The punishment of Nazi war criminals following the Second World War provided a high-profile instance in which legal theorists were able to study the separation of law thesis. Natural law was central to the legal theory of the prosecution.

The prosecution had to rely on natural law theory because most of the actions of the defendants were recognized as being legal under the judicial system of the Third Reich.

In fact, the Nazi defendants actively evoked legal positivism in defence of their actions. This defence was rejected, and natural law theorists proclaimed a victory over legal positivism. Such reliance on natural law to condemn the defendants was arguably misguided. Although the Nazi leadership clearly deserved punishment, there is significant reason to doubt the motives and innocence of the governments sitting in judgment of the defendants. When contemplating the issue of justice, we should remember that the power to punish is not the same as the power to produce justice.

Omar Swartz holds a J.D. from Duke University and a Ph.D. in Communication from Purdue University. He is an assistant professor of communication at the University of Colorado at Denver. His recent books include Persuasion as Critical Activity (2001); The View From On The Road: The Rhetorical Vision of Jack Kerouac (1999); Socialism and Communication: Reflections on Language and Left Politics (1999); and The Rise of Rhetoric and its Intersections with Contemporary Critical Thought (1998).