Unconditional legitimacy of Law: collaboration with the Nazism
| Autor | Álvaro Ricardo de Souza Cruz - Bernardo Augusto Ferreira Duarte |
| Ocupação do Autor | Procurador da República em Minas Gerais - Advogado |
| Páginas | 2397-2423 |
Working Group: History of Law • 2397
Unconditional legitimacy of Law
Collaboration with the Nazism
Álvaro Ricardo de Souza Cruz1
Bernardo Augusto Ferreira Duarte2
Abstract: The present paper has the objective of discussing one of the greatest
critics to legal positivism: the one that says that this theory has “cooperated”
with the Nazi regime. This work boards and discusses many critics about posi-
tivism, its problems on its many faces, and its oppositions (post-positivism and
jusnaturalismovercoming thesuperciality andgenerality ofsome of them
through the discursive rationality. It even analyzes the absence of a real dia-
logue between positivists and post-positivists, who do not seek to comprehend
each other, as victims of their own paradigms. In the end, we wish to show our
alternativeviewguidedbyadierentrationalitydierentfromthejusnatural-
istRadbruchsformulathatinvolvesamoraldiscussionAlthoughisdoubtful
that positivism was a simple support to the Nazi regime, we could notice that
while the positivists see the Nazi system as a true “law”, and its outrages like
a mere narrative, we approach to the vision that does not accept this descriptive
narrationAdenitioncannotbeseparatedfromevaluationmainlyfromevalu-
ation of law’s legitimacy. We claim for the impossibility of an extreme injustice
to be called “law”, the impossibility of neutrality in law, and the impossibil-
ity of a detachment between the human being and his environment, just like
between Law and Morality. The main critic is against the positivist concept of
science. To us, science cannot be neutral, apart from reality, and only formal.
This positivist concept of science takes to unintended consequences such as the
“docilization” of people, immunization of juridical agents and, in the end, the
“legitimation” of totalitarian legal systems, enabled by the confusion that the
popular imagination make between legality and legitimacy. Every totalitarian
1
* Procurador da República em Minas Gerais. Mestre em Direito Econômico e Doutor
em Direito Constitucional. Professor da Graduação e da Pós-Graduação da Pontifícia
Universidade Católica de Minas Gerais. Vice-presidente do Instituto Mineiro de Direito
Constitucional. Membro do Instituto de Hermenêutica Jurídica (IHJ).
2
**Advogado. Especialista em Direito Constitucional pelo Instituto de Educação Conti-
nuada (IEC). Mestre em Direito Público na Pontifícia Universidade Católica de Minas
Gerias. Professor de Introdução ao Estudo do Direito e Teoria da Constituição do Insti-
tuto Metodista Izabela Hendrix.
2398 • XXVI World Congress of Philosophy of Law and Social Philosophy
regime has the veil of legality to base them. That is why, starting from Derrida,
Lévinas and Ricouer, we seek for a conception of science from “deformaliza-
tiondeconstructionandaestationopposedtotheformalityandthecertainty
of the positivist concept.
Keywords: Jusnaturalism; Positivism; deformalizationdeconstructionaesta-
tion; Post-Positivism;
In the Brazilian scenery, the debate about the possibilities of
overcoming the Positivist paradigm of Law is quite sharp. In general,
the critiques presented are (1) that it regards to a juridical thought which
is already outdated; (2) that its authors would be supporters of a me-
chanical application of the law; (3) that they would also be partisans of
an unconditional legitimacy of Law and of incoherent points of view, as,
forinstancetheunjustiedadherenceto theJusnaturalismThe ob-
jection according to which (5) the Juridical Positivism would have “con-
tributed” to the Nazi regime would also be usual. This kind of critiques
can be found in countless Brazilian texts of authors like Margarida Ca-
margo Lacombe Cláudio Pereira Souza Neto Mário Bigoe Chorão
Lênio Luis Streck, Ana Paula Barcellos, Paulo Bonavides, Lúcio Antônio
Chamon Junior, Ricardo Lobo Torres, among many others3.
This present article aims to go through the last objection with
alilemoreaentionAsitisknownitisverycommontolinkthear-
gument of the reductio ad hitlerum, according to which the positivism
somehow would have approved the Nazi regime, to the normative iner-
tia supported by the juridical positivists. By working with formal valid-
ity criteria and thus supporting the independence of Law in relation to
other social systems, such as Moral and Politics, positivism would have
worked as a driving force for nameless normative acts tobeadmiedin
the quality of “legal right”.
This critique, originally spread by Radbruch, was created in 1950
as a jusnaturalist reaction against the absurdities and atrocities perpe-
trated by the Nazi system, supposedly “in the name of Law”. According
to Gustav Radbruch, the moralist approach of Law would be absolutely
essential, as wherever there wasn’t at least a search for justice, that is,
where the equality (justice core) was deliberately betrayed in the cre-
3
For further details, refer to the book “Beyond Juridical Positivism” (2013), by the pres-
ent authors.
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