Topic:

The following facts areroughlybased on the case discussed by H.L.A. Hart on p. 32 of his "Positivism and the Separation of Law and Morals." (There are some significant departures from the actual account in Hart's paper).

In 1944, during the Nazi regime in Germany, a German woman, wishing to be rid of her husband, denounced him to the authorities for insulting remarks he had made about Hitler while home on leave from the German army. Though the husband's comments had been made to his wife in the privacy of their home and had been overheard by no one else, what he had said was in violation of a statute making it a felony to make statements offensive to officials of the Third Reich. Another provision of the German Criminal Code required that anyone aware of a felony must report it to the authorities. Following the wife's report, the husband was arrested and sentenced to jail.

In 1949, after the war, the wife was prosecuted in a West German court for an offense of wrongfully depriving a person of his freedom,punishable as a crime under the German Criminal Code of 1871 which had remained in force continuously since its enactment. In her defense, the wife pleaded that since her reporting of her husband's incriminating statements had been pursuant to the German law, she had just fulfilled her duty, and thus committed no crime.

Should the wife be convicted? Discuss the wife's action and her possible defenses in light of the relevant theories and readings covered in the seminar.

Notes:

Consider arguments on both sides of the various issues you raise. You are not required to reach a final conclusion regarding any of these issues, though you may argue for particular conclusions if you like.