The Second World War

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Following the end of the Second World War the Nuremberg War Trials were held to prosecute Nazi officials for the abhorrent crimes of the Holocaust. The defence of those charged hinged on the idea that they weren’t guilty of a crime as they were obeying the law of Nazi Germany . Consequently, the trial revived the broader question of whether laws which are inherently immoral can be considered valid law. Moreover, the trial generated fresh debate within jurisprudence, in turn leading many to criticise the previously prominent ideas of Legal Positivism , which in layman’s terms separated law from morality and credited as valid law any bill provided it had gone through the recognised legislative system of a sovereign . Instead, academics moved…show more content…
Despite its popularity during the 19th century , since the mid-20th century Austin’s explanation of law and morality has been frequently criticised for being too simplistic . The Command Theory rules that for a bill to be ‘laws properly so called’ it must be either expressly approved by the sovereign or allowed under the sovereign’s common law system. Consequently, Austin’s theory recognises heinous acts by sovereigns such as the racist laws of the South African Apartheid as valid.
Austin’s Command Theory dictates the requirements for a valid sovereign , although none of these refer to a moral requirement, or at least not expressly . Conversely, his explanation that a sovereign ‘is a determinate human superior’ may mean in practise that a certain moral element is required within a legal system, as a sovereign would not remain ‘habitually obeyed’ if it created and enforced laws which the majority of its citizens deemed to be unjust. On the other hand/in contrast, it must be remembered that the Nazi Party had indoctrinated its citizens to such an extent that they endorsed, or at least tolerated, policies which openly discriminated against Jewish citizens , thus meaning that the majority ‘habitually obeyed’ the sovereignty of the Nazis, despite the intrinsic immorality of such laws. Such examples have been used to support Legal Positivisms approach to morality, as the fundamentally subjective
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