The question of whether Nazi law was valid law has been at the background of jurisprudential discourse since the Hart-Fuller debate in the 1950s. The enduring focus of that discourse on the validity question – the conditions of validity for law – and the separability question – the nature of the relationship between law and morality – has consigned the Third Reich to a specific jurisprudential role as a limit case for positivism and natural law. This dissertation elucidates and interrogates that role, using recent empirical and theoretical historical research to challenge its basis and assert the substantive relevance of the Nazi past for present legal theoretical concerns. It argues that the jurisprudential representation of Nazi Germany is flawed. It relies on a hypothetical, superficial, evil straw man version of the Third Reich that bears little resemblance to its actual history. It also treats Nazi law as the paradigmatic, archetypal wicked legal system. This is informed by an underlying narrative of rupture between Nazi Germany, including its legal system, and the contemporary concept of law. The positivism/natural law dichotomy around which the discourse is structured is consequently incapable of adequately explaining and incorporating Nazi law. This dissertation draws on the legal theoretical writing of David Fraser to examine how it might be reimagined to achieve this. The narrative of rupture that informs jurisprudence was constructed at Nuremberg and proliferated into historical understanding, public consciousness and, via the Hart-Fuller debate, jurisprudential discourse. Over recent decades it has been revised within historiography but its successor narratives have not made their way into jurisprudential discourse, which remains largely isolated from the historical discipline. This dissertation shows how the actual, historical case of Nazi law is not – but ought to be – part of the jurisprudential concept of law.

Four years after the end of the National Socialist dictatorship and a disastrous major war, basic rights and democratic government were enshrined in the Basic Law for the Federal Republic of Germany in May 1949. Thus parliamentary democracy was formally and institutionally reintroduced to Western Germany at the Bund level. Successful implantation of democracy, however, requires not only constitutional arrangements but also, and perhaps more importantly, participation on the part of the people in the democratic process. Through analysis of the public involvement in the Basic Law's formulation and the impact of the public debate on the deliberations of the Parliamentary Council between September 1948 and May 1949, the degree of participation of Germans in the three Western zones of occupation, upon which the new West German state could subsequently build, is explored. Initial answers are suggested in chapter II and then developed in subsequent chapters as various contentious topics debated by the Parliamentary Council are examined. Anti-parliamentarianism, the search for a new symbol, newspaper perceptions as a reflection of the reality of interaction between occupier and occupied in the constitution's formulation, and the public debate about the nature and status of the second chamber, about the relationship between God and the Basic Law, and about full equality for women are analysed. The nature and extent of the public debate 1948-1949 make clear that the German population of the Western zones had already begun to think and function in a democratic fashion on the Bund level. This thesis suggests that the creation of an institutional framework, such as the Basic Law, should not be overemphasized at the expense of the developing democratic culture in post-war Western Germany. Without the gradual democratization of the population already well underway when the provisional constitution came into force on 23 May 1949, it is unlikely that the Federal Republic of Germany could have established itself so successfully so quickly.