The Law of Punching Nazis

5/9/2017

Vol 12, Issue 7

TOM BLAMEY

Seventy-two years ago, the United States of America led the free world to victory against fascism. More than 400,000 American men and women gave their lives so that Nazism could be crushed and their country—and the world—could be free.

A few weeks ago, in that very nation, a 32-year-old woman was killed and 19 others were injured for daring to protest against anti-Semitism, white supremacy and authoritarian rule.

This was an act of radical Nazi terrorism on US soil.

In spite of his strong man fixation on national security, President Trump's response to the Charlottesville attack was, in a word, limp. He refused on multiple occasions to outright condemn domestic terrorists. Instead, he laid blame on the counter-protesters who stood against violent ideology—and paid the blood price for their courage.

Is is now clear, if it was ever in doubt, that the current President of the United States is morally bankrupt.

Trump's actions show that his administration cannot be relied upon to prosecute the neo-nazism that is rising in America: the so-called 'alt-right'. Therefore, in the oldest of its traditions, it falls to America's people to fight for her freedom.

Naturally, the first tactics in this fight should be civil discourse and political action. But as history shows, the only language that Nazis know is violence. This prompts a question: if and when it becomes necessary, is it legal to punch a Nazi?

The answer depends on your view of what place morality has in the law. To butcher the Hart-Fuller debate, there are two schools of thought: positivism, which believes the law is utterly divorced from morality, and natural law, which sees morality as informing law—and vice versa.
If asked, Hart would say that punching Nazis is assault; that even if it is moral, it remains illegal. Fuller's perspective is more flexible. It accepts that laws can fail if they are unjust, which could permit a punch, but also sees them as morally instructive, which seems to tend against that conclusion.

The author prefers a third approach, as espoused by Weimer-era politician and jurist, Gustav Radbruch. (If you were a student of Professor Rundle's in Legal Theory last year, as the author was, you know his famous formula well.)

Radbruch's formula unifies the competing approaches. He accepts that the law generally stands distinct from morality: that it remains binding, even when unfair. However, he argues when "the discrepancy between the positive law and justice reaches a level so unbearable" the law must "make way for justice". He posits that positive law can become so immoral that it ceases to be law.

There are, unquestionably, epistemological issues with Radbruch's formula. Its flaws have been the obsession of generations of jurisprudence. But forget the ivory towers of academia for a moment (if that is possible in the literally elephant tusk coloured skyscraper that is 185 Pelham). Think of the real-world practicalities of this liberating hypothesis.

The problem: the enemies of freedom are marching on US soil. They rally against civil liberties and for the oppression of minorities. They have an ally in the White House. If left unchecked, their ideology threatens the peace.

The solution: Radbruch. Any law that stops America's citizens from fighting such existential enemies is unbearably divorced from justice. It is no law.

Thus, a chink is opened in the law through which justice can flow. And that justice is punching Nazis square in the fucking face.

Tom Blamey is the 'nom de guerre' of a second-year Juris Doctor student.

More articles:

The Fall of Pepe, or How I Learned I was a White Supremacist

The rest of this issue:

Nazis under the Nightsheets

5/9/2017 02:09:25 am

Does this doctrine equally apply to communists? After all, communist regimes have collectively been directly responsible for far more death and violence than the Nazis ever were. The Chinese communist party and the Bolsheviks have more blood on their hands than Hitler.

So would you support my decision to punch the next person I see handing out a socialist alternative or red flag newsletter square in the face? Yeah, I didn't think so.

Concerned Citizen

5/9/2017 05:35:21 pm

Do you honestly think any reasonable person wouldn't be against any and all genocidal ideologies?

What are you trying to prove here? Why are you so desperate to defend Nazis?

Troubled Townsperson

5/9/2017 09:18:06 pm

I'm not defending Nazis. But the only people currently going around punching nazis belong to groups like Antifa, who deserve a good clobbering themselves.

I'm all for a group committed to liberal democracy going around clobbering nazis and communists alike. Anyone keen?

Nazis are worse than commies

5/9/2017 04:21:44 pm

Yeah communist regimes have been pretty bad, but not as bad as Nazis. Extermination of other races isn't integral to communist ideology, it is to Nazism. It's also a bit of a false comparison to equate 12 years of Nazi rule to 70 years of communist rule. The communists didn't deliberately exterminate 11 million people due to their race or sexual orientation. The communists didn't plan to starve 100 million people to death. When the Nazis withdrew from Ukraine they systematically destroyed everything and killed every one. Even the red army wasn't as bad when they reached Berlin. The Nazis were also trained to commit war crimes (so was the red army). Nobody was as bad as the Nazis, so they're very worthy of punching.

The lesser of two evils is still an evil

5/9/2017 04:36:33 pm

Ohwell I suppose it doesn't matter that Mao starved 100 million people to death in China because he apparently didn't mean to. "sorry guys, my bad".

The Communist regime of Pol Pot actually did attempt to exterminate the Chinese element in Cambodia. I suppose he wasn't a 'real' communist though or something, right? I suppose you are also completely unaware and/or don't care about the Soviet genocide of the cossacks and tatars.

And why is seeking to exterminate people based on their class somehow better or less evil than seeking to exterminate people based on their race? Is it a less punchable offence to kill 50 million people because of their class than it is to kill 11 million people because of their race? The answer you have given is yes. The answer I give is that you deserve a punch in the face just as much as any nazi deserves it.

Addendum

5/9/2017 04:50:38 pm

Further to this, communists and marxists today seem curiously preoccupied with race. They don't seem to care much about class anymore, rather their raison d'etre seems to be to take down a few pegs a certain ethnic group they deem to be unduly privileged and powerful in society.

I'm pretty sure I've heard that story somewhere before, the story of Nazis which could easily be told as one of a movement that sought to take down another certain ethnic group that was deemed to be unduly powerful and privileged in Germany.

The bottom line is that both nazis and communists are extremist scum. What happened in Charlotesville was essentially nazis fighting communists, and Antifa is certainly an extremist communist outfit. When Trump condemned violence 'on all sides' he took entirely the right position. I don't want nazis on my streets but nor do I want commies.

WRONG

5/9/2017 05:42:51 pm

The 'Addendum' comment is fake news. Many groups attended to protest neo-Nazis and white supremacists. Not just antifa and the extreme left.

Regardless, Nasism is a ideology based on violence. Communism is not.

Correlation does not equal causation.

Stephen

5/9/2017 11:33:49 pm

Marxism doesn't advocate for the extermination of anyone, it's extermination of a class based society and capitalist ideology. The fact that people died both in the process of realising communist societies (whether Marxist or not) and under governments purporting to implement communism does not impute to the ideology the objective to exterminate those people.

Nazism is different because central to its ideology is that many different groups of people are considered sub-human or inherently less valuable than others. While perhaps communists argue that the bourgeoisie are less worthy to rule than the proletariat, the ideology advocates for coercive dispossession of private property not deprivation of life. The aim is to end exploitative economic and social relations and to bring about material equality for all. The final solution of the third reich was to eliminate entire swathes of the human race from existence. The erroneous position adopted by governments the world over, and through history, has been that race is a cause of inequality rather than a symptom of it. Our settlers wiped out Tasmania's indigenous population; Truman dropped two nuclear bombs on thousands of innocent Japanese civilians; and Stalin brutally killed essentially anyone who disagreed with him. Our histories are steeped in violence, whether liberal or otherwise.

Even if the methods employed by communist governments to achieve their ends did result in many, many deaths it is not the same as Nazism. In furthering democracy the US and its allies have killed millions of innocent civilians over a number of decades. And yet we don't impute any equivalent homocidal objective to liberal democratic ideologies. I guess I would add nor should we. Liberal democracies for years have adopted imperialist policies that have directly caused the deaths of thousands of people. And I suspect that you will find a number of communists and Marxists who argue that capitalism has caused millions of deaths and that violence is central to capitalist ideology. How many people have died merely because they could not afford health care? You probably don't think this is a direct consequence of capitalist ideology, it's even more likely that you wouldn't impute those deaths to the US democratic government either. The government does not mandate that providers charge for their services, but plenty of Congress members have advocated for the complete withdrawal of ACA-coverage for millions of Americans (which would cause plenty to die). A fair reading of either socialism or liberalism wouldn't lead to the conclusion that those deaths are necessary.

The point is, you can't equate communism with Nazism just because governments purporting to embody conceptions of communism killed people. You belittle the actual horror of Nazi ideology when you do, you also demean the suffering it caused, and the danger it poses. Imperialism, fascism and Nazism (however separate or distinct they may be) are abhorrent ideologies. There is a distinction between an ideology of violence and one in which violence has occurred. We will fail to to identify the true cause of millions of deaths if we cannot dilineate between communism and fascism, nor liberalism and imperialism for that matter, despite the fact that historically the two have been paired with each other.

I still wouldn't punch a Nazi, but I wouldn't go to war to defend my country either. I might, in certain circumstances, punch someone who threatened me or someone close to me (physically or otherwise).

Better dead than red

6/9/2017 12:21:08 am

Does the goal of communism being different to that of the nazis really matter when the end results are the same?

When nazis kill 10 million people and communists kill 10 million people, I don't really care why either of them did it. They both still killed 10 million people.

I fully expect someone to tell me 'oh, well that wasn't real communism' or something.

@this is gonna be a bad comments section

5/9/2017 06:30:28 pm

Take a drink every time someone uses a strawman, and
a shot every time the 'No True Communist' fallacy appears,

Also weep every time someone tries to claim that Charlottesville was wrong 'on all sides'

Sic Semper Tyrannis

5/9/2017 09:43:36 pm

It was wrong on both sides Trump was right

Evello mortem veritas

5/9/2017 09:59:14 pm

I know right? Those horrible British people, did you know Churchill was a drunk racist?

Vigilantism

5/9/2017 09:50:02 pm

America isn't a lawless society. What this article argues for is vigilantism. Exterminating on race or class both are disgusting. both idolegies are genocidal the ethnic, religious and social repression in China and the former USSR is evidence of this. Communism and Marxism is a repulsiveness ideology that despite its popularity amongst the self entitled academia and inner city elites is an ideology of death. Nazisms racism is repulsive but this in no way should minimise the violent totalitarianism inherent Marxism. ANTFIA BLM and others are dangerous groups as are the alt right nazis. There were those peacefully protesting on both sides of the issue. Despite the revisionist impulses those who forget history are condemned to repeat it.

Fact check

5/9/2017 10:07:33 pm

People killed by black lives matter and antifa: 0
People killed by extreme right wing US terrorists: 100+
People killed by Nazis: 9,000,000+

Alternative fact check

5/9/2017 11:08:40 pm

There's a statistics in about the order of about 100 million that is conspicuously absent from your list

6/9/2017 12:46:46 pm

Baton Rogue Dallas ? Those police ambushes that have occurred had clear ties to parts of BLM.

Fact check check

6/9/2017 09:40:16 pm

Err, did you forget about this: https://en.wikipedia.org/wiki/2016_shooting_of_Dallas_police_officers

Unsure if satire

6/9/2017 10:43:24 pm

It's actually tragic that, in an open and free democratic society, it's necessary to explain to well-educated people that using violence against non-violent people whose ideas you don't like, however horrible, is totally unacceptable.
Yes, this even applies to extreme ideas. You know why? Because there are laws against violence, intimidation, and incitement. Anyone you consider a 'nazi' who actually commits these offences is liable to arrest and prosecution. What you're suggesting is that people who express very awful ideas, but don't do any of those things, shouldn't just receive legal punishment, but should be vulnerable to the beatings of any random citizen around them. Are you actually serious? The central contradiction of this insane justification is that it suggests it's okay to engage in vigilante violence, because otherwise some people might be incited to vigilante violence. See a problem here?

There is zero self-reflection that you've decided to fight what you perceive as fascism, however well-intended, with fascistic means. The pathetic justification by describing law as 'so divorced from justice that it is no law', is at best a means that members of the judiciary should ignore or override the law. Not so that any person who thinks they know what justice is can run around punching every person they deem against justice. Some people think that waving a US or Australian flag is akin to fascism. I guess it's okay to beat them up? Honestly, I consider myself left-wing, but I am sick to death of explaining to intellectual lazy liberals why violating the basic legal protections afforded to others is wrong. However bad you think Trump or Pauline Hanson are, this is not Nazi Germany. And the fact you think it might be close shows a lack of knowledge of both legal and political history.

Antiantifa

6/9/2017 11:44:02 pm

I agree with your comment though it's important to note that the torch bearing participants at Charlottesville were more or less actual nazis and/or fascists, as distinct from people of the degree of Pauline Hanson.

The thing is, Antifa more or less define a nazi/fascist as "anyone I don't like" or anyone an iota to the right of extreme left. If the rally at Charlottesville had instead comprised well meaning peaceful 'not nazi' individuals, Antifa would still have been there behaving like thugs, as they do whenever a university happens to have a speaker they don't like, or at the 'anti Marxist' protest recently at Berkeley.

Context context context

7/9/2017 12:44:13 am

I agree mostly. My point was one of general principle. Obviously there are circumstances in which individual violence (e.g. Self defence) is acceptable. I even think there are times, where a system is completely incapable of promoting the rule of law, where democracy has crumbled, arrests are done without charges, government action has no accountability, etc. - that dissent is acceptable, if not a moral obligation.

This is certainly not the case with the US, even with the current political insanity. It is just absolutely not even remotely close to a tyrannical state or a civil war. Even regarding the Charlottesville incident, the problem there was not the assembly of white supremacists. The problem was their incitement and the violence which ensued. And violence in response by citizenry (e.g. Antifa), except where necessary, was not made acceptable either. This seems restrictive, but the alternative is to encourage that every person be endowed with the discretion to decide when, where and upon whom their own sense of justice may be exacted with physical violence. We should value our own safety and freedom more than our desire to see immediate "justice" and, in the process, severing every civil institution we have spent centuries forging.

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The Law of Punching Nazis

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