Radbruch (He sucks at clarification)

Question 1

What is the only thing Radbruch is literally known for?

Answer 1

The Radbruch Formula
• The First formula says that certainty is put first and foremost, until injustice reaches an intolerable degree.

• The Second Formula is supposed to be a clarification to what an “intolerable degree” is.

Question 2

What is the Radbruch Formula?

Answer 2

1. Law is valid ‘even when its content is unjust and fails to benefit the people’, unless the law is so flawed that it must yield to justice
2. Intolerable degree = No attempt at justice (i.e. equality)

• (1946 article) First formula: “positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches an intolerable degree that the statute as ‘flawed law’ must yield to justice.”
Second Formula: impossible to draw sharper line between statutory lawlessness and statutes that are valid despite their flaws. One line of distinction… can be draw with utmost clarity: Where there is not even an attempt at justice. Where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute Is not merely ‘flawed law’ it lacks completely the very nature of law.

Question 3

What are some critics of Radbruch?

Answer 3

• Is ‘equality’ the only core of justice? One can do immoral things but equally affect everyone.
• Second formulation is very subjective; Nazis interpreted what they were doing as right.
• Radbruch gives no clarification on the definition of “extreme justice” (Borowski 2011)

Question 4

Why didn’t Radbruch directly and specifically make the first formula instructions for judges?

Answer 4

At the time his formula came out, the social and political culture was against the “Free Law Movement” (suggesting judges should have discretion to modify/refuse to enforce otherwise valid law)