The Impossibility of an Exterminatory Legality: Law and the Holocaust

Discussions of Nazi law in legal philosophy are most commonly concerned with how the Nazis’ use of law as a means to persecute their opponents demonstrates the essential amorality of law. Attention is often also paid to the institutional debasements and interpretive excesses that characterized the operation of the Nazi political courts. Within these discussions, however, little or no consideration is given to the specificities of the Jewish experience of Nazi law, nor to the fact that the role of law in determining the nature and quality of Jewish life stopped short of the extermination program. In this article, the author seeks to correct this neglect by exploring the questions for legal philosophy, as well as for scholarship that probes the connections between law and the Holocaust, that arise from an examination of the Jewish experience of Nazi law. Drawing primarily upon the thought of the mid-twentieth-century legal philosopher Lon L. Fuller, the author investigates what the apparent shift from legality to terror within the Nazi persecution of the Jews might reveal not only about the institutional features of that persecutory program but also about the nature of legality more generally.