Abstract
In most legal systems, courts frequently apply (and see themselves as bound to apply) norms that are not valid within their legal system, and the courts also on occasion do not apply (and see themselves as bound not to apply) otherwise applicable norms that are valid norms within their legal system. Judges’ roles include the resolution of disputes where the ruling norms come from outside the home legal system (or, from any legal system), and the courts may also have responsibilities to develop the law and to avoid unjust or absurd applications of otherwise valid norms. This paper argues that it would thus be more charitable to read the Radbruch Formula as a prescription for judicial decision-making rather than as a descriptive, conceptual or analytical claim about the nature of law. The suggested change will not affect the place of the Radbruch Formula within debates about the rule of law or the role of courts. The issue remains the same: whether it is consistent with the rule of law not to apply norms otherwise legally valid because they are extremely unjust. Radbruch argued that this is consistent with the general understanding of law and the expectations for law. Other commentators have been concerned that Radbruch’s approach undermines the rule of law by giving significant and unpredictable discretion to judges to refuse to apply otherwise valid norms.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Most commentators consider these post-War writings to be radical changes of view, in relation to Radbruch’s pre-War writings (v.gr. Hart 1958, 616), but this claim of discontinuity has been contested. (v.gr. Paulson 1995, 2006; Leawoods 2000, 501–3) Resolving this dispute about continuity is not important for present purposes.
In focusing on Radbruch’s “Formula”, and associated post-War writings, I do not mean to slight the significance of his extensive earlier writings, on which, vid. v.gr. Pfordten (2008) and Leawoods (2000).
- 2.
United States Supreme Court Justice Louis Brandeis made a similar observation in relation to precedent: “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.” Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting). Of course, the Brandeis quotation, with its careful limitation of “in most matters”, leaves open the argument that the treatment of truly unjust laws should be different.
- 3.
Fuller cites Gustav Radbruch, “Die Erneuerung des Rechts”, in 2 Die Wandlung 9 (Fuller 1954, 484fn).
- 4.
Apparently, both Hart and Fuller misunderstood the holding of a post-War West German case they were discussing, as it had been misreported in an earlier issue of the Harvard Law Review (Pappe 1960, 261–3).
- 5.
“Intolerable dislocations would have resulted from any… wholesale outlawing of all that had occurred [under the Nazis]. On the other hand, it was equally impossible to carry forward into the new government the effects of every Nazi perversity that had been committed in the name of law….” (Fuller 1958, 648).
- 6.
One should note that The World Justice Project has created a “Rule of Law Index”, which ranks countries based on dozens of factors, based on a view of the rule of law which is primarily procedural. The ranking and information about it can be found at http://worldjusticeproject.org/rule-of-law-index/.
- 7.
Rivers’ preference, like that of both Hart and Fuller, is for retroactive legislation (Rivers 1999).
- 8.
On Raz’s view about the obligation to obey the law (vid. Raz 1994, 325–38).
- 9.
Refusing enforcement on Radbruchian grounds is to be distinguished from more conventional forms of judicial invalidation of otherwise valid norms – v.gr. holding the norm invalid because it conflicted with a provision of the regime’s own constitution or supra-national constitution or treaty to which the country is a signatory, like the European Convention on Human Rights.
- 10.
At least in the first formulation of the “Formula”. As discussed above, the second formulation refers to the intentions with which legislation was enacted, but that still does not go to the sort of procedural inquiries usually associated with the rule of law.
- 11.
If one adopts a substantive version of the rule of law, that includes requirements for protecting certain human rights, then laws unjust because they violate those rights will also be (by definition) contrary to the rule of law. However, as discussed above, this is a distinctly minority understanding of the rule of law. Additionally, there are likely to be laws that are unjust without necessarily violating whatever shortlist of human rights a substantive rule of law might include.
- 12.
Some would argue that there are also plenty of examples of extremely unjust laws (enacted with proper procedures) in the United States and Western Europe, but that is a controversy far beyond the scope of this article.
- 13.
Though, as earlier noted, vid. supra note 1, there are also those who claim a greater continuity and unity in Radbruch’s work.
Regarding legal positivism, Radbruch, along with Lon Fuller, asserted that legal positivism played a role in the Nazi’s rise to power in Germany (vid. Paulson 1994).
- 14.
- 15.
I elaborate this point in the context of a critique of both Alexy and the later Radbruch (vid. Bix 2006).
- 16.
At least of the legal systems with which the author is familiar.
- 17.
Of course, in most jurisdictions courts also have the authority, and frequently the duty, to refuse to apply a statute when its application would be contrary to the country’s constitution or basic law, or contrary to the country’s treaty obligations. However, this example is less useful for the purpose of the present discussion, as many commentators would characterize the conflict with the constitution or the treaty as making the statute invalid.
- 18.
I am putting aside, for the moment, the claim occasionally still heard that most common law reasoning is merely a process of the law “work[ing] itself pure”, Omychund v. Barker (Ch. 1744), 1 Atk. 21 at 33, 26 ER 15 at 22–3, i.e. that such decisions are merely discovering norms that were, in some sense, already part of the law. Few commentators would accept this as universally true of common law decision-making, and there is little evidence of which I am aware that Radbruch supported such a view.
References
Alexy, R. 1998. Law and correctness. Current Legal Problems 51: 205.
Alexy, R. 1999. A defence of Radbruch’s formula. In Recrafting the rule of law: The limits of legal order, ed. D. Dyzenhaus. Oxford: Hart Publishing.
Alexy, R. 2002. The argument from injustice: A reply to legal positivism. Trans. S.L. Paulson and B. Litschewski-Paulson. Oxford: Clarendon Press.
Bix, B.H. 2005. Legal positivism. In The Blackwell guide to the philosophy of law and legal theory, ed. M.P. Golding and W.A. Edmundson. Oxford: Blackwell Publishing.
Bix, B.H. 2006. Robert Alexy, Radbruch’s formula, and the nature of legal theory. Rechtstheorie 37: 139. Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=892789.
Dworkin, R. 1977. Taking rights seriously. Cambridge, Massachusetts: Harvard University Press.
Fuller, L.L. 1954. American legal philosophy at mid-century. Journal of Legal Education 6: 457.
Fuller, L.L. 1958. Positivism and fidelity to law – A reply to professor Hart. Harvard Law Review 71: 630.
Fuller, L.L. 1969. The morality of law, 2nd ed. New Haven: Yale University Press.
Gray, C.B. 1999. The philosophy of law: An encyclopedia, II vols. New York: Garland Publishing.
Haldemann, F. 2005. Gustav Radbruch vs. Hans Kelsen: A debate on Nazi law. Ratio Juris 18: 162.
Hart, H.L.A. 1958. Positivism and the separation of law and morals. Harvard Law Review 71: 593.
Leawoods, H. 2000. Gustav Radbruch: An extraordinary legal philosopher. Washington University Journal of Law and Policy 2: 489.
Pappe, H.O. 1960. On the validity of judicial decisions in the Nazi era. Modern Law Review 23: 260.
Paulson, S.L. 1994. Lon L. Fuller, Gustav Radbruch, and the ‘positivist’ theses. Law and Philosophy 13: 313.
Paulson, S.L. 1995. Radbruch on unjust laws: Competing earlier and later views? Oxford Journal of Legal Studies 15: 489.
Paulson, S.L. 2006. On the background and significance of Gustav Radbruch’s post-war papers. Oxford Journal of Legal Studies 26: 17.
Pfordten, D. van der. 2008. Radbruch as an affirmative holist: On the question of what ought to be preserved of his philosophy. Ratio Juris 21: 287.
Radbruch, G. 1950. Legal philosophy. In The legal philosophies of Lask, Radbruch, and Dabin, ed. Patterson, E.W. (trans. Wilk, H.). Cambridge, MA: Harvard University Press.
Radbruch, G. 2006a. Statutory lawlessness and supra-statutory law (trans. Litschewski-Paulson, B. and Paulson, S.L.). Oxford Journal of Legal Studies 26: 1.
Radbruch, G. 2006b. Five minutes of legal philosophy (trans. Litschewski-Paulson, B. and Paulson, S.L.). Oxford Journal of Legal Studies 26: 13.
Raz, J. 1994. Ethics in the public domain. Oxford: Clarendon.
Raz, J. 2009. The authority of law, 2nd ed. Oxford: Oxford University Press.
Rivers, J. 1999. The interpretation and invalidity of unjust laws. In Recrafting the rule of law: The limits of legal order, ed. D. Dyzenhaus. Oxford: Hart Publishing.
Sartor, G. 2009. Legality policies and theories of legality: From Bananas to Radbruch’s formula. Ratio Juris 22: 218.
Tamanaha, B.Z. 2004. On the rule of law: History, politics, theory. Cambridge: Cambridge University Press.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2013 Springer Science+Business Media Dordrecht.
About this chapter
Cite this chapter
Bix, B.H. (2013). Radbruch’s Formula, Conceptual Analysis, and the Rule of Law. In: Flores, I., Himma, K. (eds) Law, Liberty, and the Rule of Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 18. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4743-2_5
Download citation
DOI: https://doi.org/10.1007/978-94-007-4743-2_5
Published:
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-007-4742-5
Online ISBN: 978-94-007-4743-2
eBook Packages: Humanities, Social Sciences and LawPhilosophy and Religion (R0)