THE NUREMBERG TRIALS AND THE PURE THEORY OF LAW

Abstract

This essay approaches the historic context in which two theories have developed and enabled the judicial accountability for the violations of human rights occurred during the Second World War. The analysis focuses (I) on Hans Kelsen’s the Pure Theory of Law (PTL) and (II) on “Radbruch’s Formula”, addressing the accusations that the legal positivism colluded with the Nazi regime, leaving the German judges “powerless”. The hypothesis is that the link between Kelsen’s positivism and the crimes committed by the Nazi regime does not find support neither (I) in the historical process, therefore in the external elements of Kelsen’s Theory, related to his intellectual life, nor (II) in the fundaments of his PTL. Furthermore, this study analyses the Nuremberg Trials in their historical conjuncture, as well as Radbruch’s critiques to Kelsen’s legal positivism and the latter’s critiques to the Trials of Nuremberg.