easy	to	predict	what	the	law	is. 12 application of the law by legal officials. A judge can apply the law appropriately (i.e. impose a sentence only if a violation against a legal requirement	was committed,	etc.) only	if	she	can	form	correct	views	about	what	the	law	requires	of	others. But	what	does	predictability	of the law	consist in? In the following,	we	will concentrate exclusively	on	primary	predictability. We suppose that to say that the law ought to be predictable is just a shorthand formulation for saying that the law ought to have a certain or high-enough grade of predictability. What determines the grade of predictability? Roughly, we argue that it consists	in	the	degree	to	which	an	individual,	with	average	information	about	the	law	and an	average	reasoning	ability,	can	reach	correct	conclusions	as	to	what	the	law	requires	of her.19 Let	us	assume	that legal requirements	govern	propositions.20	That is, suppose	someone asserts in	a certain context that	Peter is legally required to	obey the speed limit. Then, this	assertion	is	true	in	a	given	context	only	if	there	is	a	proposition	that	Peter	obeys	the speed	limit	whose	truth	is	required	by	the	law	in	that	context.	Furthermore,	the	law	does not simply require that Peter	obey the speed limit. Instead, it assigns the truth-making responsibility	to	Peter,	thus	requiring	of	Peter	that	he	obey	the	speed	limit.	Consequently, for	all	legal	subjects,	there	is	a	set	of	propositions	that	contains	all	and	only	propositions, the truth of which is required of that subject by the law.21 Let us call this a person's requirement	set. Of course, this set	will vary along two	dimensions: location and time.	Where there are different locations, there will be different laws22; where different times, also different laws23.	Furthermore,	even	by fixing time	and location, this set	will	be	different for	each particular legal subject, since the law demands different things of different individuals. 19	Another	way	of	defining	predictability	is	to	say	that	one	can	reach	correct	conclusions	about	the legal	consequences	(i.e.	punishment,	etc.)	of	one's	potential	actions. 20	In	fact,	we	know	of	no	argument	against	this	assumption. 21 Let	X be	a	placeholder for all possible types	of	acts and	omissions.	Let	S be	a	placeholder for individuals.	Furthermore,	assume	that	S	and	X	are	such	that	there	is	a	correct	syntax	by	which	'S Xs'	forms	a	proposition.	'S	Xs'	thus	represents	a	generic	proposition	expressing	an	individual's	act or omission. The set of propositions that contains all and only propositions whose truths are required	of	the	legal	subject	by	the	law	will	have	the	form	'S	Xs'. 22	Compare,	for	example,	the	laws	of	Norway	and	Saudi	Arabia. 23	Compare	the	example	of	the	German	laws	in	effect	in	1871	and	1940. 13 Legal	requirements	usually	vary	with	a	person's	age,	job,	personal	history,	etc.	A	member of parliament, for example, is subject to a different set of legal obligations than is a physicist.	A	mother	or	a father is subject to	a	different	set	of legal	obligations than is	a person	with	no	dependents. Given	this	characterisation,	we	can	begin	to	define	the	grade	of	the law's	predictability. As	we	wish	to	attach	one	general	grade	of	predictability	to	a	particular	legal	system,	and not one individual grade for each person, we will first need to define a hypothetical reference	person.	The	degree	to	which	this	reference	person	can	predict	the	law	will	then represent the law's general predictability. Two features	of our reference	person	will be crucial: first, her information or data about the law; second, her ability to reason correctly.	For	simplicity,	let	us	assume	that	she	is	equipped	with	an	average	or	reasonable knowledge	about the law.	We	do	not	wish to	define 'average'	or 'reasonable'	here,	yet we assume that her legal knowledge contains some legally relevant concepts (e.g. 'murder',	'judge',	'sentence',	etc.).	Also,	she	has	some	information	concerning	the	written statutes	of	the	law,	legal	procedures,	court-rulings,	etc.24	In	addition,	she	is	equipped	with an	average	reasoning	ability.	That	is,	she	has	an	average	ability	to	make	correct	inferences based	on	her	existing	set	of	beliefs. Let	us	now	assume,	hypothetically,	that	our	reference	person	(call	her	RP)	is	asked	what the	law	requires	of	her.	Utilising	her	information	about	the	law	and	her	ability	to	reason correctly,	she	writes	a	list	of	all	and	only	propositions	that	she	concludes	to	be	required	of her by the law. This list, we imagine, will include propositions like 'RP refrains from throwing stones	at	animals'; 'RP	drives	on the right-hand side	of the road'; 'RP refrains from	wearing	hats	on	Sundays'.	There	are	three	significant	possibilities	as	to	how	a	given proposition	on	this	list	relates	to	her	requirement	set:	(i)	the	set	contains	the	proposition; (ii) the set does not contain the proposition, but the proposition does not contradict another	proposition	belonging	to	it;	(iii)	the	set	does	not	contain	the	proposition	and	this proposition	contradicts	a	proposition	belonging	to	it. Given these three relations, the grade of the law's predictability will be a function of three	measures:	first,	positive	convergence	of	RP's	list	with	RP's	requirement	set	(that	is, 24	On	a	scale	of	knowing	things	about	the	law,	RP	is	somewhere	located	between	a	fully	ignorant person	regarding	the	law	and	a	trained	lawyer. 14 how	many	of the	propositions	on	RP's list	match	a	proposition in	her requirement	set). Second, it	will be a function of	negative, yet	non-contradicting convergence. That is to say,	it	will	be	a	function	of	how	many	propositions	on	RP's	list	fail	to	match	a	proposition in	her requirement	set,	but	which	also	do	not	contradict	a	proposition in the	set.	Third, the	grade	of	predictability	will	be	a	function	of	the	degree	of	negative,	yet	contradicting convergence.	That	is, it	will	be	a	function	of	the	number	of	propositions	on	RP's	list	that fail to match the propositions on the set of legally required propositions and that contradict a proposition in that set. The grade of the law's predictability	will correlate positively with positive convergence. It will correlate negatively with negative convergence.	In	addition,	negative,	yet	contradicting	convergence	will	arguably	be	a	more severe impediment to the law's predictability than negative, yet non-contradicting convergence.25 With this model of legal predictability at hand, we can now turn to the following question:	does the legal	predictability-ought transmit its	normativity to	a	prohibition	of the	APA? Recall that	our	argument in section	1	entails that such	a transmission	does	not	occur if the APA only implies, causes, or contributes to the fact that a legal system does not possess a high-enough grade of predictability. Instead, one instance in which such transmission	would	occur is if the	APA	explains	non-defeasibly	why	a legal system	does not	possess	a	high-enough	grade	of	predictability. Why	would	introducing	a	piece	of	legislation	like	the	APA	with	the	content	that	an	act	is punishable if it offends against (i) the fundamental idea of an existing law and (ii) the sound	perception	of	the	people	non-defeasibly	explain	a	low	and	inaccurate	level	of	the law's	predictability?	Does	inserting	the	clause	that	an	act	is	punishable	if	it	goes	against	(i) 25 Suppose	RP's list contained that	S carries	a	pencil, yet this	does	not,	we	assume, contradict	a proposition	of	her requirement	set.	Then, if	RP is	practically	guided	by	her	conclusion to	carry	a pencil, this will not do any legal harm. The law did not require her not to carry a pencil.	With regard to carrying pencils, the actual law is simply laxer than she had concluded. However, suppose	RP's	list	contains	that	she	steals	a	pencil.	This	is	not	in	her	requirement	set,	we	assume. Furthermore, it also contradicts a	proposition	of that set, namely that it is not the case that	RP steals	a	pencil.	If	RP	is	then	practically	guided	by	her	conclusion	to	steal	a	pencil,	she	will	infringe the law. RP thus potentially faces legal consequences. In this sense, reducing negative but contradicting convergence seems	more significant for predictability than reducing negative, yet non-contradictive	convergence. 15 and (ii) into a legal system necessarily diminish the match between RP's list and her requirement	set? RP, we said, is averagely educated about the law and possesses an average reasoning ability and degree of rationality. The law's predictability is a matter of positive and negative	convergence	of	her list	of legally	required	propositions	with	the	set	of	actually required propositions. So, the question is this: does introducing the APA into a legal system, ceteris paribus, explain non-defeasibly why RP no longer reaches accurate enough conclusions about what the law requires of her? Or more precisely: does the enactment of (i) and (ii) explain non-defeasibly why the ratio of positive to negative convergence	of	her	list	with	her	requirement	set	(as	defined	above)	is	too	low	to	ensure	a high-enough	degree	of	the	law's	predictability?26 Of course,	we could envisage	many situations in	which inserting (i) and (ii) into a legal system	would	diminish	the	match	between	RP's	hypothetical	requirement	list	and	the	set of	actual	requirements.	Suppose, for	example, that it is	commonly	known	within	a legal system that one is legally required to refrain from performing an action if it offends against	(i)	and	(ii),	yet	there	exists	no	public	or	shared	conception	of	(i)	and	(ii).	By	this	we mean that there is no publicly accessible information	with	which an averagely rational person,	such	as	RP,	could infer	reliably	which	types	of	acts	and	omissions	fall	under	the category	of	being	against	(i)	or	(ii).	This	is	likely	to	be	the	case	where,	for	instance,	neither the legal statute itself defines (i) or (ii), and nor are these concepts defined via, for example,	the	publicity	of	the	court-rulings	that	rely	on	an	act's	being	against	(i)	and	(ii). In	such	a	situation,	it	is	likely	that	introducing	(i)	and	(ii)	implies,	causes,	or	contributes	to an	increase	of	the	negative	and	a	decrease	of	the	positive	convergence	between	RP's	list and	her	requirement	set.	For	example,	it	is	possible	that	for	many	acts	and	omissions	RP will	face	equal	degrees	of	evidence	for	its	being	the	case	that	the	act	in	question	does	and does not offend against (i) and (ii). If RP is rational to the degree that she remains agnostic about any proposition	p for	which her evidence for	p equals her evidence for 26	Strictly	speaking,	if	negative	and	contradicting	convergence	of	RP's	list	with	her	requirement	list reduces the law's predictability to a higher degree than negative yet non-contradicting convergence, this	difference in 'weight'	would	need to	be incorporated into the ratio.	However, this	technicality	does	not	make	a	difference	to	our	broader	argument. 16 not-p27,	it	may	be	true	for	many	acts	and	omissions	that	RP	remains	agnostic	whether	or not the law requires of her that she perform that act or omission. If (i) and (ii) legally regulate	many	of	the	acts	and	omissions	RP	remains	agnostic	about,	her	agnosticism	will diminish	the	positive	convergence	between	her	list	of	requirements	and	the	set	of	actual legal	requirements. Here	is	a	further	example:	suppose	that	there	is	a	public	or	shared	conception	of	(i)	and (ii), and that RP possesses this conception. However, suppose also that legal officials employ	a	different	conception	of	(i)	and	(ii)	in	their	legal	reasoning.	Consequently,	people like	RP	and	legal	officials	will	diverge	in	their judgement	as	to	what	the	law	requires.	As the	judgement	of	legal	officials,	via	their	legal	rulings,	usually	affects	what	the	law	actually requires (via, for example, the setting of a precedent, etc.), this divergence	will have a negative	effect	on	the	law's	predictability. It	will	diminish	positive	and	increase	negative convergence	of	RP's	list	with	her	requirement	set. Or	suppose	again	that	there	is	a	public	and	shared	conception	of	(i)	and	(ii).	However,	this time,	people	like	RP	and	legal	officials	share	this	conception,	yet	they	vary	extensively	in their	reasoning	ability.	That	is,	though	they	start	from	the	same	premises,	they	arrive	at different, or even contradicting conclusions about	what the law requires. Again, as the officials'	conclusions	as	to	what	the	law	requires	determines	partly	what	the	law	actually requires, the discrepancy in reasoning ability makes the law less predictable. It will decrease positive and enlarge negative convergence between RP's list and her requirement	set. So, surely, there are	many situations in	which using (i) and (ii) as standards of legality implies, causes, or contributes to the lowering of the predictability of the law. Yet the question we are asking is: does tethering legal outcomes to (i) and (ii) explain nondefeasibly	a	low	grade	of	the	law's	predictably? In Section 1, we defined non-defeasible explanation. We said that if one thing nondefeasibly	explains	another,	then it	holds	true	that	necessarily, if	the	former	obtains,	so does	the latter.	Consequently, if there is	a	possible	situation in	which	the former	holds, yet the latter does not obtain, it cannot be the case that the former non-defeasibly explains	the	latter.	In	relation	to	(i)	and	(ii),	that	is	to	say,	if	there	is	a	possible	situation	in 27	We	assume	that	this	response	is	rationally	required	of	RP. 17 which the	APA is consistent	with a	high-enough	grade	of legal predictability, then legal provisions	like	the	APA	cannot	explain	non-defeasibly	why	the	law	is	not	predictable. Consequently, in order to show that the APA does not explain non-defeasibly the infringement	of	the	law's	predictability,	we	need	to	find	one	possible	situation	in	which	a penal code threatens to	punish acts and	omission if they go	against (i) and (ii), yet the introduction of this law does not diminish the convergence of RP's list with her requirement	set. Such a situation is surely conceivable. For example, suppose that there is a publicly shared	conception	of	(i)	and	(ii).	This	may	be	established	through	supplementing	the	legal statute with a definition of (i) and (ii) and by publicly announcing and discussing it. Suppose further that an averagely informed and rational person such as RP possesses enough	conceptual	competence	correctly	to	apply	the	concepts	involved	in	(i)	and	(ii)	to individual types of acts and omissions. Furthermore, RP's level of information and conceptual competence is shared by legal officials. Then, it seems conceivable that employing (i)	and (ii) in	a legislative	context	will	not	necessarily	pose	an impediment to the	predictability	of the law.	With regard to the	application	of (i) and (ii), legal	officials and RP will reach matching conclusions as to whether an act or omission is legally required. For	example, imagine that	one fundamental	and	overriding idea	of	a law in	a	particular legal	system	is	to	protect	children	from	grave	harm.	Let	us	suppose	further	that	this	idea is	grounded	in	'the	sound	perception	of	the	people'	in	a	certain	context.	Assume	that	RP's definition of 'children' equals that held by the majority of legal officials. Suppose the same	holds for	RP's and the	officials' conception	of 'grave	harm'. In	addition, they	also share an equal ability to reason correctly and to apply concepts. In such a situation, it seems plausible that both RP and officials will reliably pick out the same acts and omissions as offending against (i) and (ii). Consequently, regarding 'children and grave harm',	their	views	as	to	what	the	law	requires	will	converge. It is	certainly	conceivable	that	the	same	will	hold	not	only	for	harming	children	but	also for	other types	of	acts	and	omissions that	are	grounded in the	sound	perception	of the people	and the fundamental ideal	of the law.	Consequently, this suggests that the	APA alone does not represent a non-defeasible explanation of the infringement of the 18 normative principle that the law	ought to be predictable. Legal provisions like the	APA are,	in	principle,	consistent	with	ensuring	that	the	law	remains	predictable	for	the	public. (3)	Constitutive	detachment	and	normative	guidance So far, we have refuted the claim that an APA type of legislation can explain nondefeasibly	the	infringement	of	the	normative	legal	principle	that	the	law	ought	to	have	a certain	degree	of	predictability.	Whilst	it	seems	plausible	to	think	that,	in	many	contexts, an	APA	type	of	legislation	is	likely	to	imply,	cause	or	contribute	to	the	diminishment	of	the law's predictability, we can conceive of a context in which the APA does not diminish predictably.	Thus,	a	legal	system	can,	in	principle,	contain	an	APA	type	of	legislation	and fulfil	the	normative	claim	that	the	law	ought	to	be	predictable. This	result	leaves	those	who	want	to	criticise	the	APA	with	the	following	dilemma:	though for some contexts c it is relatively easy to establish that the APA implies, causes, or contributes to the diminishment of the law's predictability, this does not licence the conclusion	that	the law	ought	not	to	contain	an	APA	type	of legislation.	So	how	can	we then normatively criticise the APA? In this section, we will try to develop a concise normative	criticism	of	the	APA. In principle, there are two possibilities. So far, we have shown that the predictability ought	does	not	transmit	its	normativity	to	the	prohibition	of	the	APA,	as	the	APA	does	not explain non-defeasibly the diminishment of the law's predictability. This does not exclude,	of	course,	the	possibility	that	the	APA	might	relate	to	the	predictability	ought	in such a way that the normative transmission occurs. As we argued in section 1, this relation	must	be logically	stronger than	the	relation	of	(material) implication,	causation, or contribution.	Otherwise, the transmission is not guaranteed.	Moreover, this relation must	be	logically	weaker	than	the	relation	of	non-defeasible	explanation,	or	else	it	is	not applicable	to	the	relation	between	the	APA	and	the	predictability	ought.	However,	we	do not	know	of	any	relation	that	fits	this	bill.	So,	this	is	not	a	plausible	argumentative	route	– or	so	it	seems	to	us. Nevertheless,	we think that there is a second possibility	when it comes to normatively criticising the APA. Though on its own the APA does not explain non-defeasibly an infringement	of	the	predictability	ought,	the	APA	may	be	a	part	of	a	set	of	features	that,	if considered	together,	non-defeasibly	explains	the	predictability	ought.	In	other	words,	we 19 might	suggest	that	the	APA,	in	conjunction	with	other	features	of	a	legal	system,	explains non-defeasibly	why	a	legal	system	lacks	a	certain	degree	of	predictability. Which	set	of	features	that	contains	the	APA	could	constitute	an	infringement	of	the	law's predictability?	In	fact,	we	have	already	identified	a	set	of	those	features	indirectly.	Recall our argument concerning the conditions	under	which the	APA	would	not infringe	upon the law's predictability. We argued that a legal system containing the APA does not necessarily	infringe	upon	predictability	if	it	is	embedded	in	a	context	in	which (a) there	is	a	publicly	shared	conception	of	the	fundamental	ideas	of	the	existing laws	and	the	sound	perception	of	the	people; (b) this	public	conception	is	also	shared	by	legal	officials;	and (c) legal officials and the public share an equal reasoning ability and an equal ability	for	concept	application. In	the	following,	we	will	refer	to	(a),	(b),	and	(c)	jointly	as	the	'shared	conception'.	That	is, if	the	shared	conception is	present	in	a	legal	system,	then	implementing	the	APA	in	that legal	system	does	not	necessarily	lead	to	a	violation	of	the	predictability	principle. In addition, another relation between the APA, the shared conception, and the predictability ought seems plausible. The occurrence of the shared conception seems necessary to ensure that a legal system containing the	APA	does	not infringe	upon the predictability	principle.	That is, suppose	a legal	system issues legal requirements	on	the basis	of	(i)	the	fundamental	ideas	of	the	law	and	(ii)	the	sound	perception	of	the	people. Suppose further that the legal system is such that those who create, administer, and implement	the	law	do	not	share	a	conception	of	the	fundamental	ideas	of	the	law	or	the sound	perception	of	the	people	with	the	public	or	those	subject	to	legal	requirements.	In such	a	legal	system,	the	ability	of	an	averagely	educated	person	to	predict	what	the	law requires	of	her	will	be	significantly	obstructed.	We	will	assume	that	this	obstruction	will reach a degree such that the system necessarily infringes the predictability ought. In other	words,	the	system	can	contain	the	APA	and	satisfy	the	predictability	ought	only if the	shared	conception	is	a	part	of	it.	Without	the	shared	conception,	the	legal	system	in question	cannot	contain	the	APA	and	still	be	fully	ideal. Moreover,	we	will assume that a legal system that contains the	APA	and	which lacks a shared conception violates the predictability principle in virtue of containing the APA 20 without	the	shared	conception.	That	is,	the	conjunction	of	the	APA	and	the	absence	of	the shared conception constitutes a non-defeasible explanation as to why a legal system violates	the	predictability	principle. In	every	legal	context	that	contains	(a)	the	APA,	and (b) no shared conception, (a) and (b) will explain why the degree of the law's predictability in that context is too low for it to satisfy the predictability principle. Consequently, the	conjunction	of (a)	and (b)	explains	non-defeasibly	an infringement	of the	law's	predictability. This	conclusion	is	normatively	significant.	Recall	our	conclusion	from	section	1:	if	the	law ought	to	have	a	certain	property	P,	and	some	aspect	of	a	legal	system,	say	I,	explains	nondefeasibly	the	infringement	of	this	normative	principle,	then	it	follows	that	the	law	ought not to have I. Consequently, if the conjunction of two aspects (i.e. the APA and the absence of the shared conception) explains non-defeasibly an infringement of the predictability	ought,	it	follows	that	the	law	ought	not	to	contain	[the	APA	and	no	shared conception]. An ideal legal system cannot thus contain the APA without the shared conception.	The	lack	of	the	APA	in	conjunction	with	the	absence	of	the	shared	conception is an essential feature of ideal law. Furthermore, given the guiding function of legal oughts,	this	entails	an	obligation	for	the	lawmakers,	namely	to	ensure	either	the	presence of	the	shared	conception	or	the	absence	of	the	APA. Let	us	focus	on	the	latter	aspect	of	the	legal	ought.	This	legal	ought	puts	lawmakers	under an obligation which involves a choice. They can discharge this ought in two different ways:	either	by	ensuring that the law	does	not	contain	an	APA	type	of legislation	or	by seeing to it that the	shared	conception	obtains.	Given this	choice,	can	we	say	what the lawmaker practically ought to do? In other words: can we detach a further nondisjunctive	(and	thus	guiding)	ought	from	this	disjunctive	ought? Put	abstractly,	the	question	that	needs	answering	here	is	this:	suppose	that	the	law	ought to	have	[either	A	or	B].	Suppose	that	this	entails	that	the	lawmaker	should	see	to	it	that either A or B obtains. Are there circumstances in which we can detach from this disjunctive	obligation	a	non-disjunctive, and thus	practical and	guiding obligation, i.e. a practical	obligation	to	A,	or	a	practical	obligation	to	B? In the following,	we	will focus	on	one	detachment	criterion	that,	we	assume,	applies to the obligation to avoid the situation	wherein a legal system contains the APA	without containing the shared conception. To	guarantee that	disjunctive legal	oughts fulfil their 21 guiding	function,	the	following	modal	detachment	schema	seems	necessary.	Consider	the set	of	all	acts	the	lawmaker	can	instigate.	The	lawmaker	can	issue	a	procedural	rule,	drive home,	boil	an	egg,	etc.	There	will	be	a	subset	of	acts	the	lawmaker	can	instigate	qua	being the	lawmaker	or	legislator.	That	is,	only	some	of	the	things	a	lawmaker	can	do	will	count as	genuine	lawmaking	or	legislating. Assume	again	that	the	law	ought	have	[A	or	B].	Suppose,	however,	that	only	one	of	these options, say A, can be brought about by an act that counts as genuine lawmaking or legislating. That is, B can only, if at all, be brought about by an extralegal act. In this situation, the fact that the law ought to have [A or B] seems to entail the following obligation	for	the	lawmaker,	namely	that	the	lawmaker	is	under	an	obligation	to	A. Apply	this	to	the	disjunctive	ought	that	the	law	of	a	particular	legal	system	ought	[either not	to	contain	the	APA	or	to	contain	the	shared	conception].	Ensuring	that	the	law	does not	contain	an	APA-like	piece	of	legislation	clearly	falls	within	the	realm	of	lawmaking	and legislating.	It	is	something	the	lawmaker	can	ensure	qua	lawmaker.	In	contrast,	to	ensure that the	public	of	a	particular legal system	shares	a	certain	concept	or reasoning	ability with	those	creating,	administering,	and	implementing	the	law	does	not	seem	to	fall	within the	realm	of	legislating.	This	seems	to	be	an	extralegal	aspect	of	a	society	or	legal	system and	nothing the lawmaker can implement	directly through lawmaking.	Consequently, if the	law	ought	[either	not	to	contain	the	APA	or	to	contain	the	shared	conception],	then this	entails	an	obligation	for	the	lawmaker	not	to	issue	APA-like	legal	provisions. This	conclusion	is	limited	by	one	restriction,	however.	It	only	applies	to	contexts	in	which the shared conception is not already present. If a legal system contains the shared conception, the non-disjunctive obligation of the lawmaker to avoid an APA type of legislation	in	the	name	of	predictability	seems	no	longer	to	apply.	As	far	as	predictability is	concerned,	the	lawmaker	is	then	permitted	to	issue	an	APA	type	of	legislation.	Installing an	APA	type	of	legislation	would	then,	ceteris	paribus,	not	violate	a	legal	ought. To	summarise,	Nazi	analogy	legislation	cannot	be	normatively	criticised	by	only	looking	at its	relation	to	the	normative	principle	that	the	law	ought	to	be	predictable.	The	relation between the APA and the predictability ought is logically too weak to permit such a normative	transmission.	However,	the	APA	is	part	of	a	disjunction	of	facts	that	bear	the right	relation	when	it	comes	to	transmitting	the	normativity	of	the	predictability	ought	to the	avoidance	of	this	disjunction.	In	particular,	we	argued	that	the	absence	of	the	shared 22 conception in conjunction with the presence of the APA explains non-defeasibly an infringement of the predictability ought. This entails that the law ought not to contain [the	APA	and	no	shared	conception].	In	principle,	this	leaves	the	lawmaker	with	a	choice: either she	ensures the	avoidance	of the	APA	or she instantiates the shared conception. However, for this ought to be guiding, it needs to entail a non-disjunctive or guiding obligation	of	the	lawmaker.	We	argued	that	a	disjunctive	ought	permits	the	detachment of a	non-disjunctive	ought if the	disjunctive	ought contains	at least	one	disjunct	whose truth the lawmaker cannot	make true qua lawmaker. In other words, if the lawmaker ought to [A or B] and the only	way for the lawmaker to	make true this disjunction via genuine lawmaking is to A, then the lawmaker ought to A. However, this conclusion comes	with	one	restriction.	It	only	holds	in	contexts	in	which	the	disjunction	'A	or	B'	is	not made	true	in	virtue	of	B's	being	true.	For	if	B	is	already	in	place,	the	disjunctive	ought	is already	discharged.	Detaching	a	non-disjunctive	ought	to	guide	the	lawmaker	thus	seems unnecessary. Concluding	remarks The	Nazis	themselves	did	not	suppose	that	German	society	in	the	1930s	was	such	that	a publicly shared conception had in fact been realised. The notion of a shared, infallible conception	of	the	requirements	of	law	did,	however,	play	a	central	role	in	the	Nazi	ideal of	a	racially 'pure'	German	society.	As	shown	above, the legal	element	of this ideal	was formulated	against	the	backdrop	of	a	critique	of	liberalism.	In	particular,	it	was	portrayed as	an	alternative to the liberal state's	prioritisation	of the	written statute (Gesetz) over the substantive principles of justice and right, which constituted law as such (Recht). Recht, on the	Nazi view,	was conceived as a race-specific phenomenon. In the	German case, it	was	thought	to	have its	ultimate	source in	the 'legal	conscience'	of the	national community.28 Further,	because the law	was conceived	as	being so	deeply connected to the underlying 'racial spirit' or consciousness of the German people, reliable epistemic access	to	the	principles	of	German	Recht	and	to	their	correct	application	in	the	concrete circumstances	was	thought	to	be	available	to	members	of	the	'pure'	German	community alone	(an	ideal	community	towards	which,	according	to	the	ideology,	German	society	was developing	under	Hitler	and	the	Nazi	regime). 28	See,	e.g.	Karl	Siegert,	'Nulla	poena	sine	lege',	p.	377. 23 The	means	by	which	access	could	be	had,	however,	was	thought	to	be	sentimental	rather than	rational.	True	members	of	the ideal	national	community	were	meant	to	be	able	to feel	their	way	to	correct	conclusions	of	what	was	right	and	wrong	in	accordance	with	the principles	of	Recht, to	decide	on the	basis	of	an inborn	and	spontaneous	outpouring	of legal sentiment	–	and this	no less	when it came to the	powers	and	abilities	of the true National	Socialist	judge.	Although	Recht	could	be	given	a	general,	rule-like	formulation	by the	Führer	in	its	expression	as	Gesetz,	in	accordance	with	which	rational	subsumption	was possible,	primary	access	to	its	dictates	was	thought	to	be	both	innate	and	irrational.29 Thus the	Nazi ideal included the notion of a shared sentimental capacity,	which,	when used	properly,	would	ensure	accurate	and	reliable	conclusions	about	the	requirements	of Recht.30	Where	the	ideal	had	not	yet	been	realised	(as	was	the	case, it	was	admitted, in the	still 'racially'	heterogeneous	Germany	of the	early	1930s), it	was supposed that the interest in material justice (punishing wrongdoing no matter what its relation to the standing	written	law)	was	strong	enough	to	overshadow	traditionally	liberal	concerns	for general predictability.31 It was thought, however, that upon the realisation of an ideal shared legal sensibility, the use of analogy in the criminal law would pose no risk to predictability in the slightest. Indeed, it was largely supposed that the use of analogy would	in	fact	do	for	Nazi	criminal	law	what	adherence	to	nulla	poena	sine	lege	could	not: to	connect	legal	outcomes	to	the	legal-ethical	norms	to	which	all	members	of	the	German Volk	had	direct,	unmediated	epistemic	access	and	by	which	they	in	any	case	guided	their everyday	lives. No	matter	the	dubiousness	of	the	intellectual	climate	in	which	it	was	put	forward,	what this line of thinking supposes, and	what	we	have argued in this paper, is that the	Nazi introduction	of	analogical	reasoning	into	the	criminal law	and	pieces	of legislation	like	it 29	Nazi	scholars	often	spoke	of	their	triumphant	overcoming	of	the	liberal	separation	of	Recht	and Gesetz,	but	this	must	be	interpreted	carefully.	The	general	idea	seems	to	have	been	that	the	new (Nazi)	written	law	would	constitute	an	expression,	via	the	will	of	the	Führer,	of	the	legal	conscience of the national community. Criticism of rejected liberal laws (particularly those protecting basic civil liberties) hinged on the idea that they did not accurately express (or 'develop') the basic principles of German Recht. See, e.g. Manfred Fauser, 'Das Gesetz im Führerstaat', Archiv des öffentlichen	Rechts	26.2	(1935):	pp.	129-154,	132. 30	The	true	spirit,	or legal	conscience,	of	the	national	community	(Volksgeist,	das	Rechtsgewissen des	Volkes),	in	which	German	Recht	was	thought	to	be	grounded,	was	generally	conceived	both	as having	been	realised	in	the	past	and	as	awaiting	a	future	revival	as	a	result	of	the	eventual	success of	the	Nazi	project.	See,	e.g.	Siegert,	'Nulla	poena	sine	lege',	p.	377. 31	See,	e.g.	Siegert,	'Nulla	poena	sine	lege',	p.	380. 24 can	in	theory	be	made	consistent	with	the	satisfaction	of	the	normative	claim	that	the	law ought to be predictable. In this paper, we have identified key background conditions under which such consistency can be realised.	We have argued that the possibility 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	contain	a	Nazi	type	of	analogy	legislation. With	this	said,	however,	we	have	attempted	to	show	that	the	APA	is	part	of	a	disjunction of	facts	that	bear	the	right	relation	when	it	comes	to	transmitting	the	normativity	of	the predictability ought to the avoidance of at least this disjunction. The absence of the shared	conception	in	Germany	the	early	1930s	in	conjunction	with	the	APA	explains	nondefeasibly an infringement of the predictability ought. This entails that something	was normatively amiss in the situation in which both the APA and no shared conception obtained.	Lawmakers	ought	either	to	have	ensured	the	avoidance	of	the	APA	or	to	have instantiated	the	as	yet	unrealised	shared	conception.	To	the	degree	that	the	latter	option was not open to the Nazi legislators of the 1930s qua lawmakers, satisfaction of the predictability	principle requires that they	ought	not to	have introduced the	APA.	This is the popular and intuitive conclusion	we have been tracing all along.	What	we hope to have	shown	in	this	paper,	however, is that	this	criticism	cannot	follow	directly from	the observation that the introduction of the APA implied, caused or promoted the unpredictability of the criminal law in Germany in the early 1930s. The normative transmission at stake requires a stronger relation – one that, in this case, existed only between	the	law's	predictability	and	a	combination	of	facts	which	included	the	APA.	It	is from	this	more	complicated	normative	basis	that	critical	conclusions	of	the	sort	found	in the	literature	on	Nazi	criminal	law	can	legitimately	be	constructed.32 32	We	are indebted	to	Raymond	Critch,	Herlinde	Pauer-Studer,	and	audiences	at	Bratislava,	Graz, Milan,	and	Vienna	for	helpful	comments	on	earlier	drafts	of	this	paper.	Research	for	this	paper	was funded	by	the	ERC	Advanced	Grant 'Distortions	of	Normativity'.	We	thank	the	ERC	for	their	very generous	support.