Vol 12, Issue 7
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.
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