Title: Content and practical significance of Radbruch’s formula
Abstract:1. The term “Radbruch’s formula” commonly referres to Gustav Radbruch’s 1946 article Gesetzliches Unrecht und ubergesetzliches Recht (“Statutory Non-Law and Suprastatutory Law”). In this article, Radb...1. The term “Radbruch’s formula” commonly referres to Gustav Radbruch’s 1946 article Gesetzliches Unrecht und ubergesetzliches Recht (“Statutory Non-Law and Suprastatutory Law”). In this article, Radbruch says: “Preference [in solving the conflict of legal certainty and justice, by Author] is given to the duly enacted law and secured by state power as it is, even when it is unjust and fails to benefit the people, unless its conflict with justice reaches so intolerable a level that statute becomes, in effect ’false law’ [unrichtiges Recht] and must therefore yield to justice”. (Translated by Stanley L. Paulson) Radbruch’s formula in fact comprises two formulae. In addition to the aforementioned first formula – the socalled Unertraglichkeitsthese (“intolerability thesis”) – Radbruch had developed another differentiation, the socalled Verleugnungsthese (“disavowal thesis”). Radbruch continues: “Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the assurance of positive law, than the statute is not merely ’false law’ [unrichtiges Recht], it lacks completely the very nature of law”. (Transl. by St. L. Paulson) Both formulae make prescriptive assumptions about statutebased law. The socalled “intolerability thesis” faces the problem of legal validity (Geltung des Rechts), distinguishing statutory law, which is unjust but valid, from statute law, that has lost itsRead More
Publication Year: 2004
Publication Date: 2004-01-01
Language: en
Type: article
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Cited By Count: 1
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