In understanding the conclusions of d’Entreves, it is crucial to understand what legal positivity refers to in Law. According to Leslie & Thomas, (2019), legal positivism refers to a concept of Law that defines Law as a factor of social facts rather than the merits of determining guilt or innocence of people. After the defeat of Germany and its allies in the Second World War, the Soviet Union, Great Britain, the United States, and France held a meeting in London, whereby they wrote a charter (Facing History, 2020). In this Charter, the allies had incorporated an international court, which would be held responsible for putting the surviving Germany leaders into trials. The Charter established that the Germany leaders would be judged based on war crimes, crimes against the peaceful existence, and crimes against human nature (Facing History, 2020). Many leaders of the then Nazi nation, German, were held accountable for the war, with the allied forces, establishing the Charter to convict them. However, these Nazi leaders were given a chance to choose lawyers who would represent them in the tribunal. After the tribunal had finished its job, numerous reactions from the world, some people felt that the tribunal had violated the positive Law. In contrast, the other group felt the action was necessary for curbing future trends. Connectedly, this paper discusses the various dynamics in the Nuremberg trial, by considering d’Entreves say on the matter.
D’Entreves views the tribunal’s act as overstepping the positive law boundaries. D’Entreves had numerous reasons for this calling, with the international community using positive Law to judge members of a sovereign nation. The international Law requires member-states to submit part of their sovereignty to the authority of the International Law. German being a sovereign state, it was undoubtedly wrong for the tribunal to stage the trials. The legal positivism concept states the importance of states in determining evils and good deeds within the country. The international community, represented by the allied forces, forced this Law into Nazis who, according to their country, their acts were right. Thus D’Entreves views this the Nuremberg trial as overstepping because it put members of a sovereign nation into the trial.
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D’Entreves says the tribunal in Nuremberg overstepped for various reasons. First, the allied forces unfairly indicated the Nazi leaders, with assumptions that they had committed numerous crimes. While it is evident that the Nazi leaders had committed these crimes, the Law never existed before this period. It is unfair to judge people on non-existing Law, and thus the tribunal overstepped in indicting the Nazi leaders. Facing History (2020) establishes that before the formation of this tribunal, the Law never existed, and the Nazis were not guilty of their actions. In his argument, d’Entreves sees this act as overstepping the Law of positive laws boundaries.
Judging of German citizens, the Nazis, by their counterparts in the allied forces, was against the natural Law. In his generation of the positive Law, Austin established that the positive Law was to take place within some boundary constraints. Germany was a sovereign power, and the allied forces were too sovereign nations. It was against the positive Law for the allied forces to put German citizens, who represented Germany in the trial. I the allied powers would judge Germany on positive Law as argued by Austin, then both the allied forces and Germany were not sovereign nations. Since both the allied forces and Germany were sovereign nations during the war and the trial, this was an act of overstepping the boundaries entailed in positive Law.
Morality plays a crucial part in justice systems, and during this era, the Nazis were judged based on their moral constraints. Morality not being a necessary component of the world’s Law, it is critical to consider the reason for the formation of the tribunal. Before this tribunal, there was no existence of Law as Wyzanski, (1946) notes. The formation of this tribunal was fundamentally driven by the need to instill morality in the world by punishing the Nazi leaders.
The question of national Law versus the international Law was at stake in this scenario, with the allied forces forging forward with the international Law, and the German counterparts advocating for resolving the issue using the national Law. Before the tribunal formation, international lawlessness was a massive challenge to the world, and thus, the allies used it as an avenue to judge the Nazi leaders.
Justice, as used by d’Entreves, was the reason for overstepping the boundaries. By adopting the principle, “Nullun Crumem sine poena,” the allied forces had already determined the fate of the Nazi leaders. If the tribunal was formed on a fairground, then the mandatory punishment for crimes could not have been adopted. Based on justice systems, a fair trial does not involve pre-determined conditions, as used by the allied forces to force the Nazis into being punished by the newly formed tribunal.
According to the argument developed by d’Entreves, the champions of the Natural Law were the Nazi leaders were the champions of the positive Law. Nazi Germany, all through world wars, used the legal positivism laws to conduct its executions. In his argument, Mauser (2018) establishes that the Nazis used legal positivism philosophy to eliminate unwanted people within German society. According to Mauser (2018), this Law was applied to justify the acts of killing more than 2o million people across the world during the Second World War (Mauser, 2018). More than 6million Jews were killed in this campaign, with the disabled, and non-beneficial people in German society being subjected to death. The legal positivism philosophy justified these acts, stating that German saw this as a good deed. In its trial, the tribunal formed by the allied forces used the same concept to judge its champions, the Nazis. The tribunal established that, according to international Law, it was evil to commit crimes against humanity and disrupt peace among other war crimes. Based on these newly developed international laws, the Nazis were wrong to have initiated the war. Thus it is evident that d’Entreves refers to the Nazis when he says the champions of the philosophy.
D’Entreves’ argument undoubtedly proves that he supports the traditions laid in Natural Law. According to d’Entreves, a society without Law is a jungle, and thus the natural Law must apply to stop the occurrence of crimes. In his argument in support of this Law, d’Entreves views natural Law as a changing component, thus new laws must be developed to curb the emerging crimes in the society. Natural Law is highly connected to the moral affiliations of the society, while positive Law refers to the laws developed by a government to protect its people. By defending the principle, “nullum crimen sine poena,” d’Entreves advocated for the natural Law, whereby morality defines all forms of crimes. D’Entreves sees society as being governed by both positive and natural laws.
References
Facing History. (2020). Holocaust and Human Behavior: Chapter 10, Establishing the Nuremberg Tribunal. Facing History. Retrieved from, https://www.facinghistory.org/holocaust-and-human-behavior/chapter-10/establishing- nuremberg-tribunal
Leslie, G. & Thomas, A. (2019). Legal Positivism. Stanford University. Retrieved from, https://plato.stanford.edu/entries/legal-positivism/
Mauser, B. D. (2018). The Holocaust and Natural Law. Southern Evangelical. Retrieved from, https://ses.edu/the-holocaust-and-natural-law/
Wyzanski, E.C. (1946). Nuremberg: A Fair Trial? A Dangerous Precedent. The Atlantic. Retrieved from, https://www.theatlantic.com/magazine/archive/1946/04/nuremberg-a- fair-trial-a-dangerous-precedent/306492/
