Written Upon the Hearts of Men: Taking Natural Law Seriously for Combatting Tyranny
by William E. Braff
Lawyers Need to Study Tyranny (Because it Studies Us)
Could any person, born in an inauspicious time and place, become a Nazi? Could any society fall prey to the same institutional and moral decay that transformed the Weimar Republic into a regime of state-sponsored (and citizen-condoned) terror and murder? Questions of this sort should lead us to reflect on the nature of human beings and society, such as whether we share an innate ability for evaluating social justice. Answering these big picture questions depends, in part, on our response to natural law’s claim that humans can access a fixed moral code independent of time, place, and culture.1 Under this theory, human beings must reject laws and regimes that violate this shared conception of justice. It follows that natural law theory rejects the claim that governments and laws derive legitimacy simply from a legislative or electoral process. From that perspective, pithily stating “law is law” ignores the human capacity for identifying and abiding by fundamental moral truths.2
These philosophical considerations may strike the legal practitioner as mere academic navel gazing. But that response ignores the hazard of a legal profession that fails to seriously reflect upon the moral infrastructure necessary for resisting the onset of tyranny and state-sponsored atrocities. After the horrors of the twentieth century, lawyers need only look to the mass graves in Cambodia and extermination camps at Auschwitz to grasp the devastating consequences of a society unmoored from common notions of justice.3 When a government denies its citizens, or a subset of citizens, basic protections, procedures, and rights, it falls upon the legal profession to stymie those deprivations and bring injustices to attention both at home and abroad.
From antiquity to modernity, despots and tyrants have frequently expressed disdain for lawyers.4 Civil rights and legal processes prevent tyrannies, spanning from tyranny of the mob to tyranny of the despot, from fulfilling their essential function: doing whatever they want to whomever they want, whenever they want.[5] So we shouldn’t be surprised that many societies rejected Roman law “above all for [its] formal procedures,” as Montesquieu, a French philosopher best known for his treatise The Spirit of the Law, tells us. 6 Responding unfavorably to the concept of written laws and procedural guarantees, one Germanic tribe, Montesquieu writes, “cut out lawyers’ tongues and said ‘Viper, stop hissing.”7 If the legal profession wants to keep its collective tongue, then discussing the nature and weaknesses of tyranny must be a priority in the legal community. This is as true today as it was in Montesquieu’s time. Caught in this ancient conflict, the responsible lawyer must study the ends and vulnerabilities of tyrannies or accept culpability for failing to prevent government-sanctioned atrocities.
Although our legal system aims to protect rights and procedures, there is no surefire guarantee that it will be good or just. Tyrants, liberators, radicals, and conservatives alike compete to use law to implement their preferred policies. So invocations of the law itself, perhaps under the slogan of law and order, are not dispositive of good or just intentions. To explore the relationship between justice and positive law, this Article begins by reviewing the teachings of twentieth century political philosophers Leo Strauss and Gustav Radbruch on natural law and the Nazi regime. Next, this Article tackles the process of applying a natural law framework to tyrannical regimes, referring both to proponents and resistors of tyranny. Distinguishing between the two, this Article contends that natural law arguments are more compelling when resisting an unjust regime than when defending such a regime. By drawing upon universal principles and rights, natural law lends itself to combatting injustices and not perpetuating them. Looking to Nazi Germany as a case study, this Article promotes taking natural law seriously as a safeguard against tyranny and government-perpetrated horrors.
Applying Natural Law to History: Reflections of Strauss and Radbruch on Nazi Germany, Despotism, and Legal Philosophy
Law does not arise spontaneously from the void or flow from a divine fount. So establishing a regime requires creating a legal system that reflects a common moral code, i.e., agreements about what constitutes the good society.8 That means, society arises from “an association of people who are joined together by a sense of common ends . . . and whose highest end is to cultivate an understanding of justice and morals among their own members.”9 To further this project, societies develop laws to enforce and inculcate shared moral teachings and principles.10 In short, our knowledge of right and wrong ideally informs lawmaking—not the other way around. Even so, the twentieth century provides a cautionary tale about how a despotic government can debase this approach by creating a state-imposed morality, which tends to result in death, terror, and dehumanization. This Section reviews the works of two scholars, Leo Strauss and Gustav Radbruch, to understand the interplay between tyranny, law, and human nature. That matters because grasping the relationship between legal positivism, natural law, and despotism helps lawyers diagnose and combat state-sponsored injustices.
Strauss, perhaps the preeminent natural law scholar of our time, began his project of revitalizing the Western natural law traditionby studying the rise of Nazi Germany and the global failure to swiftly diagnose Hitler’s tyranny for the terror it was. Born into a German-Jewish family at the turn of the twentieth century, Strauss fled Europe to escape Nazism and anti-Semitism.11 Inspired by the failure of “present-day political science” to “grasp tyranny as what it really is,”12 Strauss penned On Tyranny to analyze the difference between ancient and modern tyranny. On Tyranny begins with Strauss’ exegesis of Xenophon’s Hiero, a dialogue in which Hiero, the tyrant of Syracuse, debates the difference between the tyrannical life and private life with the poet Simonides.13 By turning to the classical understanding of tyranny, Strauss explores why Western nations were slow to recognize Nazism as a tyrannical scourge.14 He attributes this failure to political scientists relying on technical descriptors, such as dictatorship, totalitarianism, and authoritarianism, but lacking the philosophic or moral framework required for condemning a state as tyrannical.15
Strauss remarks that tyranny cannot be equated with lawlessness, arguing that Xenophon’s Hiero reveals the gap between justice and order.16 In other words, an authoritarian state may produce a good and just life for its citizens whereas tyranny and despotism cannot.17 To distinguish between tyrannies and healthy regimes that are not accountable to citizens, a lawyer or political scientist needs an independent standard for evaluating the justness or goodness of a state. Shocked that the rise of Nazism “did not lead to renewed interest” in scholarship devoted to understanding how thinkers from the “classical period” viewed natural law or the nature of tyranny, Strauss turned to Xenophon’s Hiero as a touchstone for analyzing tyranny.18 Through the lens of that dialogue, Strauss developed his thesis that the West’s shift from its natural law tradition to embracing positive law produced a pervasive relativism that cannot distinguish between good and evil regimes.
For Strauss, the hallmark of modern tyranny is reliance on a combination of technology, ideology, and science devoted to “the conquest of nature.”19 In other words, modern tyrants seek to reshape human beings and human nature, a feat never envisioned by classical tyranny.20 Regimes dedicated to the debasement and perversion of human nature, both at the individual and social level, deserve the label of tyranny regardless of whether they are authoritarian, democratic, socialist, or so on. By using the state to reprogram the thoughts, desires, and relationships of human beings, Strauss argues that modern tyrannical regimes, like Nazi Germany, aspire to become perpetual and universal replacements for preexisting moral codes.21 Although classical political philosophers, embodied by the ancient Greeks, recognized that tyrants may wish to pursue a reprogramming of human beings and human society, they rejected that project’s possibility. That’s because they believed human nature, given our status as political animals with an innate sense of morality, could not be altered by even the most capable tyrant.22 Only in modern times do tyrants view their subjects as fundamentally malleable. This account of modern tyranny illuminates Strauss’ contention that tyranny stems from a rejection of the natural law tradition.23
In Strauss’ corpus, the cardinal sin of modern political thought is the rejection of natural law and natural right. He begins Natural Right and History by observing that all societies possess distinct customs, laws, and institutions. Given this deduction, there are two possible responses: (1) either all ways of life, ranging from democracy to aristocracy to cannibalism to incestual societies, are equally justifiable, or (2) some ways of life are better, i.e., more just, than others.24 Strauss grounds his argument on man being an evaluative creature, meaningthat humans can think through whether practices are good or bad, both comparatively and objectively. From this insight, Strauss concludes that men are naturally drawn “to look for a standard with reference to which we can judge of the ideals of our own as well as of any other society.”25 Natural law functions a neutral touchstone for comparing regimes and laws, meaning knowledge of natural law is the only solution to “the problem posed by the conflicting needs of society.”26
Natural law, as understood by Strauss, “is connected with a teleological view of the universe” where “[a]ll natural beings have a natural end . . . which determines what kind of operation is good for them.”27 Thus, modern philosophy’s rejection of natural law creates grave consequences because it leaves mankind without a guide to the good life.28 After surveying the origins of modern political thought and the failure of modern states to swiftly condemn Nazi Germany as tyrannical, Strauss concludes that the modern liberal regime produces “bourgeois” citizens who “lack the greatness of soul of the ancients.”29 For that reason, modern political thought, divorced from classical concepts of human teleology and virtue, suffers an “absorption of natural right by the positive law.”30 This supremacy of positivism over natural law in modern political thought constitutes a crisis of moral identity, as it becomes impossible to make objective claims about justice.31 For Strauss, only a revitalization of the West’s natural law tradition will properly equip lawyers and lawmakers for opposing the atrocities and unjust regimes of tomorrow.32
While Strauss’ insights come to us in the form of political philosophy, his reflections on the breakdown of civil society in the twentieth century reverberate with German legal philosophy from that period. Gustav Radbruch, arguably the most renowned German legal theorist of his era, survived the rise and fall of the Nazi regime. Before the ascendance of Hitler and the breakdown of German civil society, Radbruch espoused legal positivism. He opined in 1932 that “the professional duty of the judge [is] to validate the law’s claim to validity, to sacrifice his own sense of right to the authoritative command of the law, to ask only what is legal and ask not if it is also just.”33 While some scholars debate whether Radbruch completely embraced legal positivism before the Nazi takeover of the German legal system,34 the commonly accepted theory is that Radbruch abandoned his positivistic outlook in favor of natural law only in response to his experience during Hitler’s reign.35 For instance, Radbruch’s first post-World War II publication states: “There are, therefore, principles of law that are stronger than any statute, so that a law conflicting with these principles is devoid of validity. One calls these principles the natural law or the law of reason.”36 Yet Radbruch limits the application of the external standards of justice provided by natural law theory to extreme political scenarios, such as “the altogether unique circumstances of the twelve Nazi years.”37 With this caveat, Radbruch asserts a connection between resisting tyranny and embracing natural law principles.
Radbruch’s legal theory echoes Strauss’ political philosophy: both scholars agree that a positivist understanding of law cannot sufficiently guard against tyranny and, thus, renders society vulnerable to a capable despot. Tyranny, at least as it appears in modern times, aspires to distort citizens’ views of nature and justice by rejecting any standard of decency aside from what the state announces. Otherwise stated, despotism denies any relationship between law and morality. But natural law grounds itself in a shared human morality and rejects regimes that breach our fixed moral standards. Drawing on this approach, Radbruch concludes: “Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely ‘false law,’ it lacks completely the very nature of law.”38 While positive law can, at times, prove sufficient to produce justice and a functioning civil society, turbulent political environments may produce regimes, like Nazi Germany, incapable of tracking any recognizable moral code. Under such conditions, citizens cannot merely accept the regime’s laws as valid and just. Looking at the reflections of Radbruch and Strauss on Nazi Germany, natural law appears to be a viable mechanism for challenging the injustice of another regime.
Admittedly, the writings of Strauss and Radbruch on the relationship between positivism, natural law, and tyranny might at first strike lawyers as airy theorizing divorced from the realities of lawmaking and legal advocacy. But the debate about natural law cuts to the core of developing a contemporary jurisprudence that accounts for the state-sponsored horrors of the past century. For instance, if law is valid simply because it complies with legislative formalities, as legal positivism concludes, on what basis could we conclude that state-endorsed genocide is wrong? After all, Nazi, Germany went through the motions of codifying many of its injustices before executing crimes against its own citizens. Strauss and Radbruch present lawyers a language for articulating why murders and dehumanizing acts committed by a tyrannical state are still crimes even when the perpetrator declares them to be legal.39
An Appeal to Nature: Understanding Why Claims of Natural Law Align with Resisting, as Opposed to Implementing, Tyranny
Even granting Strauss and Radbruch’s contention that insufficient respect for natural law opens the door for tyranny, many obvious questions remain if we wish to use their insights to bolster our legal system. Most devastating to the natural law project is the observation that we lack a neutral, omniscient arbiter for settling claims of natural law and natural right.40 For instance, consider the hypothetical situation of a citizen claiming his or her regime violates natural law while the regime asserts its laws adhere to a universal, objective standard of justice.41 This conflict, at least in a despotic state, would almost certainly be resolved by the government’s monopoly on power, not the justice of the state’s laws as judged by a natural law standard.42 From this exercise, we see that a regime can invoke natural law just as easily as those resisting the regime may cite the natural law to declare the regime unjust. To overcome this impasse, we must understand tyranny and why natural law functions not as a rhetorical strategy equally viable for tyrannies and their resistors, but as a kryptonite uniquely constituted to combat despotism.
Many nations, in both Western and non-Western regions, recognize the right to resist an illegitimate or overreaching government.43 Generally, this right arises when a regime abuses its citizens and offers no valid legal remedy to oppose noxious state action.44 From Chinese jurisprudence to Blackstone to the American Founders, many thoughtful observers of legal systems have found a right of resistance in the natural law concept of fixed ethical standards that limit state action.45 Considering that these diverse political traditions all invoke the right to resist tyranny and the concept of an external repository of justice independent of codified law, it seems the kinship between resistance and natural law cuts across cultures. As a result, those resisting tyranny instinctively draw on the natural law principle that certain actions taken by a regime, such as ethnic cleansing and creation of an aggressive secret police apparatus, trigger the right to rebel.
Given the compatibility between resisting tyranny and natural law jurisprudence, the lack of a neutral arbiter for natural law claims becomes less important, if not moot. When those resisting tyranny invoke the right to rebel, they draw upon a principle with deep historical roots accepted by numerous and diverse cultures. This form of resistance occurs in sharp distinction from the erasure of rights pursued by tyrannies. For instance, the revocation of German civil rights and the creation of special courts under the purview of the Gestapo and the SS occurred under the guise of legality.46 These steps, taken towards the despotic goal of creating an unopposable regime, could not be justified by any external code of justice or morality. Modern tyrannies, in their goal to distort human nature and our inclination towards justice and fairness, take legal action inimical to natural law—those regimes seek to become the sole standard for justice and injustice. So natural law claims strike tyranny at its foundation because natural law theory asserts external, fixed standards for morality and justice that cannot be twisted or ignored by the state. The logic of natural law thus cuts against the core elements of tyranny, making it a powerful tool to resist despots who wish to operate outside any code of conduct other than their own.
Rejuvenating the American Natural Law Tradition
Hearing words like genocide, ethnic cleansing, gas chambers, death camps, and secret police evokes a visceral reaction. It is nearly unfathomable for someone to visit a mass gravesite, such as Auschwitz-Birkenau, and not conclude that the horrors that transpired on that ground were not only evil, but universally condemnable by any legitimate conception of morality or justice. As a FASPE Law Fellow, I embarked on an intensive three-week study of the Holocaust. This program included visits to concentration camps, including Auschwitz-Birkenau and Sachsenhausen, accompanied bya detailed study of German society and law during the Nazi era. After viewing the death camps and grappling with what it means that millions of men, women, and children were lawfully driven from their homes and summarily executed, it became painfully clear that the positivist claim that “law is law” simply cannot pass muster as compatible with civilized society.47 Never again.
That said, the legal field should not reevaluate its core jurisprudential tenets based merely on habits of the heart and subjective notions about what is just, unjust, or tyrannical. Yet tyranny poses a grave threat to lawyers because it demands the rejection of a legal system that restricts the state in any meaningful way. Taking this threat seriously, lawyers need to be equipped with a robust framework for identifying and opposing tyranny. Understanding that tyranny's calling card is reshaping societal morality in the most amenable way for the regime to achieve its goals,48 those who wish to resist tyranny must accurately understand the relationship between human nature, justice, and law.
Even if the legal community decided to agree that natural law jurisprudence effectively combats tyranny and offers fuel for the resistance of despotism, this theoretical approach must be put into effect if we are to profit from it. Considering natural law has essentially been dead letter in American jurisprudence since the end of the Lochner era,49 courts and academics may balk at a return to a natural law perspective. And critics of natural law accurately contend that natural law conflicts with a consistent reliance on text and precedent, meaning natural law jurisprudence may introduce some instability and unpredictability into our legal system.50 Yet this criticism usually comes from scholars writing and living in a functional democracy that generally respects human rights and dignity. Were these scholars to live under an unjust regime, it is far from certain they would defend adherence to that regime’s texts, precedents, and procedures. As Radbruch reminds us, exceptional historical times do exist where the positive law of a regime no longer aims to produce a good and prosperous society. When these circumstances arise, lawyers need to be equipped to challenge a tyrannical regime at a foundational level rather than fight the regime in the regime’s own courts. To be sure, American legal educators and lawyers should broaden their jurisprudential horizons and reexamine ournatural law heritage, especially given recent concerns about burgeoningfascism in America and Europe. Although demanding a paradigm shift in the legal academy and on the bench might be overly ambitious, galvanizing grassroots interest in natural law jurisprudence among law students, academics, and practitioners would be a wise first step.
William E. Braff is a 2019 Law Fellow. He clerks for the Honorable John B. Nalbandian of the United States Court of Appeals for the Sixth Circuit. He received his J.D. from the Ohio State University Moritz College of Law in 2019.
Notes
1. Heather Leawoods, Gustav Radbruch: An Extraordinary Legal Philosopher, 2 Wash. U. J.L. & Pol’y 489, 490 (2000) (“Natural law reflects and can be captured in terms of a morality thesis, which holds that law and morality are necessarily connected. Laws are identified as legally valid only if they comport with morality; when morality conflicts with a law, the law is deemed to be invalid.”).
2. Douglas G. Morris, Accommodating Nazi Tyranny? The Wrong Turn of the Social Democratic Legal Philosopher Gustav Radbruch After the War, 34 Law & Hist. Rev. 649, 650 (2016) (“As a matter of history, Radbruch excused Nazi-era judges who had missed his jurisprudential point, because they had succumbed to the legal theory of positivism that had long permeated German legal thinking. ‘Positivism,’ Radbruch wrote, ‘with its belief that ‘law is law’ rendered the German judiciary defenseless against arbitrary and criminal laws.’”).
3. These atrocities cannot be separated from the realm of ideas. For instance, failure to ignore the dangers of relativism has been particularly dangerous in modern times. We see this in Gertrude Himmelfarb’s account of Heidegger. She writes: “Looking into the abyss of philosophy, one might say, Heidegger saw the beasts of Nazism and found them tolerable [because he was] . . . [d]ivorced from any ‘essential’ truth, from any practical morality, and from the political consequences of his own philosophy.” Gertrude Himmelfarb, On Looking into the Abyss: Untimely Thoughts on Culture and Society 16–17 (1994).
4. See, e.g., John W. Brabner Smith, Hitler Hated Lawyers: A Story of Resistance to Tyranny, 43 Am.Bar Ass’n J. 1105, 1105 (1957) (“Hitler hated lawyers as he did horses. They represented a society where he did not ‘belong’ and which frequently thwarted Nazi projects. As late as 1941, Hitler, in a public address, bitterly excoriated the legal profession for ‘obstructing’ Nazi ideas of justice and threatened those who continued to resist his platform.”).
5. Alexis De Tocqueville, Democracy in America 273 (Phillips Bradley ed., Alfred A. Knopf 1972) (1835) (“Men who have more especially devoted themselves to legal pursuits derive from those occupations certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude.”).
6. Montesquieu, The Spirit of the Laws 308 (Anne M. Cohler, Basia C. Miller and Harold S. Stone, eds. 1989) (1748).
7. Id.
8. George Anastaplo, Human Being and Citizen 74 (1975) (“Law depends on a sense of morality among citizens: the law, in turn, promotes morality.”).
9. Hadley Arkes. First Things: An Inquiry Into the First Principles of Morals and Justice 14 (1986).
10. Id.
11. See Stephen F. Feldman, Democracy and Dissent: Strauss, Arendt, and Voegelin in America, 89 Denv. U. L. Rev. 671, 674–75 (“By the end of the 1940s, Strauss, Arendt, and Voegelin were established political philosophers within the American intellectual community . . . While in Europe, they had not only witnessed the collapse of the democratic Weimar Republic into Nazi totalitarianism, they had suffered personal hardships and dislocations because of the Nazi perversions of the state. Strauss and Arendt fled Germany because they were Jews . . . From their vantage, American democracy was too fragile to leave unexamined.”).
12. Leo Strauss, On Tyranny 23 (1948).
13. Id. at 3.
14. Id. at 23 (“[W]hen we were brought face to face . . .with a kind of tyranny that surpassed the boldest imagination of the most powerful thinkers of the past—our political science failed to recognize it.”).
15. Id.
16. Id. at 74 (“[T]he identification of ‘just’ and ‘legal’ would make impossible the evidently necessary distinction between just and unjust laws.”).
17. Strauss gives the example that a king may have absolute discretion over the law, but we do not consider all kings to be tyrants. Only the unjust deeds or the malevolent nature of a ruler warrant condemnation as befits tyranny. See id. at 75.
18. Id. at 23.
19. Id. (“In contradistinction to classical tyranny, present-day tyranny has at its disposal ‘technology’ as well as ‘ideologies’; more generally expressed, it presupposes the existence of ‘science,’ i.e. of a particular interpretation, or kind, of science. Conversely, classical tyranny . . . was not meant to be applied to the ‘conquest of nature’ or to be popularized and diffused.”).
20. Id.
21. Id. at 27.
22. Id. at 128.
23. Id. at 210 (observing that by rejecting the classic view that human teleology is possible, modern political philosophy “lower[s] the goal of man” by denouncing the belief in “a stable standard by which to judge of any actual order”).
24. Leo Strauss, Natural Right and History 3 (1953).
25. Id. (“But the mere fact that we can raise the question of the worth of the ideal of our society shows that there is something in man that is not altogether in slavery to his society, and therefore we are able, and hence obliged, to look for a standard with reference to which we can judge the ideals of our own as well as of any other society.”).
26. Id.
27. Id. at 7.
28. Id. at 3–4(“[T]he rejection of natural right is bound to lead to disastrous consequences . . . It admits being unable to help us in discriminating between legitimate and illegitimate, between just and unjust, objectives.”).
29. Id. at 253.
30. Id. at 286.
31. See Corrine Pelluchon, Leo Strauss and the Crisis of Rationalism 256 (Robert Howse trans., 2005) (“Strauss . . .claims that the crisis of our times is the crisis of the West and that this has to be understood in terms of the history of thought. But for Strauss, the crisis of our times is a crisis of political philosophy, it is linked to the disappearance of political philosophy.”)
32. The capacity of America to adequately appreciate the import of natural law remained an open question for Strauss. Immediately after citing the Declaration of Independence’s natural law language of self-evident truths and unalienable rights, Strauss ponders: “Does this nation in its maturity still cherish the faith in which it was conceived and raised?” Leo Strauss, Natural Right and History 1 (1953).
33. Gustav Radbruch, Legal Philosophy, in The Legal Philosophies of Lask, Radbruch, and Dabin 119 (Kurt Wilk trans., 1950).
34. Leawoods, supra note 1, at 495.
35. Id. Scholars generally agree that Radbruch transformed his thought after living through the twelve-year period of Nazi rule in Germany and classify his post-World War II writings as more amenable to natural law.
36. Gustav Radbruch, Five Minutes of Legal Philosophy, in PHILOSOPHY OF LAW (Joel Fienberg & Hyman Gross eds., 1991).
37. Leawoods, supra note 1, at 502.
38. Gustav Radbruch, Statutory Non-Law and Suprastatutory Law (Bonnie Litschewski Paulson & Stanley L. Paulson trans., 1993).
39. As Hadley Arkes explains:“Any man who understood what Hitler did, understood the most fundamental things he had to know in order to come to the understanding of why genocide is wrong . . . With all of our inclinations these days to seek the sociological or nonmoral explanation for oral systems, we often overlook an explanation that must remain immanently plausible: that certain people do injustice not because the fail to understand what they are doing, but precisely because they do understand. They do it for their own gain or aggrandizement, and they may do it for the sadistic pleasure they find in the suffering of others. They may do it, in some cases, for the love of evil itself.” Arkes, supra note 9, at 156–57.
40. See Lino A. Graglia, Lawrence v. Texas: Our Philosopher-Kings Adopt Libertarianism as our Official National Philosophy and Reject Traditional Morality as a Basis for Law, 65 Ohio St. L.J. 1139, 1145 (2004) (“The advantage of a natural law theory, John Hart Ely cleverly pointed out, is that ‘you can invoke natural law to support anything you want. The disadvantage is that everybody understands that.’”).
41. Yet we need not even resort to hypotheticals. The Nazi regime did just this. See Elle Gilley, Illegal Laws and Legal Crimes: An Introduction to a Lawyer’s Opposition to Hitler, 2 FASPE Final Project J. 17, 18–19 (2011) (describing how “the Nazis had already co-opted natural law reasoning” by the mid-1930’s).
42. John Locke addresses this issue directly, stating that in regimes where “a barefaced twisting of the laws so that they protect or even reward the violence or injuries perpetrated by some men or some party of men,” which constitutes a “manifest perversion of justice,” creates a scenario where injustice is “dressed up in the name, claims, or forms of law.” In such a scenario, which can be described as living under tyranny, citizens have “nowhere on earth to appeal to justice, meaning the “only remedy in such cases [is] an appeal to heaven.” John Locke, Two Treatises of Government § 168 (C.B. Macpherson ed, 1980) (1690).
43. Tom Ginsburg, Daniel Lansberg-Rodriguez and Mila Versteeg, When to Overthrow Your Government: The Right to Resist in the World’s Constitutions, 60 UCLA L. Rev. 1184, 1191 (2013) (“The right to resist has a long history in political theory and has been a feature of political thought in different societies, ranging from ancient China to the American founding. Where it has appeared, the right to resist has been tied to the notion that people can legitimately resist their government in certain situations.”).
44. Id. at 1191–92.
45. See id. at 1196–1207.
46. Norman L. Greene, Nazis in the Courtroom: Lessons from the Conduct of Lawyers and Judges Under the Laws of the Third Reich and Vichy France, 61 Brook. L. Rev. 1121, 1132–34 (1995).
47. We can observe a similar problem caused by relativism and positivism in the discipline of history. See Himmelfarb, supra note 3 at 142–43 (“Hard cases, it is said, often make bad law. History, however, too often consist of hard cases, and historical methods are designed to accommodate them. For all historians, traditional and ‘new’ alike, the hardest case in modern history is surely the holocaust. It is especially hard for postmodernists, who face the prospect of doing to the Holocaust what they do to all of history—relativizing, problematizing, ultimately aestheticizing or fictionalizing it . . . It is this ‘revisionist’ thesis that postmodernists would like to avoid. But they can only do so by the kind of verbal legerdemain that is their stock-in-trade—and that has created the problem in the first place.”).
48. Walter R. Newell, Tyranny: A New Interpretation 26 (2013).
49. Hon. Diarmuid F. O’Scannlain, Natural Law in the American Tradition, 79 Fordham L. Rev. 1513, 1515 (2011) (“Lochner, and similar cases of that age, were seen as instances of ‘natural law reasoning.’ Thus, criticism of “the Lochner era” became bound up with criticism of the natural law. And, by the time Griswold v. Connecticut was decided, all nine of the Justices had decried the use of the natural law in judging.”).
50. Id. at 1514–15. (“Others believe that natural law, regardless of its existence or its historical pedigree, is dangerous. Their concern is that natural law might empower judges to base decisions on their own sense of justice, rather than relying on traditional legal sources such as text and precedent.This last thread of criticism is hostile to natural law, not merely apathetic. It asserts natural law concerns are antithetical to responsible judging.”).