Radbruch Formula

The Radbruch formula (German: ''Radbruchsche Formel'') is a theory of law which was first formulated in a 1946 essay by the German law professor and politician Gustav Radbruch. According to the theory, a judge who encounters a conflict between a statute and what he perceives as just, has to decide against applying the statute if – and only if – the legal concept behind the statute in question seems either "unbearably unjust" or in "deliberate disregard" of human equality before the law.

Radbruch's formula is rooted in the situation of a civil law system. It is believed to be a reaction to Radbruch's experience of the judiciary in Nazi Germany and has been applied in the decision of courts in the Federal Republic of Germany numerous times. Some authors regard his essay ''Gesetzliches Unrecht und übergesetzliches Recht'', which first included his theory, as one of the most influential German legal-philosophical writings of the 20th century.For example S. Paulson and R. Dreier, 'Einführung in die Rechtsphilosophie Radbruchs', in: Gustav Radbruch: Rechtsphilosophie, Studienausgabe (Heidelberg, 1999), pp. 235–250

Formation and content

Before the Second World War, Radbruch seems to have been a supporter of unconditional legal positivism, which demands a strict separation between law and morality. In consequence, judges would have to apply positive law (i.e. statutes) without exception. The experience of the Third Reich (where Radbruch, then a professor, was banned from teaching) seems to have modified his view. Shortly after the end of the war, Radbruch first stated his formula in a 1946 essay:

Excerpt:

Excerpt (translation):

Radbruch restated his concept in the book ''Vorschule der Rechtsphilosophie'' (published posthumously).

Reception in court

Both the German Federal Constitutional Court and the Federal Court of Justice have applied Radbruch's formula numerous times. Its first court appearances were in cases concerned with National Socialist crimes. The defendants in those cases argued that, according to Nazi statutes valid at the time of their actions, their deeds were legal. The courts used Radbruch's formula to argue that some statutes were so intolerable that they had not been law in the first place and consequently could not be used to justify the deeds in question. More recently, the Radbruch formula reappeared in trials against East German soldiers, ordered to protect the inner-German border.

References

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Philosophy of law