The paradigm of Post-War: the construction of a myth
| Autor | Lara Freire Bezerra de Sant'Anna |
| Ocupação do Autor | Master in Public Law by the Public University from Sergipe |
| Páginas | 2924-2941 |
2924 • XXVI World Congress of Philosophy of Law and Social Philosophy
The paradigm of Post-War
The construction of a myth
Lara Freire Bezerra de Sant’Anna1
Abstract: With the end of World War II takes force the moralization process of
law, in the apparent rapprochement jusnaturalists ideals. This process is ex-
plained by the belief that legal positivism, the doctrine of law dominant until
then, had not only legitimized the abuses of the dictatorial regimes, which have
passed under the scrutiny of legality, as left “defenseless people and lawyers
against laws more arbitrary, more cruel and more criminal “(Radbruch, 1945,
pThehumanbeinghimselfresponsible forthetragedieslookedawayfrom
himself to blame for an event that, if it was terrible in its magnitude, was not the
rstnorthelastStartingfromthispremiseitexplorestheroleoftheNurem-
berg Tribunal, for exposing its contradictions, media demonstrate the character
of their decisions. To make use of contemporary words, this sudgn nothing more
than a media trial, not only for having tried and convicted only a few pairs of
Nazi Germany, handpicked, leaving the rest of Europe to warm up under the
mantle of oblivion, as if anything had cooperated, for not having solved the
problem of the Jews in that old continent, where they remained victims of seg-
regationandprejudiceJudtpItisacentralconcernofthiswork
to deal with the issue of the overcome of legal positivism, because it constitutes
the basis for conclusions and implications of the remaining components of the
postwar myth: the idea that legal positivism was not only the theory of the Nazi
state, but also it was responsible for its success, for preaching a blind and un-
critical obedience to the law. This premise is refuted in this work to demonstrate
that, far more than revolutionary paradigm, the postwar idea represented, above
allamythThisrebualwillbedividedintotwopartslegalpositivismwas
notthetheoryoftheNazistatelegalpositivismdoesnotpreachanabsolute
and blind obedience to the law. The aim is to demonstrate that an authoritarian
state, although it continues to have laws, is not a rule of law itself, because it
ignores the most important principles of law, being in fact a exceptional state.
It seeks, moreover, emphasize the mistake of proposing critics and a limitation
of democracy through undemocratic examples. It’s academic work, with a focus
on historical and philosophical analysis of law.
Keywords: Post-war paradigm ; legal positivism; Nazi state; illegality .
1
Master in Public Law by the Public University from Sergipe. E-mail: lara.f.b.santanna@
gmail.com.
1 Building a paradigm for the Post-War : a new model of law and
democracy
DespitetheUSpraxisofjudiciarysubstantiveinterpretationand
control of law since the late eighteenth century, in world scale is with the
end of the Second World War that takes place the process of moralizing
force of law, in obvious approach to American model, which has a clear
inspiration in natural law. This process is explained by the belief that
legal positivism was the dominant doctrine of Law until then, which
had not only legitimized the abuses of the dictatorial regimes, which
have passed under the scrutiny of legality, but also had left “defenseless
people and lawyers against the most arbitrary, cruel and criminal laws”
RADBRUCHpThehumanbeinghimselfresponsibleforthe
tragedies, looked away from themselves to blame for an event that, if it
wasterribleinitsmagnitudewasnottherstnorthelast
Moreover, the Nuremberg Trial, blacklighted with the spotlight
of justice, reason and the rule of law, words of the American prosecu-
tor Robert Jackson, in his speech by the beginning of the trial2, it was
actually the imposition of winners force and revenge3: for this reason,
and for no other, the atomic bombing of Hiroshima and Nagasaki, con-
ducted by the United States of America, was never charged, nor tried
as a war crime4 and against humanity5. To use contemporary words, it
was a media trial, not only for having tried and convicted only a few
pairs of Nazi Germany, handpicked, leaving the rest of Europe to bask
under the cloak of forgetfulness, as if had not cooperated, but also for
not having solved the problem of the Jews in that old continent, where
2
Dialogue from the documentary of Nazis Trial in Nuremberg. [on-line] Available in
https://www.youtube.com/watch?v=UGMOD_UkeYY. Captured in February 21, 2013.
3
Tony Judt (2008, p. 68), says: “Many people complains about the trials, dening them
as “winner justice”, and that’s what they really were, in fact.” Also in this sense, the words
of the own General LeMay, in a interview for the Time Magazine: “I believe that if we
had lose the war I would have been hanged as a criminal war. Happily, I’m in the winners
side” (apud MOURÃO, 2005, p. 695).
4
It must be emphazed that war crime means, according to Ronaldo Rogério Fretas
Mourão (2005, p. 695), the violation of law and uses of war, usually when one of the parts
voluntarily attacks non-military targets. at was the case of Hiroshima and Nagasaki.
5
In the opposite way of the speach of the time, we now know that Japan was about to
surrender, what makes sure that the bombing was motivated by the necessity of power
demonstration in front of the URSS, as a strategy to avoid its growing (MOURÃO, 2005,
p. 683).
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