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Published: Fri, 02 Feb 2018
What Do You Understand By Radbruch’s Formula?
German jurist Gustav Radbruch published “Statutory Lawlessness and Supra-Statutory Law” (1946) in the wake of the defeat of the Nazi regime. The short article deals with the difficult problem of legal criminality under the Nazi regime and, to a degree, is an attempt to come to terms with the German’s past in the area of law. For Radbruch there was an acute need for jurists to deal the perversion of the law under the Nazis and to address some of the worst instances of that perversion by reference to the so called ‘grudge-informer case’. Legal positivism, a position which holds that there is no other source of law than positive law (i.e. statutory or posited law), was according to Radbruch the school of thought which informed judicial attitudes during the Nazi regime. National Socialism had successfully hi-jacked the German legal system (partly because and partly by using positivism) in such a way as to cause statutory lawlessness or injustice through the promulgating of immoral positive laws. Radbruch’s formula states that the necessity of promulgation remains but that this s not the only condition which must be fulfilled for a law to be valid. Rather a law must also be formulated in such a way as to respect fundamental human rights. This condition is framed in his ‘inseparability thesis’ which states that in certain cases the requirements of natural justice supercede those of legal certainty. This theory has famously informed the thought of the German High Court and the German Constitutional Court in the grudge-informer case and in the trials of soldiers who shot citizens of the German Democratic Republic in their attempt to cross the Berlin wall, cases which have also been considered by the European Court of Human Rights. On the theoretical level, Radbruch’s thought and particularly the resurrecting of natural law, has provided more fuel to already intense Hart-Fuller debate.
In post-war Germany this had a particularly application when it came to judicial rulings in the trials of individuals who had perpetrated crimes under the Nazi-legality where unjust and criminal behaviour had been committed by statutory laws. This led Radbruch to distinguish between statutory law and law itself, which he believed had not been considered by adherents of positivism. Using this thesis Radbruch cast aside positivism by arguing that statutory law could not, in and of itself, guarantee the moral validity of law. For a law to be morally valid it must be tested by certain supra-statutory conditions otherwise positivism alone could lead to morally unacceptable judgements. Law of reason, natural law and divine law were all elements of these supra-statutory criteria which together can be called fundamental civil and human rights. In the period when Radbruch was writing (before the European Convention on Human Rights and the new German Constitution), this thesis represented a fundamental divergence from positivism and its conception of law. In Radbruch’s 1945 publication ‘Five Minutes for Legal Philosophy’ he outlines his view on how the Nazi regime came to impose their new order on Germany: ‘by means of two maxims, National Socialism brought about obedience: among soldiers with the principle of ‘order is order’ and among lawyers with the principle of ‘law is law’. It is clear from this quote that Radbruch felt that a lack of any supra-statutory condition against which a law could be tested led directly to the unacceptable judgements under the Nazi regime as well as facilitating the ease with much Nazi legality was gained acceptance in pre-war Germany.
As mentioned above, Radbruch’s formula was forged against the background of the grudge-informer cases. The defendant, Puttfarken, was tried and sentenced to life imprisonment for having brought about the conviction and execution of one Gottig, on whom he had informed for writing the words ‘Hitler is a mass murderer and to blame for the war’. The question arose after the war as to whether Puttfarken could be held criminally liable for Gottig’s death, Radbruch later considered whether the judges who had passed the death sentence were also criminally liable. The prosecutor put forward the argument that the defendant’s belief in National Socialism was legally insufficient, that there was no obligation on the defendant to inform on Gottig and that Puttfarken knew that to by so informing a death sentence would be passed against Gottig. Further is was argued that Gottig’s act was not legally treasonable but was the statement of the naked truth and that Puttfarken had not informed the authorities of the act because he felt obliged to do so. Indeed the defendant’s culpability flowed from an admission that he intended to send Gottig to the gallows and that he was guilty of premeditated murder, albeit committed indirectly. Radbruch was emphatic: ‘I myself am of the opinion that there can be no doubt that this is a case of murder committed indirectly’. Subsequently, Puttfarken was later found guilty of being an accomplice to murder, along with the judges who had condemned Gottig, contrary to law and to statute. Radbruch’s formula, which is introduced to solve the case, relates to the values of law or the requirements of the legal system i.e. legal certainty, purposiveness and justice. Almost immediately Radbruch enters into the fray between legal certainty and justice, between apparent and real justice. Radbruch goes on to describe the betrayal of Nazi ‘law’ which he said suffered from an absence of truth and justice, a law which denied the essential characteristic of legal certainty, that of treating equal cases equally.
The case ECHR case of Streletz, Kessler and Krenz v. Germany concerned three applicants who had been senior officials of the former German Democratic Republic (East Germany). K.-H. W. was a soldier in the East Germany army who was stationed on the border between the two German states. After German reunification, including the reunification of the legal systems under the law of the former West Germany, the German courts convicted the applicants Streletz, Kessler and Krenz to terms of imprisonment of five-and-a-half years, seven-and-a-half years and six- and-a-half years respectively for incitement to commit intentional homicide. The three state officials were tried under East German law under the theory that their participation in decisions of the National Defence Council or the Politbüro, which had established the regime for the policing of the former GDR’s border, made them criminally responsible for the deaths of a number of people who had tried to flee the GDR across the border between 1971 and 1989. The soldier, K.-H. W., was given a suspended sentence of one year and ten months’ imprisonment for intentional homicide, having been found responsible for the fatal shooting of a person who had tried to escape across the border in 1972. The German High Court upheld the sentences and the Federal Constitutional Court declared them to be compatible with the Constitution.
The applicants had submitted that at the time (1971-89) their conduct was not punishable under the law of the former GDR or under international law, and that their subsequent conviction by the German courts had therefore contravened the prohibition of the retrospective application of the criminal law pursuant to Article 7 of the European Convention on Human Rights. Article 7 states that ‘No one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offense was committed’.
Do You Agree With This Formula? To What Extend Does It Reflect The Wider Debate In Jurisprudence?
The importance of Radbruch’s formula is generally agreed to be its demonstration of Radbruch’s personal conversion from legal positivism to natural law. Hart considered that prior to this conversion that it was Radbruch’s view that resistance to law was a matter of personal conscience, to be thought out by the individual as a moral problem, and the validity of a law could not be disproved by showing that its requirements were morally evil or even by showing that the effect of compliance with the law would be more evil than the effect of disobedience. Radbruch’s reflections, according to Hart, had led him to fundamental principles of humanitarian morality were part of the very concept of valid legality and that no positive statute, no matter how clear or how conforming to formal criteria of validity, could be valid if it contravened basic principles of morality. Hart goes on to criticise what he called Radbruch’s ‘extraordinary naiveté’ that positivism, in the shape of a separation of morality from law and passiveness in face of state power, had led the German people to consider a law to be a valid law without it meeting the minimum standards of morality. Hart goes further in his criticism in asking why Radbruch’s Germans, supposedly enthralled by positivism, didn’t seem to ask of Nazi laws ‘Ought this rule of law to be obeyed?’. Fuller, on the other hand, contended that Hart’s analysis advanced matters no further. He takes Hart’s question and suggests that, if the answer had been ‘This is a law but it is so evil we will refuse to apply it’, that moral confusion would have resulted as a court would be in the absurd position of refusing to apply something which it admitted to be law. For Fuller Radbruch’s thesis was the result of expediency, both the German courts and Radbruch were living participants in a situation of drastic emergency. Fuller points out that the informer problem was pressing, that Germany’s legal institutions needed rehabilitation and that action was needed before vigilante justice was meted out. Hart’s position that it is better to state ‘these laws may be law but are too evil to be obeyed’ rather than to assert ‘these evil things are not law’ seemed to hold little merit for Fuller. He saw the choice between a moral duty for follow an amoral law as opposed to a moral duty to do what is right and decent to analogous to feeding a starving man and being mimsey with the borogroves. Fuller’s argument that positivism ‘seems to deny the possibility of any bridge between the obligation to obey law and other moral obligations’, is I would submit, a most convincing position, particularly in light of the context of Radbruch’s thesis. The pressing need of the time to rebuild German legal institutions and the do so on a solid foundation where past injustices, done under the veil of Nazi legalism, had been addressed by the new legal order is one which Hart fails to appreciate to the same degree as Fuller. As Fuller put it ‘we can remind ourselves that justice itself is impossible without order, and that we must not lose order itself in the attempt to make it good.
Radbruch’s change of heart in the post-war period, in which he accepted the possibility and necessity of some supra-statutory law is a clear break with his earlier positivist views. As a result of the grudge-informer cases and with the injustices of Hitler’s German legal system he say that legal positivism led to morally unacceptable legal conclusions. This break with positivism was almost overtaken by his second point that positivism itself facilitated the acquiescence of the legal establishment to the National Socialist order. This argument presupposes that positivism was the prevalent attitude of the legal establishment in Germany in the Weimar years and that consequently there was a slavish adherence to such statutory positivism in a practical sense in Germany’s courts. Though beyond the scope of this essay, it does seem a stretch to suppose that the entire legal establishment would have formed such strong positivist attitudes during the Weimar Republic years when there was consistent hostility to the regime from significant sections of the population on the left and right of the political divide. In fact Radbruch’s objectivity on this point is open to some question as a former member of the Social Democratic Party of Germany (SPD) and Minister of Justice. Moreover, National Socialism was not itself positivistic in its outlook, but rather had its own conception of a people’s natural law which was simultaneously reinforcing towards, and supposedly derived from, the idea of the superiority of the German race. Surely this was a kind of supra-statutory law, albeit one based on far-right fundamentalists ideals of racial superiority? In terms of Radbruch’s thesis being an exercise in catharsis, a means of explaining how the German nation succumbed to National Socialism, there is a sense that his argument that the legal establishment was somehow ripe-for-the-picking because of positivism shifts responsibility, first from the lawyers and judges, and then from the population. I would submit that one of the greatest criticisms of the National Socialist regime was that positive statutes were all too often set aside by the a judiciary willing to deliver politically correct conclusions. Radbruch himself says that no obligation existed on Puttfarken to inform on Gottig, the fact that he was informed upon had more to do with the motivation of Puttfarken than the statute under which the act was done. Obviously the sentence meted out to Puttfarken was unjust; certainly it seems to deviate from any sense of penal proportionality. Nevertheless, Radbruch credits legal positivism with too great an influence on the German legal establishment.
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