Gustav Radbruch (1878-1949), German philosopher of law and statesman, was born into a well-to-do middle-class family. A baptized Lutheran, Radbruch was for many years critical of his church, but later in life he became increasingly religious, especially when confronted with the Nazi dictatorship. He then practiced a “Christianity-in-substance,” professing “the belief of the unbeliever.”
His excellent education in Latin and Greek at the Liibeck Gymnasium was to make him a friend of the classics for the rest of his life. His interest in social questions dated from an early age, and he began his studies of law and economics while at the University of Munich. He continued his studies in law at the University of Leipzig, where he read the works of Rudolf von Jhering and Rudolf Sohm, famous teachers at that university. At the same time, he was influenced by Lujo Bren-tano’s idea of a liberally tempered socialism.
Radbruch attended Binding’s lectures at Leipzig, and although he was less impressed by Binding’s conservative opinions about the law than he was later by the new ideas that Franz von Liszt was teaching at Berlin, he nevertheless learned from Binding to do careful legal research according to the best historical methods of contemporary juris prudence. From boyhood Radbruch was interested in legal history, with a special liking for memoirs and anecdotes. His legal research was influenced by Karl Biicher’s empirical psychologism, by Wilhelm Wundt’s psychological ethnology, and by Karl Lamprecht’s sociological history. Other sources of intellectual excitement were certain chapters of Marx’s Capital, Gerhart Hauptmann’s revolutionary play The Weavers, and Richard Dehmel’s Song of a Workman. After he had obtained his doctorate at Berlin, Radbruch became, on Liszt’s recommendation, an unsalaried lecturer at the University of Heidelberg. There he became a friend of the philosophers Emil Lask and Heinrich Levy, who brought him into contact with the “Heidelberg Neo-Kant-ianism” of Wilhelm Windelband and Heinrich Rickert. Inspired by this philosophy, Radbruch turned his attention from Liszt’s empirical and psychological monism to the problems of a philosophy of values.
The results of these various studies were two books, Einfiihrung in die Rechtswissenschaft (1910) and Grundziige der Rechtsphilosophie (1914). Influenced also by Max Weber, Radbruch developed in these books two of the principles of his thought: the difference between “is” and “ought” (what he called “methodological dualism”) and the axiom of “relativism” (the idea that values cannot be proved but only confessed). He then tried to combine these philosophical ideas with political theory; relativism, he asserted, stipulates tolerance, which is an indispensable condition of democracy. This thesis led Radbruch to formulate a threefold theory of political ideologies: “individualism” as applied to society produces a laissez-faire economy and gives pre-eminence to individual liberty; from “collectivism” follows the realization of a socialist economy and a general emphasis on the community; “transpersonalism”—in political practice “conservatism”—places a primary emphasis onXS cultural institutions.
A highly skillful teacher, Radbruch influenced a considerable number of talented foreign students, especially Polish and Russian emigrants. Together with his friend Hermann Kantorowicz, the initiator of the free-law movement, Radbruch pleaded for a sociological, functional jurisprudence (Interes-senjurisprudenz, jurisprudence of interests) instead of the formalistic approach of the still prevailing Begriffsjurisprudenz (jurisprudence of concepts, analytical positivism), which conceived of the law as a body of rules applicable to every possible case regardless of the interests and social problems involved. Determined to prove his socio-legal ideas, he held positions in Bruchsal as town councilor, as a member of the welfare office, and also for a time in the penitentiary.
In 1914 Radbruch became a professor of criminal law at Kbnigsberg. When World War I began, he initially did voluntary work in a military hospital, but toward the end of the war he took part, as an officer, in several battles in France. Although a pacifist, he came to see military service as a moral obligation. “I go to prove my soul,” he wrote to a friend, quoting from Browning, and added, “I want to hold solidarity with the simple folk.”
When the war was over. Radbruch became a professor at Kiel. He established a new institute for adult education there (a Volkshochschule) and wrote articles about the need for civics instruction in the schools. During the revolt of the German army (the Kapp Putsch) in March 1920, Radbruch was arrested for a brief period and threatened with a death sentence, but his courage and ingenuity saved him. Shortly thereafter, he was elected to the German Reichstag and twice held the position of minister of justice; he was particularly influential in the area of penal reform. He resigned from his political positions in 1923, returning to his chair of criminal and legal philosophy at Kiel, and after 1926 he taught at Heidelberg. The subject of his inaugural lecture at Heidelberg was the challenge of political self-education (1927), and on Constitution Day, 1928, he spoke before the Reichstag on the duties of the responsible citizen in a democracy (1929).
The 1932 edition of his Rechtsphilosophie contained a new theory of social democracy. The principal thesis expounded was that of the unre-solvable antinomies of the fundamental aspects of the idea of law: justice, legal certainty, and expediency. These “jointly govern law in all its aspects, although they may sharply contradict one another” ( 1950, p. 111). Justice demands conformity to fundamental moral values; expediency (Zweckmassigkeit) pays attention to the social function of law; legal certainty primarily demands formal acknowledgment of the law and of judicial decisions regardless of whether or not they are just. By stressing equally each of these components, Radbruch tried to fight the fatal one-sidedness that raises any one of these principles to sole dominion. On the eve of totalitarian monism in Germany, he pleaded for the many-sidedness of the idea of law.
In his effort to “spiritualize” socialism—in accordance with Goethe’s pattern for an ideal community in Wilhelm Meisters Wanderjahre—Radbruch aimed at a closer relationship between socialism and religion. In 1919 he had published, together with Paul Tillich, the Religionsphilosophie der Kultur, and in 1922 he wrote the Kulturlehre des Sozialismus, with the intention of reconciling socialism with humanism.
In April 1933, the Nazi regime dismissed Rad-bruch as an “untrustworthy official.” His house was searched and his private papers confiscated. Thus excluded from public activity, he began to write a biography of the famous criminologist, Anselm von Feuerbach. This important work, highly esteemed by Thomas Mann, was published in Vienna in 1934. Another remarkable book, Elegantiae juris criminalis (1938) contains essays on historical subjects. Gestalten und Gedanken (1944), a collection of beautiful studies on art and literature, was written during the war.
When Radbruch was reinstated in 1945, he was 67 years old and no longer in good health. His only son had died during the war in Russia. Unable to resume the burden of political activity, he contented himself with giving lectures. He did have the consolation that during his compulsory 12-year absence from the German academic scene, his works were greatly appreciated abroad. In 1935 he had spent several months visiting University College, Oxford, and studying English law. These studies resulted in Der Geist des englischen Rechts (1946a) and in several essays, of which “Gesetz-liches Unrecht und iibergesetzliches Recht” (1946b) became the most famous. This essay shows a tendency toward natural-law doctrines, an inclination to evolution, rather than revolution, in Radbruch’s views. On his seventieth birthday, on November 11, 1948, a Festgabe entitled Beitrage zur Kultur-und Rechtsphilosophie was dedicated to him (Beiträge … 1948). One year later he had a stroke and died.
The works of Radbruch were frequently criticized during his lifetime by German writers who found fault with his “materialistic positivism,” his “enlightened rationalism,” and his “unscientific relativism.” Conservatives blamed him for being revolutionary, liberals for being a socialist, communists for being bourgeois. Idealists called him a realist, historians labeled him a philosopher, and philosophers rebuked his “simple jurisprudence.” Sociologists disliked his “poetical sense”; lawyers could not accept his “humanistic bent.” The abundance of Radbruch’s spirit, his tolerance, and humanity were as irritating to certain narrow-minded people as his versatility was shocking to others. Now he has won recognition, and it is realized that his relativism is of the greatest value for the necessary self-criticism of the law and of lawyers. He revealed the provisional character of all human laws, the questionable character of all self-righteous jurisdiction, and the inhumanity of all intolerant totalitarianism. He became one of the most important figures in modern legal philosophy in Germany and acquired a receptive audience in the rest of the world.
[For the historical context of Radbruch’s work, see the biographies ofBrentano; Bucher; Lamprecht; Weber, Max; Wundt. For discussion of the subsequent development of Radbruch’s ideas, seeJurisprudence; Law; Political Theory; and the biographies ofBrecht; Kantorowicz; Kelsen.]
(1910) 1961 Einfilhrung in die Rechtszvissenschaft. 10th rev. ed. Stuttgart (Germany): Koehler.
(1914) 1950 Gustav Radbruch: Legal Philosophy. Pages 43–224 in The Legal Philosophies of Lask, Radbruch, and Dabin. Translated by Kurt Wilk. 20th Century Legal Philosophy Series, Vol. 4. Cambridge, Mass.: Harvard Univ. Press. → First published as Grundziige der Rechtsphilosophie. The 1950 edition was translated from the revised and rewritten edition of 1932, published as Rechtsphilosophie. A sixth German edition, edited by Erik Wolf, was published in 1963.
1919 Radbruch, Gustav; and Tillich, PaulReligionsphilosophie der Kultur: Zwei Entwiirfe. Berlin: Reu-ther. → “Uber Religionsphilosophie des Rechts,” by Gustav Radbruch; “Uber die Idee einer Theologie der Kultur,” by Paul Tillich.
(1922) 1949 Kulturlehre des Sozialismus: Ideologische Betrachtungen. 3d rev. ed. Berlin: Dietz.
1927 Der Mensch im Recht: Heidelberger Antrittsvorle-sung. Tubingen (Germany): Mohr.
1929 Verfassungsrede gehalten von prof. dr. Gustav Radbruch bei der Feier der Reichsregierung am 11. august 1928. Berlin: Reichszentrale fur Heimatdienst.
(1934) 1957 Paul Johann Anselm Feuerbach: Ein Juris-tenleben. 2d ed., edited by Erik Wolf. Gbttingen (Germany ): Vandenhoeck & Ruprecht.
1936a Anglo-American Jurisprudence Through Continental Eyes. Law Quarterly Review 52:530-545.
1936b Justice and Equity in International Relations. Pages 1–13 in Justice and Equity in the International Sphere. New Commonwealth Institute Monographs, Series B, No. 1. London: Constable.
1936c Jurisprudence in the Criminal Law. Journal of Comparative Legislation and International Law 18: 212-225.
(1938) 1950 Elegantiae juris criminalis: Vierzehn Studien zur Geschichte des Strafrechts. 2d ed., rev. Basel: Verlag fur Recht und Gesellschaft.
1944 Gestalten und Gedanken: Acht Studien. Leipzig: Koehler & Amelang.
(1946a) 1958 Der Geist des englischen Rechts. 4th ed. Gottingen (Germany): Vandenhoeck & Ruprecht.
(1946b) 1950 Gesetzliches Unrecht und iibergesetzliches Recht. Pages 347–357 in Gustav Radbruch, Rechtsphilosophie. 4th ed. Stuttgart (Germany): Koehler.
Beitrage zur Kultur- und Rechtsphilosophie. 1948 Heidelberg (Germany): Rausch.→ See especially pages 280–287 for a bibliography of Radbruch’s works.
Bodenheimer, Edgar 1962 Jurisprudence: The Philosophy and Method of the Law. Cambridge, Mass.: Harvard Univ. Press. → See especially pages 131—134.
Brecht, Arnold 1959 Political Theory: The Foundation of Twentieth-century Political Thought. Princeton Univ. Press. → See especially pages 233-236.
Campbell, Archibald H. 1949 Gustav Radbruch’s Rechtsphilosophie and the English Jurisprudence. Preface by Dr. E. Wolf. Miinden (Germany): Nowack.
Chroust, Anton H. 1944 Philosophy of Law of Gustav Radbruch. Philosophical Review 53:23-45.
Friedmann, Wolfgang (1944)1960 Legal Theory. 4th ed. London: Stevens.
Fuller, Lon L. 1954 American Legal Philosophy at Mid-century. Journal of Legal Education 6:457-485. → See especially pages 481–485 on the legal philosophy of Gustav Radbruch.
Patterson, Edwin W. 1953 Jurisprudence: Men and Ideas of the Law. New York: Foundation Press. -” See especially pages 399—403.
Wolf, Erik 1958 Revolution or Evolution in Gustav Radbruch’s Legal Philosophy. Natural Law Forum 3: 1-23.