(2012)	Jurisprudence	3(2),	pp.	341-6 New	Perspectives	on	Nazi	Law Carolyn	Benson,	Vienna Julian	Fink,	Vienna Introduction The purpose of this symposium is to highlight new trends and developments pertaining	to	the	normative	appraisal,	and	the jurisprudential	consequences,	of the	legal	system	established	by	the	Nazi	government	in	Germany	between	1933 and	1945.	In	particular,	our	focus	lies	on	neglected	or	under-discussed	aspects	of the	Nazi	legal	system. Before we come briefly to introduce the contributions to this symposium, it would be helpful to describe some essential characteristics of law under Nazi rule. What is perhaps most immediately obvious is that this system represented a gross departure from the rule of law1: the Nazis eradicated legal security and certainty;	allowed for judicial	and	state	arbitrariness;	blocked	epistemic	access to	what	the	law	requires;	issued	unpredictable	legal	requirements;	and	so	on.	A fruitful	way	to	begin	to	describe	the	distorted	nature	of	the	Nazi	legal	system	is thus	to	look	at	the	factors	that	contributed	to	this	grave	divergence. Certain key legal developments stand out as	most directly contributing to this result.	These	include,	in	particular: (i) the establishment under Nazi rule of a new ultimate justificatory standard	of	'good'	law; (ii) the validation of distinctively	political and	non-formal sources of law (Rechtsquellen); (iii) the degradation of the written law in favour of vague ideological standards;	and 1	By	'rule	of	law'	we	refer	to	the	political	ideal	of	a	form	of	governance	in	which laws, lawmaking and adjudication	meet certain general criteria, including (but not limited to) the principles that all laws should be prospective, publicised, clear,	and	stable;	that	the	judiciary	should	remain	independent;	that	courts	must be	accessible;	and	that	the	principles	of	natural	justice	ought	to	be	observed.	For an	elaboration	on these	principles	and	a	very	helpful sketch	of the rule	of law, see	Joseph	Raz,	'The	Rule	of	Law	and	its	Virtue'	The	Authority	of	Law,	2nd	edition (Oxford: Oxford University Press, 2009) pp. 210-229. C.f. also earlier interpretations famously	offered	by	F.	A.	Hayek in	The	Road to	Serfdom (1944) 2nd	ed.	(Oxford:	Routledge	Press,	2001)	and	A.	V.	Dicey	Introduction	to	the	Study of	the	Law	of	the	Constitution,	8th	ed.,	(London:	MacMillan,	1915),	p.	198. 2 (iv) the	denial	of	the	separation	between	law	and	Nazi	'morality'. We	shall	briefly	discuss	these	four	developments	in	turn. Ad	(i).	Suppose	an	'ultimate	justificatory	standard	of	good	law'	is	a	principle	that the	lawmaker	accepts	in	assessing	the	justification	of	a legal	provision	and	that itself, at least from the lawmaker's point of view, does not require further justification.	Then,	according	to	the	Nazi	view,	the	central	justificatory	standard in the liberal-democratic	state	was	the	protection	of individual freedom.2	Upon the Nazi seizure of power, liberal ideas were degraded in legal scholarship.3 Instead, the primary Nazi standard of 'good law' was taken to be the advancement, purification, and development of those collective properties thought to be essential to the flourishing of the German 'blood-community' (Blutsgemeinschaft).	In	fact,	this	standard	functioned	as	a	chief	source	of	law.	The Nazi	jurist	Heinz	Hildebrandt	expresses	this	point	as	follows: [The]	initial	point	[of	National	Socialism]	is	neither	the	individual	nor	humanity,	but the entire German people; its aim is the securing and promotion of the German blood-community [...]. The outcome of this are certain principles of law [Recht]: firstly,	the	unconditional	alignment	of	the	correctness	of	law	with	the	general	good and the future	of the	German	blood-community; secondly, the	constant	evaluative primacy of the correctness of law over legal security; and thirdly: the increased acceptance	of	legal	flexibility	over	legal	constancy!4 Ad (ii). Traditionally, the law, and what is legally required, are thought of as having	a	source.	Such	sources	can	be	formal	or	informal.	The	content	of	a	formal source is always expressed within a legally authorised document; commonly, these include the constitution, simple statutes, precedents, administrative regulations, charters and by-laws. The content of a non-formal source is not explicitly expressed in a legal document; such sources may include customs, reasonable	expectations,	considerations	of justice,	considerations	regarding	the nature	of	things,	public	policies,	and	ethical	standards.5 2	See,	for	example,	Hildebrandt,	Rechtsfindung	im	neuen	deutschen	Staate,	(Berlin und Leipzig: W. de Gruyter & Co., 1935), p. 27: 'Liberalism is based on the individual.	It	views	the	moral	or	even	economic	"freedom"	of	the	individual	as	an end	in	itself,	a	final	value'	(trans.	C.B	and	J.F). 3 See, e.g. the lengthy discussion of the liberal era and its emphasis on the freedom of the individual in Ernst Forsthoff's Der Totale Staat (Hamburg: Hanseatische	Verlagsanstalt:	1933),	esp.	pp.	8-28,	as	well	as	Otto	Koellreutter's more pithy discussion of the liberal Rechtsstaat in	Deutsches Verfassungsrecht (1935),	3rd	edition	(Berlin: Jünker	und	Dünnhaupt	Verlag:	1938)	pp.	14-15.	See also Rudolf Huber's Verfassungsrecht der Grossdeutschen Reiches (1939), 2nd edition	(Hamburg:	Hanseatische	Verlagsanstalt). 4	Heinz	Hildebrandt,	Rechtsfindung im neuen deutschen Staate, pp. 31-2 (trans. C.B.	and	J.F). 5 For the distinction between 'formal' and 'informal' sources of law see, for example, Charles P. McDowell, Criminal justice in the community, (1939), 2nd edition,	(Cincinnati,	Ohio:	Anderson	Pub.	Co.)	pp.	26ff. 3 The Nazis	validated	the	following	informal	sources	of	law:	(a)	National	Socialist ideology, (b) the party platform of the NSDAP6, (c) the will (volition) of the Führer7,	and	(d)	the	'sound	perception'	of	the	people.8	An	excessive	rejection	of the authority of formal sources led to a situation in which these vague and malleable informal	sources	were	substantially	relied	upon	in	determining	what the law	required. (a)	and	(b)	proved	particularly	notorious in, for instance, the instalment	of	the	Nuremberg	Laws,9	while	(c)	and	(d)	contributed	to	a	practical abandoning	of	the	principle	nullum	crimen,	nulla	poena	sine	lege,	which	had	been guaranteed	under	Article	116	of	the	Weimar	Constitution. Ad	(iii).	As	a	consequence,	the	Nazis	degraded	the	written	legal	statute	(Gesetz) and	prioritised	what	they	took	to	be	law	and	justice	as	such	(Recht).	According	to the	National	Socialist	conception	of	law,	Recht	was	understood	as	an	expression of	the	'racial	soul'	of	the	German	Blutsgemeinschaft.	It	therefore	consisted	of	the principles	at	the	heart	of	the	so-called	'racial	community'	and	the	Nazi	movement as	a	whole.	The	written law,	by	contrast,	was	considered	necessary in the	Nazi state only insofar as Recht required a concrete determination in particular 6 'The	party	platform	of	the	NSDAP	is	a	real,	and	our	most	important,	source	of law.	Today,	it	is	already	valid	law	and	dominates	and	penetrates	in	different	but always effective forms the entire activity of all German preservers of the law [Rechtswahrer], the lawmakers and the law-interpretating [...] judges, [...] the attorneys, and the legal scientists and tutors.' Carl Schmitt, 'Aufgabe und Notwendigkeit des deutschen Rechtsstandes', in	Deutsches Recht. Zentralorgan des	National-Sozialistischen	Rechtswahrerbundes	6	(1936)	p.	181	(trans.	C.B.	and J.F.). 7 'In a community that regards the state as a means to the National-Socialist ideology, the law is the idea and will of the Führer.' Schmitt, 'Aufgabe und Notwendigkeit	des	deutschen	Rechtsstandes'	p.	184	(trans.	C.B.	and	J.F.). 8	The	'sound	perception	of	the	people'	was	formally	introduced	as	a	criterion	in determining	the	legal	status	of	actions	not	covered	by	the	existing	written	law	by the 'Gesetz zur Änderung des Strafgesetzbuchs vom 28. Juni 1935', Art. 1, §2, RGBl. I, p. 839. Prior to this legislation, though, the importance of ensuring a connection between law and what was thought to be a racially inborn 'legal conscience' or 'legal sense' on the part of the ordinary member of the Blutsgemeinschaft was articulated by various Nazi writers. See, e.g. Herman Göring,	'Die	Rechtssicherheit	als	Grundlage	der	Volksgemeinschaft'	Schriften	der Akademie für Deutsches Recht, ed. Hans Frank (Hamburg: Hanseatische Verlagsanstalt,	1935),	esp.	pp.	9-10,	13-14	(p.	13: 'It is	neither the letter	of the written	law	[Gesetz],	nor	the	letter	of	the	law	as	such	[Recht],	but	the	legal	sense itself: the	conviction	that	what	happens	is	under	all	circumstances	right,	may	it be formed into law in one form today and in another form tomorrow. That is what	is	eternal:	the	sensation,	the	belief	and	the	longing	for	rightness	and	justice' (trans.	C.B.	and	J.F.).	See	also	the	treatment	of	this	theme	in	Helmut	Nicolai,	Die rassengesetzliche Rechtslehre: Grundzüge einer Nationalsozialistischen Rechtsphilosophie, (Munich:	Verlag	Verlag Frz. Eher Nachf., 1932). 9 Evidence of this can	be found in	Werner	Marckmann and	Paul Enterlein,	Die Entjudung der deutschen	Wirtschaft (1938, Berlin: Gersbach	& Sohn	Verlag), p. 11. 4 circumstances.10 It was considered law only because, and only where, it expressed	the	underlying	principles	of	Recht. In	cases	of	disagreement	between Recht	and	Gesetz,	the	former	was	deemed	decisive.	Insofar	as	it	was	central	to	the Führer-principle	that	the	will	of	the	leader	ultimately	determined	what	was	to	be done	in	legal	matters,	it	was	argued	that	the	application	of	the	law	to	the	present case could not be restricted by the wording of written statutes, which might themselves	prescribe	decisions	contrary	to	the	Führer's	volition.	It	is	in	this	vein that	Manfred	Fauser	writes	the	following: It	is	justified	to	deem	the	equation	of	[positive]	law	[Gesetz]	and	justice	[Recht]	as unnatural	and	unrealistic	(and	'positivistic')	and	thus	to	reject	it.	According	to	the racial	view,	justice	[Recht]	is	an	expression	of	the	racial	soul	[Rassenseele]	before the	law.	Justice	has	to	embody	the	people's	sense	of	justice	and	the	longing	of	the racial	soul.11 Ad (iv). According to the Nazi	Weltanschauung, every race possesses its own 'soul' (Rassenseele): the seat of particular cultural and ethical values. As	Recht was taken by the Nazis to be a direct expression of this racial soul, a guiding tenet	of	Nazi	legal	thinking	was	that	law	as	such	could	not	be	separated	from	the living ethical spirit of the	Blutsgemeinschaft. This opened the	way for viewing actions offensive to the 'sound'	moral conscience of the community as legally punishable.	German	law	was	conceived	as	deeply	rooted	in	the	customary	moral life	of	the	German	community;	it	was	not	created	by	command,	but	grounded	in the moral conscience of the people. In particular, National Socialist norms of honour, loyalty, decency and trustworthiness that had previously been considered standards of private virtue came to play the part of publicly enforceable	legal	standards.	The	sphere	of	private	morality	was	thus	eradicated under	Nazi	rule,	making	way	for	legal	intrusions	into	people's	lives	that	were	by their	very	nature	unpredictable,	politically	motivated,	and,	by	light	of	standards made	commonplace	since	the	Enlightenment,	wholly	illegitimate. In sum, the Nazi legal situation was thus one in which law was rendered unpredictable, malleable, and inextricably dependent on current political ideology.12	This	shift in thinking	about the	source	of law	and the	standards for legitimate	legal	decisions	was	then	used	by	Nazi	jurists	to	justify	the	substance	of Nazi laws, rendering law under Nazi rule an indispensable tool in the direct persecution,	degradation	and	dehumanisation	of	those	deemed	'enemies'	of	the Nazi state. Laws explicitly mandating the isolation, humiliation, disenfranchisement, and deportation of citizens on racial and other discriminatory grounds could be viewed as expressions of the underlying imperative, the heart of German Recht, to protect and promote the Blutsgemeinschaft. With the above jurisprudential framework in place, a 10	See,	e.g.	Helmut	Nicolai,	Die	rassengesetzliche	Rechtslehre	,	pp.	31-32. 11	Manfred	Fauser, 'Das	Gesetz	im	Führerstaat', in	Archiv	des	öffentlichen	Rechts 26	(1935),	pp.	131-2	(trans.	C.B.	and	J.F.). 12 In his contribution to this symposium ('Evil Law, Evil Lawyers? From the Justice Case to the Torture Memos'), David Fraser discusses to what extent a sense	of	legal	correctness	and	a	phenomenological	experience	of	justice	is	always based	on	–	or	at	least	connected	to	–	the	prevailing	political	ideology. 5 substantive shift in the content of	German law	was therefore given theoretical grounding,	making	possible	the legal justification	of the	anti-Jewish laws	which were	to	pave	the	way	toward	the	atrocities	of	the	1940s. *	*	* After the end of	WWII, Anglo-American academic discussion of the Nazi legal system during the 1950s and early 1960s raised interesting questions concerning the legality	of	Nazi statutes, as	well as the	practical implications	of decisions	on	this	matter	for	certain	puzzling	post-war	legal	cases.	Famously,	the question	of	whether	Nazi law	was in fact law	was	one	of the	more	memorable points	of	contention	in	H.L.A.	Hart	and	Lon	L.	Fuller's	1958	debate,	with	its	focus on the so-called Grudge Informer Case.13 In their exchange of views, Hart and Fuller	touched	on	problems	spanning	from	the	specific	matter	of	whether	wicked Nazi laws should be invalidated by retrospective statutes to the	more general and	theoretical	questions	of	whether	the	validity	of	particular laws	depends	on their	moral	content	and	whether the	existence	of law	must	at least	make	some positive moral difference to the circumstances in which it is present. The substantive	wickedness	of	the	Nazi legal	system	and	its	failure	to	live	up	to	the basic	principles	characterised	by	the	rule	of	law	offered	both	scholars	a	concrete focal	point	for	a	discussion	concerned	principally	with	the	relation	between	law and	moral	value, as	well as the implications	of this for	what	ought, legally	and morally,	to	be	done. In the present symposium, however, we attempt to move beyond the issues raised	in	the	Hart-Fuller	debate.	Whether	or	not	a	legal	system	possesses	legality is	of	course	a	central	theme	in	the	normative	appraisal	of	the	Nazi	legal	system. Arguably,	however,	our	normative	judgement	should	not	be	limited	to	the	issue of	legality.	We	should	also	consider	the	legal	(or	legal-theoretic)	conditions	from which Nazi law arose and developed, the way it was experienced by those practicing	and	subject	to	it,	and	how	it	related	to	the	pre	and	post-Nazi	legal	era. 13	H.L.A.	Hart, 'Positivism	and the	Separation	of	Law	and	Morals',	Harvard	Law Review 71 (1958): 593-629; Lon L. Fuller, 'Positivism and Fidelity to Law – A Reply to Professor Hart', Harvard Law Review 71 (1958): 630-672. The term 'grudge informer' in this context refers to people who helped to prosecute, supposedly under Nazi law but ultimately for morally questionable personal motives, those	who	criticised	Hitler	or	the	war.	The	case	discussed	in	the	HartFuller	debate	concerned	in	particular	a	wife	who	had	helped	in	the	prosecution of	her	own	husband,	and	who	was	later	prosecuted	in	a	post-war	West	German court for having illegally deprived her husband of his freedom (rechtswidrige Freiheitsberaubung). For more on this example and its philosophical implications, see, in addition to Hart and Fuller above, H.O. Pappe, 'On the Validity of Judicial Decisions in the Nazi Era', The Modern Law Review 23.3 (1960): 260-74; David Dyzenhaus, 'The Grudge Informer Case Revisited', New York University Law Review 83 (2008): 1000-1034; and Thomas Mertens, 'Radbruch	and	Hart	on the	Grudge Informer:	A	Reconsideration',	Ratio Juris	15 (2002):	186-205. 6 In	fact,	a	general	theme	that	requires	further	examination	is	why	a	system	that lacked	the 'inner	morality	of the law' (in	Fuller's	sense)	could	remain	stable	as long	as	it	did	and	be	applied	in	practice	by	German	jurists.	Questions	that	equally require	further	philosophical	attention	include	the	following: (i) In what ways did the predominant legal culture of the Weimar Republic contribute to the rise	of the	Nazi legal system,	and in	what ways might the distinctively German brand of positivism popular before the rise of Nazism be said to have contributed to the Nazis' gross	departure	from	the	rule	of	law? (ii) What	was the phenomenological experience of those practicing and subject to Nazi law? What was the Jewish experience of daily life under	the	Nazi	legal	system?	What	was	the	subjective	justification	and the	self-understanding	of	those	practicing	Nazi	law? (iii) Under	which	circumstances,	and	on	what	basis,	can	we	justifiably	say of a particular Nazi legal provision that it ought not to have been enacted? (iv) Was part of the post-war criticism of	Nazi law (in particular, that it was strictly instrumentalised by the Nazis' political aims) itself nothing	but	an instrumental	expression	of	the	predominant interests of	post-war	politics? Although	contributors	to	this	symposium	are	clearly	inspired	by	the	ideas	raised by Hart and Fuller, their papers address these further legal-philosophical questions, and so depart in interesting ways from the approach to raising questions	about	Nazi	law	that	we	find	in	the	1958	debate. * * * A common post-war reaction to the failure of the German judicial system to prevent	the	atrocities	of	the	1930s	and	'40s	–	as	well	as	its	active	involvement	in many	of	these	horrors	–	was	a	sense	that	the	influence	of	legal	positivism	on	the German	judiciary	was	somehow	responsible.	In	particular,	it	was	argued	that	the 'law is law' attitude supposedly engendered by legal positivism created a situation	in	which	judges	and	ordinary	citizens	were	rendered	less	likely	to	take action against injustices that had been given the cloak of legality by Nazi lawmakers. In	'Positivsm	and	Relativism	in	Post-war	Jurisprudence',	Raymond	Critch	argues that	positivism	did	not in fact	play	a	substantive	role in	allowing	the	perverted judicial	culture	of	the	Third	Reich.	While	others	–	notably	Stanley	Paulson	–	have already cast a great deal of doubt on Gustav Radbruch's claim that positivism rendered 'the German juristic fraternity defenceless in the face of laws of arbitrary and criminal content,'14 Critch presents an alternative reading of 14	Translation	from	Walter	Ott	and	Franziska	Buob,	'Did	Legal	Positivism	Render German Jurists Defenceless During the Third Reich,' Social & Legal Studies 2 (1993): pp. 91-104, quoting Radbruch 'Gesetzliches Unrecht und übergesetzliches	Recht'	in	Rechtsphilosophie	(Heidelberg:	Müller,	1999)	p.	211. 7 Radbruch's claim, arguing that German positivism's underlying relativism	was what rendered the judiciary defenceless. His explanation of the metaethics of pre-war	positivism	focuses	on	Radbruch	and	Hans	Kelsen.	On	his	analysis,	each of these jurists espoused very different kinds of relativism	with very different jurisprudential commitments. Critch concludes that while Radbruch is right about	positivism's	non-cognitivistic	and	relativistic	commitments,	he	is	mistaken to	conclude	that	this	had	the	impact	on	the	judiciary	he	takes	it	to	have	had. In 'Law and Morality in the SS-jurisdiction: The SS-Judge Konrad Morgen', Herlinde	Pauer-Studer	casts	new	light	on	a	neglected	problem.	How	can	a	post1945	court	convict	a	person	for	grossly	immoral	deeds	committed	between	1933 and	1945	in	Germany	if	those	deeds	where	consistent	with	(or	even	required	by) Nazi	law?	Hart	argued	that	there	would	have	been	some	merit	in	handling	cases such	as the	Grudge Informer	Case	by frankly	and	honestly	applying	retroactive laws as an alternative to letting those in question go unpunished or merely denying that prior legal statutes had the force of law.15 However, as Hart acknowledges, this suggestion leads to the inevitable sacrifice of a key component of the rule of law, as a non-retroactive application of the law is necessary for ensuring the law's predictability.16 An alternative tack would involve	denying	morally	repugnant	Nazi	laws	the	status	of	'law'	altogether,	thus precluding	a	central	defensive	argument	on	the	part	of	the	Grudge	Informers	and those	in	similar	post-war	legal	situations.	Hart,	for	example,	presents	his	view	in opposition	to	the	view	he	attributes	to	Gustav	Radbruch,	who	became	convinced that	we	can	adequately	handle	cases	of	gross injustice	done in the	name	of the law	only	by	assuming	that	morality	itself	represents	a	universal	limit	on	what	can count	as	law,	such	that	no	legal	statute	or	enactment	can	count	as	legally	valid	if it	offends	against	basic	moral	principles.17 In her contribution, Pauer-Studer takes issue with the notion that the mere synthesis	of	morality	and	law	is	the	proper	prism	through	which	to	deal	with	the problems posed by Nazi law. According to her argument, the Third Reich provides a striking example of a situation in	which	morality itself came	under great pressure, no longer providing an adequate guiding standard, as some theorists	have	assumed	it	must. In	order	to illustrate	her	central	claims,	PauerStuder reveals the 'moral mechanics' behind the Nazis' unification of law and morality. In particular, she focuses on the first-person perspective of a Nazi judge,	Konrad	Morgan,	who	applied	Nazi	law	within	a	highly	moralised	segment of Nazi legislation (i.e. the SS jurisdiction) in order to prosecute high-ranking Nazi	officials	involved	in	extermination	programmes.	In	his	post-war	attempts	to justify and explain the relationship between law and morality, Judge Morgen 15	'Positivism	and	the	Separation	of	Law	and	Morals',	pp.	619-20. 16	Cf.	Lacey,	'Philosophy,	Political	Morality,	and	History:	Explaining	the	enduring resonance	of	the	Hart-Fuller	Debate',	pp.	1081-2. 17 See, e.g. Radbruch, 'Gesetzliches Unrecht und Übergesetzliches Recht', Süddeutsche Juristen-Zeitung 1 (1946), pp. 105-108. See also Hart's characterization of this view in 'Positivism and the Separation of Law and Morals',	pp.	615-21. 8 provides us with a fascinating yet neglected insight into how the Nazi moralisation	of	the	law	guided	the	application	of	Nazi	law	in	the	judicial	process. This case study leads Pauer-Studer to two chief conclusions. First, she shows how the first-person interpretation of abstract moral principles can lead to a distorted application of morality through (ab)using the authority of judicial institutions.	Second,	she	argues	that	in	order	to	deal	with	the	moral	deficiencies of	the	Nazi	legal	system,	we	cannot	simply	do	away	with	the	distinction	between law	and	morality	as such. Instead,	we should	approach the	problems	posed	by Nazi law via a non-moralising conception of legality that hinges on the basic requirements	of	a	rule	of	law	system.	In	order	properly	to	deal	with	the	failures of the Nazi system, she argues, what is needed is a correct and undistorted application of valid moral insights via requirements of legality that can be articulated	without	endorsing	a	comprehensive	moral	outlook. 'Evil	Law,	Evil	Lawyers?:	Authority,	Legality,	Legitimacy	from	the	"Justice	Case" to the	Torture	Memos' (David	Fraser) takes issue, inter	alia,	with the following apparent inconsistency. In the so-called "Justice Case" (1947) (United States v. Joseph Altstoetter et al., Nuremberg, Germany) a significant number of former justice	officials	in	the	Third	Reich	were	charged	and	convicted	by	a	US-led	court for war crimes, crimes against humanity, and their membership in criminal organizations.	A large	part	of this	conviction	was	not	premised	on	positive,	but on natural law embodying universal values like 'humanity' and 'civilization'. More	than	50	years	later,	US	government	attorneys	drafted	a	collection	of legal documents that came to be known as the 'torture	memos'. These	memoranda aimed at giving a legal basis and justification for so-called 'enhanced interrogation techniques'. Although this legal attempt to legitimise de facto torture arguably stands in stark contrast to universal values that led to the convictions in Nuremberg in 1947, and, in addition, could be considered as infringing international criminal law, none of the	US attorneys responsible for the	torture	memos	have	been	charged	with	the	offence	of	conspiracy	to	commit crimes	against	humanity. In his contribution, Fraser tackles and attempts to explain this apparent inconsistency	by	alluding	to	a	significant	similarity	and	continuity	between	pre1945 Nazi law and post-1945 Anglo-American law. Fraser argues that by comparing,	for	instance,	the	life	world	and	the	professional	self-understanding	of lawyers committed to the aims and policies of, on the one hand, the Nazi government	and,	on	other	hand, the	George	W.	Bush	administration, it	appears that	the	self	understanding	of	both	groups	can	be	made	intelligible	by	conceiving of them as an interpretative community that shares (i) a particular intellectual conception of the meaning of law and (ii) a phenomenological experience concerning the practice and utilization of law. In particular, lawyers, Fraser argues,	experience	and	conceptualize	the	authority	and	legitimacy	of	law	relative to	the	political	ends	and	power	of	the	prevailing	political	system.	In	fact,	lawyers' use	(and	abuse)	of	'good'	or	'just'	law,	and	of	'humanity'	and	'civilization',	are	in fact	nothing	but	institutionalized	expressions	of	political	supremacy.	Fraser	aims to show that this holds for Nazi law, the Justice case, and those who wish to legitimize	torture	and	so-called	'targeted	killings'	in	the	current	'war	on	terror'. 9 In 'Law and Daily Life: Questions for Legal Philosophy from 1938', Kristen Rundle highlights the importance of the experience of the legal subject under Nazi law for Holocaust scholarship and legal philosophy alike. In a series of reflections	inspired	by	Jewish	testimonies	of	life	under	Nazi	law,	she	aims	to	lay bare	the	connections,	largely	obscured	in	mainstream	legal	philosophy,	between the form of law and human agency. In particular, her aim is to convince legal philosophers	of	the	relevance	of	asking	questions	about	the	capacities	assumed to	belong	to	the	legal	subject	in	the	dominant	legal	philosophies,	with	a	view	to shedding	light	on	the	way	in	which	law	is	taken	both	to	address	and	to	constitute those	whom	it	governs. One	of	Rundle's	central	observations	is	that	Jewish	testimonies	of	life	under	Nazi law	from	the	period	surrounding	November	1938	reveal	a	profound	and	growing sense	of	loss	of	the	possession	of	a	'daily	life'.	The	question	then	becomes:	do	the dominant legal philosophies accommodate this intuition in any real sense?	Do they	either	explicitly	or	implicitly	portray	the	legal	subject	as	someone	capable	of possessing a 'daily life'? For Rundle, this shift in attention to the relationship between the	presence	of law	and the	possibility	of	daily life	offers	a	promising path toward a better understanding of	more general and traditional questions concerning	the	relationship	between	law	and	such	things	as	value,	morality	and agency.	A	central	aim	of	this	paper,	with	its	focus	on	the	notion	of	daily	life,	is	to provide a novel conversational framework in terms of which a deeper understanding	of	the	similarities	among	competing	legal	philosophies,	otherwise obscured	by the	big legal-philosophical	questions	of the	20th	Century,	might	be possible. In addition, the paper offers an original perspective from which to consider	the	elusive	significance	of	the	presence	of	law	for	those	living	under	it. In	'Legal	Oughts,	Normative	Transmission,	and	the	Nazi	Use	of	Analogy',	Carolyn Benson and Julian Fink argue for the need to re-examine the normative theoretical	framework	against	which	judgments	about	the	Nazi	legal	system	–	as well	as	people's	practical	duties	in	response	to	it	–	are	commonly	made.	Taking as their focal	point the introduction	of the	use	of	analogy in	Nazi criminal law, Benson and Fink consider the following question: does the fact that the Nazi brand of analogy legislation implied, caused or contributed to the unpredictability of the criminal law lead to the conclusion that an ideally predictable	legal	system	would	not	contain	this	type	of	legislation? Behind much commonsense criticism of non-ideal legal systems is the assumption that a particular element in that legal system's having caused or increased the	non-idealness of that system	– its	making it	worse off, as a legal system – grounds the conclusion that the element in question ought to be changed, and that the lawmakers in that system	have a responsibility to	work toward	such	change.	The	main	thesis	of	this	paper	is	that	this	assumption	must be	re-examined	and	that	relations	such	as	implication,	causation	or	contribution are	not	logically	sufficient	to	ground	the	relevant	type	of	normative	inference.	In place of implication, causation and contribution, Benson and Fink suggest turning	our	attention	to	the	relation	of	non-defeasible	explanation	as	a	means	of grounding the normative conclusion that the law ought not to contain a 10 particular	element.	With	this	theoretical	background	in	place, they	argue	that	a more	complex	and	precise	normative	evaluation	of	the	practical	requirements	on lawmakers	regarding	the	Nazi	use	of	analogy	is	genuinely	possible.18 18	We	would	like	to	thank	the	editors	of	Jurisprudence	for	inviting	us	to	edit	the present	symposium,	the	anonymous	referees	for	reviewing	the	submitted articles,	and	our	authors	for	their	contributions.	The	editing	of	this	symposium was	carried	out	under	the	ERC	Advanced	Grant	'Distortions	of	Normativity'.	We are	grateful	for	the	ERC's	financial	support.