A Question of Morals_ Gustav Radbruch’s Approach Towards Law

8/7/2015 A Question of Morals? Gustav Radbruch’s Approach towards Law The Student Journal of Law

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A Question of Morals? Gustav Radbruch’s Approach towards Law

Paul Weismann

Abstract

Gustav Radbruch’s experience of the Nazi regime had a certain impact on his legal theory. This post‐war adaptation has been overstated by some as a complete metamorphosis of his theory. However,Radbruch merely ‘upgraded’ a concept – substantial justice – which was prevalent in his theory alsobefore 1933 to a validity claim. According to the post‐war version of his theory extremely unjustlaws might even be non‐existent.

The paper attempts to show that the ideas Radbruch’s theory of law is composed of have notchanged radically; that Radbruch has not turned into an apologist of natural law as a consequence ofthe Third Reich. Radbruch has followed a positivist approach, but at the same time – unlike Kelsen,for example – always took a relativist view on legal positivism. An analysis of Radbruch’sunderstanding of justice which is undertaken in this paper shall for the most part disclose thecontinuity of his theory beyond the years 1933 and 1945 respectively. The post‐war concept of‘statutory lawlessness and supra‐statutory law’ is powerful, indeed, but it does not revokeRadbruch’s work in its entirety.

Introduction

The jurist Gustav Radbruch (1878 – 1949) was a highly influential theoriser of his time and beyond,principally legal positivist, and, last but not least, adversely affected by the seizing of power – the so‐called Machtergreifung – by the Nazi government in Germany in 1933 and the subsequent terrorregime. Radbruch, declared ‘”politically unreliable’” and therefore dismissed from his professorshipin Heidelberg by the new regime, decided to go into internal exile.[1]

It shall be attempted here to shed light on the effect Radbruch’s experience of the Third Reich hadon his legal theory. The purpose of this paper is multiple. After a short presentation of the mainarguments of the two main antipodes of legal theory – the natural law theory and legal positivism –attention shall be drawn to the concept of validity and its meaning in jurisprudence. Subsequently,Radbruch’s legal theory shall be presented and it shall be argued that the post‐war amendments tohis hitherto basically positivist conceptions of law are by no means a transformation of the entiretheory. Rather, his introduction of notions of basic (substantial) justice as a validity claim amounts toa slight adaptation – a mere ‘shifting the accent’,[2] as Radbruch himself put it. And even this mere‘shift’ did not come out of the blue after 1933. As we shall see, even before Hitler came to powerthere was a continuous presence of the idea of justice as an aim which legislators always should atleast strive for. In that sense, the adaptation merely consists in an up‐grading of the role offundamental justice to a validity claim, not in the introduction of an up to then completely alienconcept. To this end, Radbruch’s theory prior to 1933 will be presented and – under a separate

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heading – his post‐1933 writings will be dealt with. In this context also Radbruch’s concept of justice,which terminologically is – at places – inconsistent, shall be discussed.

1 PRELIMINARY REMARKS

1.1 The fascination of natural law

In Western legal history, the concept of natural law can be traced back to the ancient Greeks, inparticular to the first Sophists and Heraclitus of Ephesus.[3] Apologists of the natural law theoryessentially claim that law is a naturally given, universal set of rules, whose contents are blatantlyobvious to everybody due to ‘actual, existing, universal human ends’.[4] The law does not have to beinvented by a sovereign, who could either adopt good or bad, just or unjust legal norms. Natural lawis rather valid qua its accordance with ‘elementary and obvious principles of human nature’, theysay.[5]

This notion – viz that there is a set of rules, established by a higher entity and made aware to thepeople by their sense of reason – persists in the Christian‐medieval idea of law as a ‘divinelyinstituted order, a holy order’,[6] the difference being that nature is replaced by God and reason isreplaced by religious belief.

With the beginning of Enlightenment in the late 18th century emphasis is grosso modo – leaving thedifferences between the single schools aside – again laid on nature and reason rather than faith inGod. Since natural lawyers claim that the rules are obvious to any rational or – as regards theChristian‐medieval coinage – believing agent, logically for these individuals there can be no doubtabout their content.

The adherents of natural law claim that its norms comply with the idea of justice. Justice is claimedto be absolute; it is a concept, which claims the most general applicability, in other words:universality.[7] The norms of natural law are solely determined by and can therefore be deducedonly from (rational/divine) justice. The two ‘self‐evident’ principles of the natural law stricto sensuare: ‘”What is just is to be done, and injustice is to be avoided”’, and ‘”Give to everyone his own”’.[8]In the natural law theory validity can only mean: reflection of justice. It is the only, simultaneouslythe most basic and the highest, prerequisite of the existence of a rule.

1.2 Legal positivism – the ‘scientific’ approach

Legal positivists think quite differently. Pursuant to a strict legal positivism, the validity of a lawabove all requires legality, meaning that the law has been passed in accordance with the respectiverule‐making procedure which is provided by a norm ranking higher than the norm to be adopted. Toemploy a quotation from Rommen, positivists consider the law to be the sum of ‘those norms onlywhich are enacted as such by the factual and published will of the legislative organ in dueconformity with constitutional law or which are explicitly or tacitly admitted by it’.[9] Considerationsof justice ought not play a role, neither in the application of law nor in jurisprudence.[10] That is notto say that positivists advocate an indifferent attitude towards unjust laws in general. Their onlydesire is to create both a fully objective jurisprudence and a fully objective legal science, which aremerely occupied with the question of what the law as a product of the legislator’s will is, not what itshould be – a jurisprudence and a science of the lex lata, not of the lex ferenda. This is a reaction tothe finding of jurisprudence that it is incapable of solving the problem of justice. Legal positiviststherefore limit their task to answering the question of how people have to behave, therebyneglecting the traditional justice‐oriented question of how people should behave, which is rather aquestion of legal philosophy than of legal science.[11] The question whether a law is just or unjust is‘an ethical question, not a juridical one’.[12] This objective attempt has to be seen in the context of



the more general epistemological school of positivism, which emerged in the early 19th century. It isan attempt to adapt epistemology – and hence any science – to the model of natural science, whichhad been considered more cause‐based and hence objective.

According to Kelsen, a leading representative of legal positivism, the two main differences betweenlegal positivism and the natural law theory are that the former deals with norms which are adoptedby humans; the latter, however, deals with norms that are emphatically not created by humans, butby a higher ‘natural’ order (be that God, nature, or reason). In a positivistic understanding thevalidity of law is determined by the compliance with law‐making rules, ie with procedures. Naturallawyers instead define laws as valid by reason of their compliance with basic notions of justice. Inthat sense positivism employs a formal approach towards validity, whereas natural law takes thesubstantial, content‐based route.[13]

In light of the differences presented above, one of the main questions to be dealt with in this paperis whether and, in the affirmative, how these two approaches are reconciled in Radbruch’s theory.

1.3 Preliminary remarks on legal validity

When dealing with legal norms, the question of validity is of paramount importance. Validity is themost basic prerequisite of the effectiveness of a legal rule, the seal of its raison d’être, the crucialfactor for its bindingness or non‐bindingness, its elixir of life, as it were. Joseph Raz aptly describedvalidity as the ‘mode of existence of norms’.[14] Once a law has been declared invalid, it is irrelevant– from an application‐oriented point of view not worth considering any more. The claim of invalidityis arguably the fiercest argument one can think of against a law. It attacks the law at its right to exist.

For these reasons, a clear conception of validity is the most important prerequisite of legal certainty,which, in turn, is a – if not the – fundamental principle of law. Legal certainty makes it possible forthe agent to obey a law in the first place. As long as the agent does not know what the law is, iewhich norm – among the many norms with different rank each (eg moral, conventional norms) – islegally valid and therefore the coercive regulation of human conduct, he cannot be expected to actlawfully. As long as legal norms are not explicitly made distinct from other norms, there cannot belegal certainty at all. Hence, the decisive role of legal validity in making legal norms distinct fromother norms within the realm of legal science should always be borne in mind, especially when itcomes to defining the prerequisites of legal validity. As has been pointed out above, legal validitycan either be based on formal (eg legal positivism, legal realism) or on substantial (eg natural law)requirements. This fundamental difference makes validity a diverse concept altogether – in terms ofits conditions. As regards the consequences of validity, however, it is a universal concept, becausethe effect of validity is the same throughout the variety of legal theories – viz the bindingness of alaw. In that sense, validity – as a universal benchmark – is an appropriate concept against which tocompare legal theories.

2 GUSTAV RADBRUCH’S THEORY OF LAW

2.1 Legal validity

Already in the first edition of his ‘Introduction to Jurisprudence’ [Einführung in dieRechtswissenschaft] (1910) Radbruch claims that the validity of a law requires not only legality butalso compliance in a ‘vast majority of cases’ [überwiegende Mehrzahl der Anwendungsfälle].[15]Accordingly, we have two prerequisites of validity: (1) legality, ie accordance with the respectivelaw‐making process and (2) general compliance. Let us deal with the general compliance first.Strictly speaking, this is not a legal prerequisite, but a factual one. Whether a certain legal norm isapplied and – if so – in how many cases it is applied, is merely an empirical question. To be sure



about the exact figures one would have to conduct a comprehensive survey. Arguably because thequestion if and why a legal norm is or is not applied, is rather a question of sociology than of legalscience in the strict sense, Radbruch does not go into further detail here. Nevertheless, his claim forgeneral compliance has first of all to be qualified as a commitment against a merely formalisticapproach, as it divides the focus of the question of legal validity. Not only has a statute to be ‘legal’in the aforementioned sense, the law must also be applied regularly in order to be valid. The latterrequirement is a reference to legal realism, rather than to a positivism stricto sensu. However, this isnot to say that validity of law requires acceptance amongst the people, as it is also possible thatpeople apply a law for other reasons than agreement with its content, eg fear of punishment ormere accommodativeness. The general compliance with a legal norm is an expression of its power,regardless of whether this power is generated by general acceptance of the law, fear of sanctions orany other reason. On the one hand, the various possible motives for acting in compliance with a laware merely a matter of attitude, nothing external. According to Radbruch they are subject tomorality.[16] On the other hand, a certain connection between compliance with a law andacceptance thereof is undeniable, when he alleges, already in his early writings, that – grosso modospeaking – laws are just confirming what would otherwise – if there were no laws – be ruled bycustoms, another category of rules, as an implication of everyday life in its actuality.[17] Thisstatement shows how strong Radbruch was influenced by the historical school of law, according towhich the state only phrases law, since the content is already present in the ‘will of those livingtogether under law’.[18] In that sense, the historical school in the respect of the laws’ substance isclosely related to the idea of natural law. Although the commitment to reason as a source of normsis substituted by a less universal (namely nationalist) viewpoint, the conviction that the laws’substance is predetermined by a certain spirit – for the historical school this is the aforementionedcommon will of the people –, and not only bound by procedural legislative requirements, as legalpositivism claims. This proves that also in his writings prior to 1933 Radbruch conceded notions ofmorality (justice) to be relevant in legal science, because after all it is nothing else but the people’smorality which is expressed in customs (see 2.2 below).

Given the assumption that legal norms just represent what customs would command if there wereno laws, it is imperative to have a closer look at the characteristics of customs first.

2.2 Law and customs

It is generally acknowledged that customary rules are of inferior quality as compared to laws, butthat they regulate external actions – just as laws do.[19] With customs there is no procedure ofauthoritative generation, meaning that the question of legality and accordance with other (non‐legislative) procedural rules respectively, logically has to be omitted. But, as Radbruch points out,there are also legal norms, which are not generated by the state, viz customary law.[20] This, onceagain, shows how closely customs and laws are related to each other. The existence of customarylaw shows that – even though still the majority of legal norms is engendered differently thancustoms – the procedure of generation is not an apt differentiator in each and every case. Thereforethe remaining aspect, ie the appliance amongst the people, has to be considered carefully. Sincethere is no superior force telling the people what has to be customary, the content of customs canonly be what a vast majority of people (within territorial limits) consider necessary and viable – theright way of dealing with the tasks of life. The most fundamental aspects of how to deal with thesetasks could be eg general respect for human life, human liberty and property.

Once such an agreement on most fundamental principles of living together has been reached a legalcommunity emerged. So, in short, one is to say that customs require a widespread agreement (justas laws do) and a community in turn requires customs in order to emerge. Customs are not legal (ienot in accordance with a legislative procedure and not called ‘law’). Nevertheless, like laws, theydeal with matters of everyday life. Simply a vast majority of a group of people makes customarywhat it considers to be ‘good’. Therefore customs, by virtue of being customs, represent the moralbeliefs of a vast majority of people of a certain group. The general acceptance, shown by a wideactual exercise of the customs, goes hand in hand with the fact that they represent the convictionsof the group. Since customs, unlike laws, are only present – laws, on the contrary, are referred to as



valid – as soon and as long as they are exercised, they are much more flexible than laws. There is nofurther criterion customs have to fulfil. Therefore customs are nothing more than institutionalised(but still rather flexible) representations of moral beliefs, developed by the people themselves.

Not only to regulate people’s behaviour but also to convince them of its content is, according toRadbruch, an important task of legal norms and the legislator respectively.[21] When Radbruchwrites about the relationship between laws and customs on the one hand and morals on the other,he claims that law and customs can ‘justify the coercion exercised by them on their own’.[22] Butwithout displaying the ‘right’ moral values neither laws nor customs would suffice to convince thenonbelievers, those who reluctantly abide or who do not even stick to the rules. There is no doubtabout the fact that the content of both laws and customs, of rules in general, is moral in the sensethat the agent can find it morally right or wrong. The question at issue is, however, whether theserules should bear good moral content – or even must do so in order to be valid. Answering thisquestion in the affirmative immediately raises the question of how to determine what is morally‘right’, ie ‘just.’ First, we will further attempt to answer the formal question to what extent moralconsiderations do count in Radbruch’s scientific assessment of law. In a subsequent step, Radbruch’sapproach to the substance of morals will be presented.

2.3 Law and morals

Employing a well‐known Kantian distinction, Radbruch claims that whereas law is dealing withexternal conduct – ‘outwardness of law’ [Äußerlichkeit des Rechts] – only, the realm of morals is thehuman ‘soul’ – ‘inwardness of morals’ [Innerlichkeit der Sittlichkeit].[23] In order to act in a lawfulway, it does not matter why you comply with legal norms. In a legal point of view, the motives for anaction are basically irrelevant (for the exceptions, see below). Morals, on the contrary, concernmainly the motives of an action. As long as you want and actually attempt to act morally younecessarily do act morally at the same time, even if the proposed action turns out not to besuccessful in reaching the moral aim. Radbruch stresses that in fact there are cases, where the twodomains – morals on the one hand, and law on the other – overlap; for example, when legal normsdistinguish between intent and negligence. In both cases the external action is the same, thedifference in the legal reasoning is rooted in the abovementioned inner sphere only.Notwithstanding these prima facie overlapping, the purpose of the two sets of rules is different.Whereas the subject of morals is the attitude of the agent per se, the law is interested only underthe aspect of the outward conduct and with respect to expected future conduct. As long as an agentis just considering committing a crime without having started to act, this is of no interest in a legalviewpoint.[24]

The main implication of the described difference between law and morals is, however, that legalnorms are enforceable, whereas moral norms are not. A second remarkable difference Radbruchdepicts is that you do not owe moral behaviour to another agent but to yourself, as opposed to alegal obligation, which is necessarily directed to another agent and corresponds to his right.[25] Thisis exactly the reason why moral norms are not enforceable. You cannot logically enforce a claimagainst yourself. Furthermore, legal norms are imposed by the legislator/the judge on all agents(‘heteronomy’), moral norms, on the other hand, vary from agent to agent; they are therefore to becalled autonomous (‘autonomy’).[26] In spite of these differences, Radbruch has always understoodlaw generally as a value‐related regime, as a commitment to justice, regardless – and this is in turn astrong commitment to legal positivism – of whether the legislator’s necessary aim, that is providingjustice, is reached or not.[27] The legislator must always strive for justice in its laws. ‘Law may beunjust (summum jus – summa injuria), but it is law simply because its meaning is to be just‘.[28] Aslong as the legislator makes an effort to adopt laws according to this goal the legal norms are – giventheir application in a ‘vast majority of cases’ – valid, regardless of how unjust they actually are. WhatRadbruch is protecting here is the legislator’s inability to adopt just laws, not its unwillingness to doso. Hence for factual reasons the injustice a legislator might possibly be able to legalise is limited,since it cannot believably claim its willingness to adopt just laws, once a certain – high – degree ofinjustice is reached (cf 2.6 below).



2.4 Radbruch’s ‘shift of accent’

Beyond doubt, Radbruch makes an adjustment to his work after 1933 and especially after 1945, asfar as the problem of ‘statutory lawlessness’ is concerned. As has been indicated above, it would notdo justice to Radbruch, however, to claim that he was a devout positivist, who did not deem moralconsiderations to be part of legality at all, before the Nazis came to power, and after World War II‘was converted by this experience’.[29] For the following reasons I am convinced that the allegedtheoretical breach was merely a slight reassessment of emphases.

Even before 1933 Radbruch, although advocating a strict separation of morals and law, emphasisedthat equality before the law is inherent to the nature of law.[30] This equality before the law is, forRadbruch, justice in its ‘particular and genuine meaning’ (that is: substantial justice) – thefundamental aim of law.[31] So already before 1933 he formulated a kind of higher principleordinary law has to comply with. What he admittedly had not done up until the takeover of Nazism,was to explicitly elevate this principle to a validity claim. Rather, he treated substantial equality (forRadbruch’s intricate and – at places – contradictory terminology see 2.5 below) as a generalparadigm of legislation, an aim that the legislator always has to strive for. Many Nazi statutes, eg the‘Law for the Protection of German Blood and German Honour’ and the ‘Reich Citizenship Law’, donot display the least willingness of the legislator to strive for equality, however. Indeed, they doconform with legislative procedures and were applied in a ‘vast majority of cases’ (generalcompliance; see 2.1 above), but evidently they did not treat agents equally. Applying Radbruch’spre‐1933 paradigms, one could possibly justify an unjust law with the legislator’s incapability to passa just law. In these cases, however, the justification fails for reasons of the legislator’s obviousunwillingness to enact ‘just’ laws. So even when applying Radbruch’s pre‐1933 treatises these Nazilaws lack an important essential of legislation. Whether the fact that the legislator did not evenstrive for ‘justice’ (equality) – in Radbruch’s view prior to 1933 – would actually have lead to theirinvalidity cannot be answered with utmost certainty, though.

Another case in point for his pre‐war objections against or at least disregard of an unconditionedlegal positivism is the following quote, deriving from a script of a lecture given by Radbruch at theUniversity of Kiel during summer term of 1919.

The age of realpolitik, of politics qua power, appears in the form of legal positivism. The law,according to legal positivism, is identical with the statute, with the will of the state. Thedistinction between law and power, between law and the unchecked exercise of political will,appears to have been abandoned: The law marches along in lock step with the power of thestate, and every exercise of state power becomes, in the form of a statutory decree, law.Legal science is the idolatry of power.[32] (Emphasis in original).

What can be concluded from this passage is that (at least) as early as 1919 Radbruch was adedicated disputant of an unconditional legal positivism, which he considers to be the legal theoryfacilitating the identity of political power and law. Ten years later, still prior to the Nazi takeover, inthe 7th/8th edition of his ‘Einführung in die Rechtswissenschaft’ he fervently argues that there is an‘ineradicable sense for the difference between law and power’ [unausrottbares Gefühl derUnterschiedlichkeit von Recht und Macht].[33] He thereby refers to Rudolf von Jhering’s famoussujet of law as ‘policy of power’ [Politik der Gewalt][34] which he considers to be wrong and acontradiction in itself.[35]

2.5 Excursus: Radbruch’s understanding of justice



Let us now discuss the notion of justice in greater depth. In Radbruch’s understanding

[j]ustice directs us to treat equals equally, unequals unequally, but it does not tell us anythingabout the standpoint from which they are to be characterized as equals or unequals;moreover, it specifies solely the relation, not the kind of treatment. Both these questions canbe answered only by referring to the purpose of the law. Thus, in addition to justice, there isa second element of the idea of law: purposiveness.[36]

In order to correctly integrate the notion of justice in Radbruch’s theory of law one has todifferentiate between prerequisites of legal validity on the one hand, and the ‘idea of law‘ on theother hand. Together they build up all the criteria necessary for a ‘perfect’ law. Legal validityrequires, according to Radbruch, a) the compliance with the respective legislative process (eg adecision made in the parliament by majority voting), and b) the ‘appliance in a vast majority ofcases‘.[37] These are rather formal prerequisites, which can be examined easily. The ‘idea of law’, onthe other hand, encompasses a ‘tripartite scheme’,[38] viz a) legal certainty, b) purposiveness and c)justice. They are the embodiment of ‘legal value’,[39] ie justice in a wider sense. Legal certainty is acore concern of Radbruch’s theory, above all prior to 1933, as it protects the people’s trust in thebinding effect and the continuity of legal norms. The relationship between justice and purposivenessis coined by a strong belief in the legislator’s ability and willingness to enact ‘just’ statutes. Whereasjustice in this context is a merely formal function, purposiveness plays the decisive role insubstantiating equality. Once the parameters of the differentiation of facts are clarified(purposiveness), justice tells us to treat equal those facts we have determined to be equal. In thissense justice is a completely disinterested function that does not contain any value – an ‘emptybottle’, so to speak. Even a Nazi statute treating Jews and non‐Jews differently for the sole reason of‘race’ would satisfy this understanding of justice. What actually makes a law valuable, however, is itspurposiveness (for a different use of the term ‘justice’ see 2.4 above and 2.6 below).[40]

2.6 Back to Radbruch’s ‘shift of accent’

As has been mentioned before, the fact that there actually was something slightly new in Radbruch’spublished texts after 1945 is not a matter of concern, as neither academics dealing with his theory oflaw nor Radbruch himself have ever denied that.[41] The question is, to what extent his post‐warpublications were new in content. The two main theories approaching this debate have made it a‘question of unity versus transformation‘.[42] The transformation thesis advocates that Radbruchhas undergone an outright metamorphosis during the ‘altogether unique circumstances of thetwelve Nazi years‘,[43] whereas the unity thesis argues in favour of a continuous development ofRadbruch’s theory.

As Radbruch has outlined in his famous post‐war article ‘Statutory Lawlessness and Supra‐StatutoryLaw’, there are three possibilities of appraisal.

1) Laws which were not even attempted to be just by the legislator are non‐existent(‘”disavowal formula”’). They are not law, in fact they lack ‘completely the very nature oflaw’ (‘statutory non‐law’).[44]

2) ‘Flawed law’ defines a law that is intolerably unjust (‘statutory non‐law’, ‘”intolerabilityformula”’).[45] With such ‘false law’ the legislator must at least have tried to adopt a justnorm. This kind of law is invalid and hence must not be applied. As the practical differencebetween statutory non‐law on the one hand, and ‘false law’ on the other, is only minor, thedifference is to be appraised in terms of (moral) disregard. Paulson calls these two thresholdsoverlapping ‘”formulae”’.[46]

3) The third and highest level of acceptance a law can reach is validity, coupled withapplicability. Laws that reach this threshold are either fully just or unjust only to anacceptable degree, and are – in addition to that – duly enacted and applied ‘in a majority ofcases’.



The following passage from one of Radbruch’s post‐war writings once again shows that he stuck tothe parameters of his theory set earlier, although the assessment of the single components, inparticular of justice, is slightly different now.

But while power may indeed serve as a basis for the ‘must’ of compulsion, it never serves asa basis for the ‘ought’ of obligation or for legal validity. Obligation and legal validity must bebased, rather, on a value inherent in the statute. To be sure, one value comes with everypositive‐law statute without reference to its content: Any statute is always better than nostatute at all, since it at least creates legal certainty. But legal certainty is not the only valuethat law must effectuate, nor is it the decisive value. Alongside legal certainty, there are twoother values: purposiveness and justice. In ranking these values, we assign to last place thepurposiveness of the law in serving the public benefit.

… Where there arises a conflict between legal certainty and justice, between anobjectionable but duly enacted statute and a just law that has not been cast in statutoryform, there is in truth a conflict of justice with itself, a conflict between apparent and realjustice.[47]

As the quotation above shows, Radbruch – after 1945 – used the term justice in a substantiatedunderstanding – as the embodiment of just rules, not merely as formal equality (cf 2.5 above). Inother words, he discloses to which point this equality has to be measured up. It is not only thepurposiveness of the law any more, which provides for the respective legal value, but it is alsosubstantial justice as opposed to merely formal equality.

Radbruch’s trust in the legislator’s willingness to adopt just laws in the years prior to the emergenceof the Third Reich might be the reason for the strong emphasis on the purposiveness of the law andon the principle of legal certainty – ‘Law may be unjust (summum jus – summa injuria), but it is lawsimply because its meaning is to be just‘.[48] Legal certainty is beyond doubt an important claim oflegal positivism, as it embodies the notion of sticking to the rules, as it were. Therefore it functionsas a core argument in favour of legal positivism. Radbruch in his post‐war texts is well aware of theconflict between ‘statutory lawlessness‘ and legal certainty.[49] He admits that the existence ofthese two principles bears a certain tension. As a solution to this predicament he stresses theextraordinary circumstances of the Nazi dictatorship – ‘a never‐to‐be‐repeated madness‘[50] –,which justify a departure from the powerful principle of legal certainty.[51] What is lawful shouldnot depend on the judge’s opinion, but merely on the ‘idea‘ of the legally valid statute.[52] After1945 Radbruch grades up the legislator’s willingness to adopt just legislation, and compliance withbasic principles of substantial justice respectively, to a true validity claim.

It cannot be overstated that Radbruch ‘shift[s] the accent’ of his approach only under extraordinarycircumstances, ie when (for him) the degree of injustice is not acceptable any more. The ‘criterion ofextremity’ serves as a ‘safeguard against too much judicial recourse to morality and natural law’.[53]Those (many) statutes displaying a tolerable degree of injustice in contrast, would not suffer frominvalidity. Unacceptable ‘false law’, on the contrary, is not to be called valid any more (‘statutorynon‐law’). ‘[W]here there is not even an attempt to justice’, which actually is a very low level astatute has to reach, the statute is not even to be called law. Once the legislator displays thiswillingness to strive for justice, the statute is, given accordance with the legislative procedure andthe ‘appliance in a vast majority of cases’, a (valid or invalid, as the case may be; see 2.6 above) law.

Having considered all these claims against an unrestricted legal positivism, it becomes evident thatRadbruch’s theoretical standpoints before the war on the one hand, and after the war on the other,do not display a breach, rather a continuous development. Radbruch does not refuse his antebellumtheory of law after 1945. The only thing he does is – to use his own words – ‘shifting the accent’[54]from the principles of legal certainty and legal purposiveness to legal justice. As has been elaboratedso far, Radbruch in his published texts has not at any point in time – neither before 1933/1945 norafterwards – denied a strong commitment of law to substantial justice. What he actually has done –



obviously under the impressions of a regime of up to then unknown arbitrariness, cruelty andsystematic discrimination – was first to amend and, secondly, to more strongly emphasise theconcept of justice in his theory.[55] What Radbruch certainly did not do, however, was ‘correcting amistake in his earlier position’.[56]

There is no doubt that the practical implications of his post‐war position are far‐reaching, but thisshould not hide the fact that they fit in Radbruch’s pre‐war conception of law, nevertheless.[57]

3 CONCLUSION

The everlasting controversy about the relationship between substantial justice and the law has beenthrown light on from various perspectives in this paper. We have had a closer look on Radbruch’slegal theory in general, and on its adaptation in the years after 1933 in particular. It turned out thatthis adaptation has been overstated by some as a complete metamorphosis of his theory.[58] Wehave seen that the theory was changed, indeed, but that the alteration does not amount to aturnaround. Perceived in conjunction with the most arbitrary Nazi legislation and its consequentinvalidity, the effect of ‘shifting the accent’ is for sure considerable, but it should not be forgottenthat Radbruch’s post‐1933 theory invalidates extremely unjust cases only – a threshold which ispractically exceeded most of the time.

In the subsequent discussion of Radbruch’s understanding of justice chiefly the ambiguity of hisconcept of justice is dealt with. Although Radbruch is – in the course of his academic life – applyingdifferent understandings to the word ‘justice’, the concept of substantial justice as such is a constantin his work – even though it has appeared under different headings, such as ‘purposiveness’ and‘justice in its particular and genuine meaning’.

[1] F. Haldemann, ‘Gustav Radbruch vs. Hans Kelsen: A Debate on Nazi Law‘ (2005), 18 (2) RatioJuris 164.

[2] G. Radbruch in A. Kaufmann (ed), Kulturlehre des Sozialismus (Frankfurt: Athenäum, 4th ed,1970), 79.

[3] H. A. Rommen, The Natural Law. A study in legal and social history and philosophy (1936,Leipzig: Verlag Jakob Hegner, Eng tr, 1947), 5.

[4] R. M. Hutchins, ‘Natural Law and Jurisprudence’ in J. Cogley et al (eds), Natural Law andModern Society (Cleveland and New York: The World Publishing Company, 1962, 1963), 33.

[5] J. Wolenski, ‘Truth and Legal Validity’ in N. MacCormik et al (eds), Conditions of Validity andCognition in Modern Legal Thought (Stuttgart: Franz Steiner Verlag Wiesbaden GmbH, 1985),205.

[6] n 3 above, 3.

[7] The defenders of a certain understanding of justice tend to claim this understanding to beabsolute. However, the huge variety of different understandings of justice rather confirms itsrelativity.

[8] n 3 above, 220.

[9] ibid, 247.

[10] cf ibid.

[11] cf H. Kelsen, Die philosophischen Grundlagen der Naturrechtslehre und desRechtspositivismus (Charlottenburg: PanVerlag Rolf Heise, 1928), 8.

[12] n 3 above, 248.

[13] cf n 11 above, 8.

[14] J. Raz, ‘Kelsen’s Theory of the Basic Norm’ (1974) 19 American Journal of Jurisprudence 94.



[15] G. Radbruch, ‘Rechtsphilosophie’ in A. Kaufmann (ed) Gesamtausgabe vol 1 (Heidelberg: C.E. Müller Verlag, 1987), 97 [original 1st edition: 89].

[16] cf ibid, 220 [original 7th/8th edition: 1516]. Radbruch does not use the term ‘morals’ in thefirst edition, but introduces it in later editions. In the 7th and 8th edition (1929) he dedicatesquite a long passage to morals and their relation to other sources of rules.

[17] cf ibid, 97 [original 1st edition: 89]. It is not clear what Radbruch wants to express with thewords paraphrased above. Is it to be interpreted as a) a personal wish of his, that laws should,b) a theoretical approach in the sense that laws ideally do, or c) a statement that laws actuallydo represent what would otherwise be customary? Since the quotation stems from one ofRadbruch’s academic writings, it would appear that his approach here is of a theoretical naturewhich would be an argument in favour of possibility b). Whereas possibility a) would merely beinadequate, possibility c) would answer an empirical question without further references andtherefore in a not very wellfounded way.

[18] ibid.

[19] cf ibid, 220 [original 7th/8th edition: 1516].

[20] cf ibid, 225 [original 7th/8th edition: 2122].

[21] cf ibid.

[22] ibid.

[23] G. Radbruch, Grundzüge der Rechtsphilosophie (Leipzig: Quelle und Meyer, 3rd ed, 1932),43.

[24] For the entire example see n 15 above, 221 [original 7th/8th edition: 1617].

[25] cf ibid.

[26] For both ‘heteronomy’ and ‘autonomy’ cf ibid, 223 [original 7th/8th edition: 1819]. Althoughit is true that in a parliamentary democracy the agents (represented by delegates – MPs) imposetheir own laws on themselves and hence should be called autonomous, there is no doubt thatRadbruch, by using the antipodes ‘autonomy’ and ‘heteronomy,’ wanted to lay emphasis on thedifference between individual and collectivist (‘majority voting’) rules for the decisionmaker(s).

[27] Z. Uk Tjong, ‘Der Weg des rechtsphilosophischen Relativismus bei Gustav Radbruch’ inRechts und Staatswissenschaftliche Fakultät der Universität Bonn (ed), BonnerRechtswissenschaftliche Abhandlungen vol 73 (Bonn: Ludwig Röhrscheid Verlag, 1967), 3233.

[28] G. Radbruch, Rechtsphilosophie, § 1, Eng edn (n 2) 52 in A. Kaufmann (ed), Gesamtausgabe(Collected Works) vol 2, 227.

[29] H. L. A. Hart, ‘Positivism’ (195758) 71 Harvard Law Review 616, repr in H. L. A. Hart,Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 72.

[30] n 15 above, 224 [original 1st edition: 19 ff].

[31] ibid.

[32] G. Radbruch, Rechtsphilosophische Tagesfragen. Vorlesungsmanuskript. Kiel,Sommersemester 1919, Hidehiko Adachi and Nils Teifke (eds) (BadenBaden: Nomos, 2004), 33(emphasis in original), quoted in S. L. Paulson (transl), ‘On the Background and Significance ofGustav Radbruch’s PostWar Papers’ (2006) 26 (1) Oxford Journal of Legal Studies 36.

[33] n 15 above, 225 [original 1st edition: 2122].

[34] R. von Jhering, Law as a Means to an End (1877, Leipzig: Breitkopf und Härtel, Eng tr,1913), 283. For the sake of completeness one should add that, precisely speaking, Jhering writesabout law as the ‘intelligent policy of power.’ This does not mean that he denies the notion of theidentity of power and law, of course, but neither is it a commitment to unlimited highhandednessby the legislator.

[35] cf n 15 above, 225 [original 1st edition: 2122].

[36] n 28 above, 302.

[37] ibid.

[38] S. L. Paulson, ‘Radbruch on Unjust Laws: Competing Earlier and Later Views?’ (1995) 15 (3)Oxford Journal of Legal Studies 495.



[39] n 29 above, 225226.

[40] For the development of the notion of ‘purposiveness’ and connected inconsistencies inRadbruch’s theory see M. A. Wiegand, Unrichtiges Recht (Tübingen: Mohr Siebeck, 2004), 144ff.

[41] P. Bonsmann, Die Rechts und Staatsphilosophie Gustav Radbruchs (Bonn: H. Bouvier u. Co.Verlag, 2nd ed, 1970), 57 ff, in particular 63; Stanley L. Paulson, ‘Lon L. Fuller, GustavRadbruch, and the “Positivist” Theses’ (1994) 13 (3) Law and Philosophy 316 ff; Fritz von Hippel,Gustav Radbruch als rechtsphilosophischer Denker (Heidelberg: Verlag Lambert Schneider,1951), eg 41 f; Lon L. Fuller, ‘American Legal Philosophy at MidCentury‘ (195354) 6 Journal ofLegal Education, 481 ff.

[42] n 38 above.

43 G. Radbruch, ‘Five Minutes of Legal Philosophy’ (1945, Eng tr, 1991) in J. Feinberg and H.Gross (eds), Philosophy of Law (Belmont, Calif: Wadsworth Publ Co, 4th ed, 1991), 103. 'FünfMinuten Rechtsphilosophie' was first published in the RheinNeckarZeitung (Heidelberg) 12September 1945.

[44] G. Radbruch, ‘Statutory Lawlessness and SupraStatutory Law’ (1946, Eng tr, 2006) 26 (1)Oxford Journal of Legal Studies 7.

[45] n 1 above, 166; cf L. H. Meyer, ‘Gesetzen ihrer Ungerechtigkeit wegen die Geltungabsprechen’ in R. Alexy et al (eds), Neukantianismus und Rechtsphilosophie (BadenBaden:Nomos, 2002), 323.

[46] n 38 above, 491.

[47] n 44 above, 6.

[48] n 28 above.

[49] n 44 above, 8.

[50] ibid.

[51] cf ibid.

[52] n 28 above, 315316.

[53] n 1 above, 166.

[54] n 1 above.

[55] cf n 34 above, 39.

[56] n 40 above, 493.

[57] cf R. Dreier, ’Gustav Radbruch, Hans Kelsen, Carl Schmitt’, in H. Haller et al (eds), Staatund Recht. Festschrift für Günther Winkler, (Wien, New York: Springer, 1997), 204.

[58] See, for example, Fritz von Hippel, Gustav Radbruch als rechtsphilosophischer Denker(Heidelberg: Verlag Lambert Schneider, 1951), eg 41 f; Lon L. Fuller, ‘American Legal Philosophyat MidCentury‘ (195354) 6 Journal of Legal Education, 481 ff; H. L. A. Hart, ‘Positivism’ (195758) 71 Harvard Law Review 616, repr in H. L. A. Hart, Essays in Jurisprudence and Philosophy(Oxford: Clarendon Press, 1983), 72..

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A Question of Morals_ Gustav Radbruch’s Approach Towards Law

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