Gustav Radbruch
Encyclopedia
Gustav Radbruch was a German
legal scholar and politician
. He served as Minister of Justice
of the German Empire
during the early Weimar period
. Radbruch is also regarded as one of the most influential legal philosophers of the 20th century.
, Radbruch studied law in Munich, Leipzig
and Berlin. He passed his first bar exam ("Staatsexamen
") in Berlin in 1901, and the following year he received his doctorate with a dissertation on "The Theory of adequate causation." This was followed in 1903 by his qualification to teach criminal law in Heidelberg. In 1904, he was appointed Professor of criminal and trial law and legal philosophy in Heidelberg. In 1914 he accepted a call to a professorship in Königsberg
, and in 1914 he accepted one at Kiel
.
Radbruch was a member of the Social Democratic Party of Germany
(SPD), and held a seat in the Reichstag
from 1920 to 1924. In 1921-22 and throughout 1923, he was minister of justice in the cabinets of Joseph Wirth
and Gustav Stresemann
. During his time in office, a number of important laws were implemented, such as those giving women access to the justice system, and, after the assassination of Walter Rathenau, the law for the protection of the republic.
In 1926, Radbruch accepted a renewed call to lecture at Heidelberg. After the Nazi seizure of power in 1933, Radbruch was dismissed from his civil service post, as the universities were public entities. During the Nazi period, he devoted himself primarily to cultural-historical work.
Immediately after the end of the Second World War
in 1945, he resumed his teaching activities, but died at Heidelberg in 1949 without being able to complete his planned updated edition of his textbook on legal philosophy.
In September 1945, Radbruch published a short paper Fünf Minuten Rechtsphilosophie (five minutes of legal philosophy), that was influential in shaping the jurisprudence of values (Wertungsjurisprudenz), prevalent in the aftermath of World War II as a reaction against legal positivism.
Radbruch's legal philosophy derived from Neokantianism, which assumes that a categorical cleavage exists between "is" (sein) and "ought"
(sollen). According to this view, "should" can never be derived from "Being." Indicative of the Heidelberg school of neokantianism to which Radbruch subscribed was that it interpolated the value-related cultural studies between the explanatory sciences (being) and philosophical teachings of values (should).
In relation to the law, this triadism shows itself in the subfields of legal sociology, legal philosophy and legal dogma. Legal dogma assumes a place in between. It posits itself in opposition to positive law, as the latter depicts itself in social reality and methodologically in the objective "should-have" sense of law, which reveals itself through value-related interpretation.
The core of Radbruch's legal philosophy consists of his tenets the concept of law and the idea of law. The idea of law is defined through a triad of justice, utility and certainty. Radbruch thereby had the idea of utility or usefuleness spring forth from an analysis of the idea of justice. Upon this notion was based the Radsbrucian formula
, which is still vigorously debated today. The concept of law, for Radbruch, is "nothing other than the given fact, which has the sense to serve the idea of law."
Hotly disputed is the question whether Radbruch was a legal positivist before 1933 and executed an about-face in his thinking due to the advent of Nazism, or whether he continued to develop, under the impression of Nazi crimes, the relativistic values-teaching he had already been advocating before 1933.
The problem of the controversy between the spirit and the letter of the law, in Germany, has been brought back to public attention due to the trials of former East German soldiers who guarded the Berlin Wall—the so-called necessity of following orders. Radbruch's theories are posited against the positivist "pure legal tenets" represented by Hans Kelsen and, to some extent, also from Georg Jellinek
.
In sum, Radbruch's formula
argues that where statutory law
is incompatible with the requirements of justice
"to an intolerable degree", or where statutory law was obviously designed in a way that deliberately negates "the equality that is the core of all justice", statutory law must be disregarded by a judge in favour of the justice principle. Since its first publication in 1946 the principle has been accepted by Germany's Federal Constitutional Court in a variety of cases. Many people partially blame the older German legal tradition of legal positivism
for the ease with which Hitler obtained power in an outwardly "legal" manner, rather than by means of a coup. Arguably, the shift to a concept of natural law
ought to act as a safeguard against dictatorship, an untrammeled State power and the abrogation of civil rights.
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
legal scholar and politician
Politician
A politician, political leader, or political figure is an individual who is involved in influencing public policy and decision making...
. He served as Minister of Justice
Federal Ministry of Justice (Germany)
The Federal Ministry of Justice is a federal ministry in Germany.Under the federal system of Germany, individual states are most responsible for the administration of justice and the application of penalties. The Federal Ministry of Justice devotes itself to creating and changing law in the...
of the German Empire
German Empire
The German Empire refers to Germany during the "Second Reich" period from the unification of Germany and proclamation of Wilhelm I as German Emperor on 18 January 1871, to 1918, when it became a federal republic after defeat in World War I and the abdication of the Emperor, Wilhelm II.The German...
during the early Weimar period
Weimar Republic
The Weimar Republic is the name given by historians to the parliamentary republic established in 1919 in Germany to replace the imperial form of government...
. Radbruch is also regarded as one of the most influential legal philosophers of the 20th century.
Life
Born at LübeckLübeck
The Hanseatic City of Lübeck is the second-largest city in Schleswig-Holstein, in northern Germany, and one of the major ports of Germany. It was for several centuries the "capital" of the Hanseatic League and, because of its Brick Gothic architectural heritage, is listed by UNESCO as a World...
, Radbruch studied law in Munich, Leipzig
University of Leipzig
The University of Leipzig , located in Leipzig in the Free State of Saxony, Germany, is one of the oldest universities in the world and the second-oldest university in Germany...
and Berlin. He passed his first bar exam ("Staatsexamen
Staatsexamen
The ' is a German government licensing examination that future doctors, teachers, pharmacists, food chemists and jurists have to pass to be allowed to work in their profession. The examination is generally organized by government examination agencies which are under the authority of the...
") in Berlin in 1901, and the following year he received his doctorate with a dissertation on "The Theory of adequate causation." This was followed in 1903 by his qualification to teach criminal law in Heidelberg. In 1904, he was appointed Professor of criminal and trial law and legal philosophy in Heidelberg. In 1914 he accepted a call to a professorship in Königsberg
University of Königsberg
The University of Königsberg was the university of Königsberg in East Prussia. It was founded in 1544 as second Protestant academy by Duke Albert of Prussia, and was commonly known as the Albertina....
, and in 1914 he accepted one at Kiel
University of Kiel
The University of Kiel is a university in the city of Kiel, Germany. It was founded in 1665 as the Academia Holsatorum Chiloniensis by Christian Albert, Duke of Holstein-Gottorp and has approximately 23,000 students today...
.
Radbruch was a member of the Social Democratic Party of Germany
Social Democratic Party of Germany
The Social Democratic Party of Germany is a social-democratic political party in Germany...
(SPD), and held a seat in the Reichstag
Reichstag (Weimar Republic)
The Reichstag was the parliament of Weimar Republic .German constitution commentators consider only the Reichstag and now the Bundestag the German parliament. Another organ deals with legislation too: in 1867-1918 the Bundesrat, in 1919–1933 the Reichsrat and from 1949 on the Bundesrat...
from 1920 to 1924. In 1921-22 and throughout 1923, he was minister of justice in the cabinets of Joseph Wirth
Joseph Wirth
Karl Joseph Wirth, known as Joseph Wirth, was a German politician of the Catholic Centre Party who served as Chancellor of Germany from 1921 to 1922.-Biography:...
and Gustav Stresemann
Gustav Stresemann
was a German politician and statesman who served as Chancellor and Foreign Minister during the Weimar Republic. He was co-laureate of the Nobel Peace Prize in 1926.Stresemann's politics defy easy categorization...
. During his time in office, a number of important laws were implemented, such as those giving women access to the justice system, and, after the assassination of Walter Rathenau, the law for the protection of the republic.
In 1926, Radbruch accepted a renewed call to lecture at Heidelberg. After the Nazi seizure of power in 1933, Radbruch was dismissed from his civil service post, as the universities were public entities. During the Nazi period, he devoted himself primarily to cultural-historical work.
Immediately after the end of the Second World War
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
in 1945, he resumed his teaching activities, but died at Heidelberg in 1949 without being able to complete his planned updated edition of his textbook on legal philosophy.
In September 1945, Radbruch published a short paper Fünf Minuten Rechtsphilosophie (five minutes of legal philosophy), that was influential in shaping the jurisprudence of values (Wertungsjurisprudenz), prevalent in the aftermath of World War II as a reaction against legal positivism.
Work
Is-ought problem
The is–ought problem in meta-ethics as articulated by Scottish philosopher and historian, David Hume , is that many writers make claims about what ought to be on the basis of statements about what is...
(sollen). According to this view, "should" can never be derived from "Being." Indicative of the Heidelberg school of neokantianism to which Radbruch subscribed was that it interpolated the value-related cultural studies between the explanatory sciences (being) and philosophical teachings of values (should).
In relation to the law, this triadism shows itself in the subfields of legal sociology, legal philosophy and legal dogma. Legal dogma assumes a place in between. It posits itself in opposition to positive law, as the latter depicts itself in social reality and methodologically in the objective "should-have" sense of law, which reveals itself through value-related interpretation.
The core of Radbruch's legal philosophy consists of his tenets the concept of law and the idea of law. The idea of law is defined through a triad of justice, utility and certainty. Radbruch thereby had the idea of utility or usefuleness spring forth from an analysis of the idea of justice. Upon this notion was based the Radsbrucian formula
Radbruch formula
The Radbruch Formula is a theory of law which was formulated for the first time in an 1946 essay by the German law professor and politician Gustav Radbruch...
, which is still vigorously debated today. The concept of law, for Radbruch, is "nothing other than the given fact, which has the sense to serve the idea of law."
Hotly disputed is the question whether Radbruch was a legal positivist before 1933 and executed an about-face in his thinking due to the advent of Nazism, or whether he continued to develop, under the impression of Nazi crimes, the relativistic values-teaching he had already been advocating before 1933.
The problem of the controversy between the spirit and the letter of the law, in Germany, has been brought back to public attention due to the trials of former East German soldiers who guarded the Berlin Wall—the so-called necessity of following orders. Radbruch's theories are posited against the positivist "pure legal tenets" represented by Hans Kelsen and, to some extent, also from Georg Jellinek
Georg Jellinek
Georg Jellinek was an Austrian public lawyer. Along with Hans Kelsen and the Hungarian Felix Somlo he belonged to the group of Austrian Legal Positivists and was considered to be "the exponent of public law in Austria“.-Early life:From 1867, Jellinek studied law, history of art and philosophy at...
.
In sum, Radbruch's formula
Radbruch formula
The Radbruch Formula is a theory of law which was formulated for the first time in an 1946 essay by the German law professor and politician Gustav Radbruch...
argues that where statutory law
Statutory law
Statutory law or statute law is written law set down by a legislature or by a legislator .Statutes may originate with national, state legislatures or local municipalities...
is incompatible with the requirements of justice
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
"to an intolerable degree", or where statutory law was obviously designed in a way that deliberately negates "the equality that is the core of all justice", statutory law must be disregarded by a judge in favour of the justice principle. Since its first publication in 1946 the principle has been accepted by Germany's Federal Constitutional Court in a variety of cases. Many people partially blame the older German legal tradition of legal positivism
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
for the ease with which Hitler obtained power in an outwardly "legal" manner, rather than by means of a coup. Arguably, the shift to a concept of natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
ought to act as a safeguard against dictatorship, an untrammeled State power and the abrogation of civil rights.