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The Radbruch formula (German: Radbruchsche Formel) is a legal theory 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[weasel words] 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[weasel words] regard his 1946 essay Gesetzliches Unrecht und übergesetzliches Recht ("Statutory Lawlessness and Supra-Statutory Law"), which first included his theory, as one of the most influential German legal-philosophical writings of the 20th century.[1]
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. His experience under Nazi rule (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:
The conflict between justice and legal certainty may well be resolved in this way: The positive law, secured by pronouncement and power, takes precedence even when its content is unjust (ungerecht) and fails in its purpose of benefitting the people, unless the conflict between positive statute and justice reaches such an intolerable degree that the statute, as 'flawed law (unrichtiges Recht)’ must yield to justice. It is impossible to draw a sharper line between cases of statutory lawlessness (gesetzliches Unrecht) and statutes (Gesetze) that are valid in spite of their flawed content. Another line of distinction, however, can be traced with utmost clarity: Where there is not even an attempt at justice, where equality, which forms the core of justice, is deliberately betrayed in the laying down of positive law, then the statute is not even merely 'flawed law'—rather, it lacks completely the very nature of law. For law, including positive law, cannot be otherwise defined than as a system and an institution whose very meaning is to serve justice. Measured by this standard, whole portions of National Socialist law never attained the dignity of valid law (zur Würde geltendes Recht).[2][3][4][5]
Application in courtedit
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 acts, those acts had been 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 acts in question.[6]
More recently, the Radbruch formula reappeared in trials against border guards in the former East Germany who had shot people attempting to escape to the West under the policy of Schießbefehl.[7]
Referencesedit
^Paulson, Stanley L.; Dreier, Ralf (1999). "Einführung in die Rechtsphilosophie Radbruchs". Gustav Radbruch: Rechtsphilosophie, Studienausgabe [Gustav Radbruch: Legal Philosophy, Study Edition] (in German). Heidelberg: C. F Müller. pp. 235–50.
^Radbruch, Gustav (2006). Translated by Litschewski Paulson, Bonnie; Paulson, Stanley L. "Statutory Lawlessness and Supra-Statutory Law (1946)". Oxford Journal of Legal Studies. 26: 1 at 7 (modified). doi:10.1093/ojls/gqi041.
^Radbruch, Gustav (1973). "Gesetzliches Unrecht und übergesetzliches Recht". In Wolf, Eric; Schneider, Hans-Peter (eds.). Rechtsphilosophie (8 ed.). Stuttgart: Koehler. pp. 339-50 at 345-6.
^Radbruch, Gustav (2006). Translated by Litschewski Paulson, Bonnie; Paulson, Stanley L. "Five Minutes of Legal Philosophy (1945)". Oxford Journal of Legal Studies. 26 (1): 13–15. doi:10.1093/ojls/gqi042. JSTOR 3600539.
^Radbruch, Gustav (1973). "Fünf Minuten Rechtsphilosophie". In Wolf, Eric; Schneider, Hans-Peter (eds.). Rechtsphilosophie (8 ed.). Stuttgart: Koehler. pp. 327-9 at 327.
^Ott, Walter; Rea-Frauchiger, Maria Anna (1992). The Varieties of Legal Positivism (2 ed.). Zürich: Dike. pp. 216–17, 221–6.
^Paulson, Stanley L. (2006). "On the Background and Significance of Gustav Radbruch's Post-War Papers". Oxford Journal of Legal Studies. 26: 17 at 28. doi:10.1093/ojls/gqi043.
December 15, 2023
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You can help expand this article with text translated from the corresponding article in German June 2023 Click show for important translation instructions View a machine translated version of the German article Machine translation like DeepL or Google Translate is a useful starting point for translations but translators must revise errors as necessary and confirm that the translation is accurate rather than simply copy pasting machine translated text into the English Wikipedia Consider adding a topic to this template there are already 8 916 articles in the main category and specifying topic will aid in categorization Do not translate text that appears unreliable or low quality If possible verify the text with references provided in the foreign language article You must provide copyright attribution in the edit summary accompanying your translation by providing an interlanguage link to the source of your translation A model attribution edit summary is Content in this edit is translated from the existing German Wikipedia article at de Radbruchsche Formel see its history for attribution You should also add the template Translated de Radbruchsche Formel to the talk page For more guidance see Wikipedia Translation The Radbruch formula German Radbruchsche Formel is a legal theory 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 weasel words 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 weasel words regard his 1946 essay Gesetzliches Unrecht und ubergesetzliches Recht Statutory Lawlessness and Supra Statutory Law which first included his theory as one of the most influential German legal philosophical writings of the 20th century 1 The Radbruch formula has a number of historical antecedents such as Saint Augustine s maxim an unjust law is no law at all Formation and content editBefore 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 His experience under Nazi rule 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 The conflict between justice and legal certainty may well be resolved in this way The positive law secured by pronouncement and power takes precedence even when its content is unjust ungerecht and fails in its purpose of benefitting the people unless the conflict between positive statute and justice reaches such an intolerable degree that the statute as flawed law unrichtiges Recht must yield to justice It is impossible to draw a sharper line between cases of statutory lawlessness gesetzliches Unrecht and statutes Gesetze that are valid in spite of their flawed content Another line of distinction however can be traced with utmost clarity Where there is not even an attempt at justice where equality which forms the core of justice is deliberately betrayed in the laying down of positive law then the statute is not even merely flawed law rather it lacks completely the very nature of law For law including positive law cannot be otherwise defined than as a system and an institution whose very meaning is to serve justice Measured by this standard whole portions of National Socialist law never attained the dignity of valid law zur Wurde geltendes Recht 2 3 4 5 Application in court editBoth 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 acts those acts had been 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 acts in question 6 More recently the Radbruch formula reappeared in trials against border guards in the former East Germany who had shot people attempting to escape to the West under the policy of Schiessbefehl 7 References edit Paulson Stanley L Dreier Ralf 1999 Einfuhrung in die Rechtsphilosophie Radbruchs Gustav Radbruch Rechtsphilosophie Studienausgabe Gustav Radbruch Legal Philosophy Study Edition in German Heidelberg C F Muller pp 235 50 Radbruch Gustav 2006 Translated by Litschewski Paulson Bonnie Paulson Stanley L Statutory Lawlessness and Supra Statutory Law 1946 Oxford Journal of Legal Studies 26 1 at 7 modified doi 10 1093 ojls gqi041 Radbruch Gustav 1973 Gesetzliches Unrecht und ubergesetzliches Recht In Wolf Eric Schneider Hans Peter eds Rechtsphilosophie 8 ed Stuttgart Koehler pp 339 50 at 345 6 Radbruch Gustav 2006 Translated by Litschewski Paulson Bonnie Paulson Stanley L Five Minutes of Legal Philosophy 1945 Oxford Journal of Legal Studies 26 1 13 15 doi 10 1093 ojls gqi042 JSTOR 3600539 Radbruch Gustav 1973 Funf Minuten Rechtsphilosophie In Wolf Eric Schneider Hans Peter eds Rechtsphilosophie 8 ed Stuttgart Koehler pp 327 9 at 327 Ott Walter Rea Frauchiger Maria Anna 1992 The Varieties of Legal Positivism 2 ed Zurich Dike pp 216 17 221 6 Paulson Stanley L 2006 On the Background and Significance of Gustav Radbruch s Post War Papers Oxford Journal of Legal Studies 26 17 at 28 doi 10 1093 ojls gqi043 Retrieved from https en wikipedia org w index php title Radbruch formula amp oldid 1180709542, wikipedia, wiki, book, books, library,
