Legal Oughts , Normative Transmission , and the Nazi Use of Analogy

In 1935, the Nazi government introduced what came to be known as the abrogation of the prohibition of analogy. This measure, a feature of the new penal law, required judges to stray from the letter of the written law and to consider instead whether an action was worthy of punishment according to the ‘sound perception of the people’ and an ‘underlying principle’ of an existing criminal statute. In discussions of Nazi law, an almost unanimous conclusion is that a system of criminal law ought not to contain legislation of this sort. This conclusion is often based on how the abrogation relates to the normative claim that the law ought to be predictable. In particular, it has been argued that the Nazi use of analogy diminishes the law’s predictability such that the fact that the law ought to be predictable transmits its normativity to a prohibition of a Nazi type of analogy legislation. In this paper, we argue that this argument is not entirely correct. While we believe that the law ought to be predictable and that there is evidence for the claim that the Nazis’ introduction of analogical reasoning implied, caused, or contributed to a diminution of predictability, this fact is logically too weak to ground the conclusion that necessarily a penal system ought not to contain legislation of this kind. Despite the undeniable wickedness of the Nazi penal system, this type of analogical reasoning can be made consistent with the predictability of the law. We argue that consistency of this sort depends on whether the use of analogy is supplemented by certain contextual background conditions. The occurrence of these conditions blocks an inference from the fact that the law ought to be predictable to the conclusion that a penal system ought not to allow for this type of analogical reasoning.