Radbruch, Gustav (1878–1949)

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RADBRUCH, GUSTAV
(1878–1949)

Gustav Radbruch was a German legal philosopher whose name and work have become widely known outside Germany only since the end of World War II. During his lifetime, the interests and activities of scholar, politician, and reformer of law were closely intermingled. After World War I, Radbruch became active in the Social Democratic Party and twice served as minister of justice of the Weimar Republic. His principal work was the draft of a new criminal code. Later he held a chair of law at the University of Heidelberg, from which he was dismissed by the Nazi regime. After World War II he was recalled and exercised a predominant influence in the reorientation of German legal education and philosophy until his death.

Radbruch's legal philosophy, generally known as "relativism," is closely akin to the position of his friend and teacher Max Weber. Radbruch believed, like Weber, that values could not be scientifically proved and that they were "a matter of conscience (Gewissen ), not of science (Wissenschaft )," This in no way implied indifference to values. Radbruch differed both from Rudolf Stammler, who sought to formulate a theoretically valid concept of justice, and from Hans Kelsen, who detached legal science altogether from a philosophy of values. Radbruch, while starting from the Kantian distinction of "is" (Sein ) and "ought" (Sollen ), was guided mainly by the teachings of Heinrich Rickert and Emil Lask in treating law as a Kulturwissenschaft, a science directed to the realization of values. He therefore considered that the task of legal philosophy was to relate legal reality to basic ideas. But the truth of specific ideas and values cannot be scientifically proved. Radbruch instead developed—and applied to numerous specific problems of law—a series of antinomies of legal values. Thus, the Aristotelian idea of distributive justice, which directs equals to be treated equally, says nothing about the perspective from which they are to be characterized as equals or unequals. Justice, which cannot yield objective criteria of equality, must be supplemented by a second value, "utility," and a third, "security." Between these three values there is constant tension. In another perspective, law can be directed to individual values, collective values, or work values. Accordingly, a legal system emphasizes either individualism, collectivism, or transpersonalism. For the first, the ultimate idea is liberty; for the second, the nation; and for the third, civilization.

After the war, Radbruch recoiled from the extremes of tolerance—as practiced by the Weimar Republic during the rise of the Nazi movement—having witnessed the unprecedented barbarism of the Third Reich, which was largely covered by a formal notion of law. He tentatively turned to a moderate natural-law philosophy, holding that in certain extreme cases a contradiction between positive law and justice might reach such an intolerable degree that the law as unjust law (unlawful law, unrechtiges Recht ) must cede to the higher demands of justice. Radbruch died before he could elaborate his thesis beyond the postulate that special courts should be empowered to adjudge the validity of laws.

Bibliography

works by radbruch

Einführung in die Rechtswissenschaft. Leipzig, 1907. Edited by K. Zweigert. Stuttgart: Koehler, 1961.

Rechtsphilosophie. Leipzig, 1914. 3rd ed. revised and enlarged, Leipzig: Quelle and Meyer, 1932. 5th ed., completed with a preface by Erik Wolf, Stuttgart: Koehler, 1956. Translated from the German edition by Kurt Wilk with introduction by E. W. Patterson in The Legal Philosophies of Lask, Radbruch and Dabin. Cambridge, MA: Harvard University Press, 1950.

"Gesetzliches Unrecht und übergesetzliches Recht." Süddeutsche Juristenzeitung 5 (1946): 107ff.

Der Geist des englischen Rechts. 2nd ed. Heidelberg, 1947.

Vorschule der Rechtsphilosophie. Willsbach: Scherer, 1947.