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The Distorted Jurisprudential Discourse of Nazi Law: Uncovering the ‘Rupture Thesis’ in the Anglo-American Legal Academy

Lavis, Simon (2018). The Distorted Jurisprudential Discourse of Nazi Law: Uncovering the ‘Rupture Thesis’ in the Anglo-American Legal Academy. International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique, 31(4) pp. 745–770.

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DOI (Digital Object Identifier) Link: https://doi.org/10.1007/s11196-017-9538-5
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Abstract

It has been remarked that the ‘rupture thesis’ prevails within the Anglo-American legal academy in its understanding of the legal system in Nazi Germany. This article explores the existence and origins of this idea—that ‘Nazi law’ represented an aberration from normal legal-historical development with a point of rupture persisting between it and the ‘normal’ or central concept of law—within jurisprudential discourse in order to illustrate the prevalence of a distorted (mis)representation of Nazi law and how this distortion is manifested within the discourse today. An analysis of the treatment of Nazi law in two major 50th anniversary publications about the 1958 Hart–Fuller debate, and a review of representations of the Third Reich within literature from the current discourse, demonstrates that the rupture thesis continues to be reproduced within jurisprudence. An examination of the role of Nazi law in the Hart–Fuller debate itself shows that it can be traced back to the debate, where it was constructed through a combination of conceptual determinism and historical omission. It concludes that the historical Nazi law has great significance for the concept of law, but neither positivism nor natural law has properly theorised the nature of the real Nazi legal system.

Item Type: Journal Item
Copyright Holders: 2018 The Author
ISSN: 1572-8722
Project Funding Details:
Funded Project NameProject IDFunding Body
PhD studentshipAH/I013404/1AHRC
Keywords: Third Reich; Jurisprudential discourse; Nazi law; Natural law; Positivism; Hart–Fuller debate
Academic Unit/School: Faculty of Business and Law (FBL) > Law
Faculty of Business and Law (FBL)
Item ID: 52984
Depositing User: Simon Lavis
Date Deposited: 25 Jan 2018 10:16
Last Modified: 08 Apr 2020 15:23
URI: http://oro.open.ac.uk/id/eprint/52984
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