Kelsen's Legal Positivism and the Challenge of Nazi Law

Kelsen’s legal positivism has often been criticized for having supported the compliance of the
German judiciary with Nazi law. Especially Kelsen’s insistence on the separation of law and
morality was considered as a crucial deficiency. I reject that criticism. My argument is that
Kelsen’s thesis that law and morality constitute two distinct normative spheres seems
persuasive if one takes into account that the Nazi legal theorist’s program of a ‘unification of
law and morality’ served to extend the authority and power of the Nazi-regime. I criticize,
however, Kelsen’s relativist account of morality which made his position vulnerable to the
post-war objections that legal positivism provided no safeguard against the Nazi perversion of
law.