Legal Reasoning and Positive Law
Paper Type: 1#essay
Subject: Law
Pages 2 (550 Words)
Sources 4
Spacing Double
Citation APA
Academic Level Undergrad
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In his book Natural Law, the noted European legal philosopher A.P. d’Entreves asserted the following concerning the Nuremberg trial of Nazi leaders after World War II:
\”No doubt the provisions for the Nuremberg Tribunal were based, or purported to be based, on existing or ‘positive’ international law.
\”But I strongly suspect that the boundaries of legal positivism were overstepped, and had to be overstepped, the moment it was stated that the trials were a \’question of justice.\’ The principle nullum crimen sine poena (no crime without punishment), on which the sentences were grounded, was a flat contradiction of one of the most generally accepted principles of positive jurisprudence, the principle of nulla poena sine lege (no punishment without law).
\”Thus, after a century of effort to eliminate the dualism between what is and what ought to be from the field of legal and political experience, natural law seems to have taken its revenge upon the very champions of the pernicious doctrine that there is no law but positive law, or that might equals right, since for all practical purposes the two propositions are perfectly equivalent.\” (pp. 106-107)
Directions for assignment:
Write an essay in which you answer the following questions:
Why is d’Entreves saying that the Nuremberg trial \”overstepped\” the boundaries of positive law?
How, according to d’Entreves, did that trial do so?
Who might be the \”very champions\” of positive law that d’Entreves is addressing here?
Is d’Entreves defending or attacking the tradition of natural law? What does he imply about law and society, natural versus positive law, if he is defending the principle nullum crimen sine poena (no crime without punishment)?
