Kelsen’s Legal Positivism and the Challenge of Nazi Law

In this paper I examine Kelsen’s legal positivism in the light of Nazi legal theory. My claim is that Kelsen’s thesis that law and morality constitute two distinct normative spheres is highly plausible, but that some of his metaethical assumptions are seriously flawed. Kelsen’s insistence on the separation of law from morality seems much more persuasive if one takes into account the Nazi legal theorist’s program of a ‘unification of law and morality’.
The critique that legal positivism was responsible for the compliance of the German judiciary with the Nazi’s interpretation and use of law is not viable.
However, Kelsen’s relativist account of morality made his position vulnerable to the post­war objections that legal positivism provided no safeguard against the Nazi perversion of law.