Law and Morality under Evil Conditions: The SS Judge Konrad Morgen

In Anglo-American legal theory the issue of Nazi law has to a large extent been seen in light of the exchange between HLA Hart and Lon L Fuller in the 1958 issue of the Harvard Law Review. That discussion centred on a particular problem that arose in the aftermath of the Nazi regime, namely, under which statutes could conduct that seemed legal in the Third Reich but grossly immoral under post-war rule-of-law conditions be tried by post-war courts.

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The famous Grudge Informer Case raised the question of how denunciation for malicious personal motives should be tried by post-war German courts. Hart argued that there was no other solution than solving the case on the basis of retroactive legislation, while Fuller suggested that the issue should be handled on the premise that Nazi legal
statutes like the one applied in denunciation cases, the 1934 ‘Law Against Malicious Attacks on the State and the Party and for the Protection of the Party Uniform’, were
not law in any meaningful normative sense.

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The purpose of this article is not to take sides on the Grudge Informer Case. What is relevant for this paper is the framework in which the debate was situated and the implications it had for the perception of the problem posed by Nazi law. Given the obvious difficulty of rejecting Nazi legal regulations while granting ‘validity’ to any legal system whatsoever, the Grudge Informer Case was taken by many philosophers of law to show that the proper reaction to the distortions of the Nazi legal system was to tighten the connection between law and morality and declare Nazi laws not to be proper law. The upshot was that the issue of Nazi law was perceived mainly as a moral problem, less a legal problem.