Gustav Radbruch

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Gustav Radbruch
RadbruchGustav.jpg
Minister of Justice
In office
26 October 1921 14 November 1922
Chancellor Joseph Wirth
Preceded by Eugen Schiffer
Succeeded by Rudolf Heinze
In office
13 August 1923 23 November 1923
Chancellor Gustav Stresemann
Preceded by Rudolf Heinze
Succeeded by Erich Emminger
Personal details
Born(1878-11-21)21 November 1878
Lübeck, Schleswig-Holstein, Prussia
Died23 November 1949(1949-11-23) (aged 71)
Heidelberg
Political party Social Democratic Party
Alma mater University of Berlin
University of Heidelberg
Profession Lawyer, legal philosopher

Gustav Radbruch (21 November 1878 – 23 November 1949) was a German legal scholar and politician. He served as Minister of Justice of Germany during the early Weimar period. Radbruch is also regarded as one of the most influential legal philosophers of the 20th century.

Germany Federal parliamentary republic in central-western Europe

Germany, officially the Federal Republic of Germany, is a country in Central and Western Europe, lying between the Baltic and North Seas to the north, and the Alps to the south. It borders Denmark to the north, Poland and the Czech Republic to the east, Austria and Switzerland to the south, France to the southwest, and Luxembourg, Belgium and the Netherlands to the west.

A politician is a person active in party politics, or a person holding or seeking office in government. Politicians propose, support and create laws or policies that govern the land and, by extension, its people. Broadly speaking, a "politician" can be anyone who seeks to achieve political power in any bureaucratic institution.

Weimar Republic Germany state in the years 1918/1919–1933

The Weimar Republic is an unofficial historical designation for the German state from 1918 to 1933. The name derives from the city of Weimar, where its constitutional assembly first took place. The official name of the republic remained Deutsches Reich unchanged from 1871, because of the German tradition of substates. Although commonly translated as "German Empire", the word Reich here better translates as "realm", in that the term does not have monarchical connotations in itself. The Reich was changed from a constitutional monarchy into a republic. In English, the country was usually known simply as Germany.

Contents

Life

Born in Lübeck, Radbruch studied law in Munich, Leipzig and Berlin. He passed his first bar exam ("Staatsexamen") in Berlin in 1901, and the following year he received his doctorate with a dissertation on "The Theory of Adequate Causation". This was followed in 1903 by his qualification to teach criminal law in Heidelberg. In 1904, he was appointed Professor of criminal and trial law and legal philosophy in Heidelberg. In 1914 he accepted a call to a professorship in Königsberg, and later that year assumed a professorship at Kiel. [1] [2]

Lübeck Place in Schleswig-Holstein, Germany

Lübeck is a city in Schleswig-Holstein, northern Germany, and one of the major ports of Germany. On the river Trave, it was the leading city of the Hanseatic League, and because of its extensive Brick Gothic architecture, it is listed by UNESCO as a World Heritage Site. In 2015, it had a population of 218,523.

The Staatsexamen is a German government licensing examination that future physicians, teachers, pharmacists, food chemists, psychotherapists and jurists as well as surveyors have to pass to be allowed to work in their profession. The examination is generally organized by government examination agencies which are under the authority of the responsible ministry. These agencies create examination commissions which consist of members of the examination agency, university professors and/or representatives from the professions. The Staatsexamina are both legally equivalent to a master's degree in the respective operating ranges.

University of Königsberg former university of Königsberg in Eastern Prussia (1544-1945)

The University of Königsberg was the university of Königsberg in East Prussia. It was founded in 1544 as the world's second Protestant academy by Duke Albert of Prussia, and was commonly known as the Albertina.

Radbruch was a member of the Social Democratic Party of Germany (SPD), and held a seat in the Reichstag from 1920 to 1924. In 1921-22 and throughout 1923, he was minister of justice in the cabinets of Joseph Wirth and Gustav Stresemann. During his time in office, a number of important laws were implemented, such as those giving women access to the justice system, and, after the assassination of Walter Rathenau, the law for the protection of the republic.

Social Democratic Party of Germany political party in Germany

The Social Democratic Party of Germany is a social-democratic political party in Germany.

Reichstag (Weimar Republic) legislative body of Weimar Germany

The Reichstag was the Lower house of the Weimar Republic's Legislature. It originated in the creation of the Weimar Constitution in 1919. After the end of the Weimar Republic in 1933, the Reichtag continued to operate, albeit sporadically, as the nominal Legislature of Nazi Germany.

Joseph Wirth German chancellor

Karl Joseph Wirth, known as Joseph Wirth, was a German politician of the Catholic Centre Party who served for 585 days as Chancellor of Germany, from 1921 to 1922. During the postwar era, he participated in the neutralist Alliance of Germans party.

In 1926, Radbruch accepted a renewed call to lecture at Heidelberg. After the Nazi seizure of power in January 1933, Radbruch, as a former Social Democratic politician, was dismissed from his university post under the terms of the so-called "Law for the Restoration of the Professional Civil Service" ("Gesetz zur Wiederherstellung des Berufsbeamtentums"). (The universities, as public bodies, were subject to civil service laws and regulations.) Despite the employment ban in Nazi Germany, during 1935/36 he was able to spend a year in England, at University College, Oxford. An important practical outcome of this was his book, "Der Geist des englischen Rechts" ("The Spirit of English Law"), although this could be published only in 1945. [3] During the Nazi period, he devoted himself primarily to cultural-historical work.

History of the Social Democratic Party of Germany aspect of history

The foundation of the Social Democratic Party of Germany can be traced back to the 1860s, and for much of the 20th and 21st centuries it has represented the centre-left in German politics. The SPD has been the ruling party at several points, first under Friedrich Ebert in 1918. The party was outlawed in Nazi Germany but returned to government in 1969 with Willy Brandt. Meanwhile, the East German branch of the SPD was merged with the ruling KPD. In the modern Federal Republic of Germany, the SPD are the second largest party after the CDU and are currently in government as a junior coalition partner to Chancellor Angela Merkel's CDU. The SPD last held the chancellorship under Gerhard Schröder from 1998 to 2005.

Law for the Restoration of the Professional Civil Service

The Law for the Restoration of the Professional Civil Service, also known as Civil Service Law, Civil Service Restoration Act, and Law to Re-establish the Civil Service, was a law passed by the National Socialist regime of Germany on 7 April 1933, two months after Adolf Hitler had attained power.

Nazi Germany The German state from 1933 to 1945, under the dictatorship of Adolf Hitler

Nazi Germany is the common English name for Germany between 1933 and 1945, when Adolf Hitler and his Nazi Party (NSDAP) controlled the country through a dictatorship. Under Hitler's rule, Germany was transformed into a totalitarian state that controlled nearly all aspects of life via the Gleichschaltung legal process. The official name of the state was Deutsches Reich until 1943 and Großdeutsches Reich from 1943 to 1945. Nazi Germany is also known as the Third Reich, meaning "Third Realm" or "Third Empire", the first two being the Holy Roman Empire (800–1806) and the German Empire (1871–1918). The Nazi regime ended after the Allies defeated Germany in May 1945, ending World War II in Europe.

Immediately after the end of the Second World War in 1945, he resumed his teaching activities, but died at Heidelberg in 1949 without being able to complete his planned updated edition of his textbook on legal philosophy.

World War II 1939–1945 global war

World War II, also known as the Second World War, was a global war that lasted from 1939 to 1945. The vast majority of the world's countries—including all the great powers—eventually formed two opposing military alliances: the Allies and the Axis. A state of total war emerged, directly involving more than 100 million people from over 30 countries. The major participants threw their entire economic, industrial, and scientific capabilities behind the war effort, blurring the distinction between civilian and military resources. World War II was the deadliest conflict in human history, marked by 50 to 85 million fatalities, most of whom were civilians in the Soviet Union and China. It included massacres, the genocide of the Holocaust, strategic bombing, premeditated death from starvation and disease, and the only use of nuclear weapons in war.

In September 1945, Radbruch published a short paper Fünf Minuten Rechtsphilosophie (Five Minutes of Legal Philosophy), that was influential in shaping the jurisprudence of values (Wertungsjurisprudenz), prevalent in the aftermath of World War II as a reaction against legal positivism. [4] [5] [6]

Jurisprudence of values or jurisprudence of principles is a school of legal philosophy. This school represents, according to some authors, a step in overcoming the contradictions of legal positivism and, for this reason, it has been considered by some authors as a post-positivism school. Jurisprudence of values is referred to in various works all over the world.

Legal positivism is a school of thought of analytical jurisprudence largely developed by legal thinkers in the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism set the theoretical foundations for such developments to occur. The most prominent legal positivist writing in English has been H. L. A. Hart, who in 1958 found common usages of "positivism" as applied to law to include the contentions that:

  1. laws are commands of human beings
  2. there is no necessary connection between law and morality, that is, between law as it is and as it ought to be.
  3. analysis of legal concepts is worthwhile and is to be distinguished from history or sociology of law, as well as from criticism or appraisal of law, for example with regard to its moral value or to its social aims or functions
  4. a legal system is a closed, logical system in which correct decisions can be deduced from predetermined legal rules without reference to social considerations
  5. moral judgments, unlike statements of fact, cannot be established or defended by rational argument, evidence, or proof

Work

Title page "Rechtsphilosophie" (1932) Radbruch Rechtsphilosophie.png
Title page "Rechtsphilosophie" (1932)

Radbruch's legal philosophy derived from Neokantianism, which assumes that a categorical cleavage exists between "is" (sein) and "ought" (sollen). According to this view, "should" can never be derived from "Being." Indicative of the Heidelberg school of neokantianism to which Radbruch subscribed was that it interpolated the value-related cultural studies between the explanatory sciences (being) and philosophical teachings of values (should).

His grave in Heidelberg RadbruchGrab2.jpg
His grave in Heidelberg

In relation to the law, this triadism shows itself in the subfields of legal sociology, legal philosophy and legal dogma. Legal dogma assumes a place in between. It posits itself in opposition to positive law, as the latter depicts itself in social reality and methodologically in the objective "should-have" sense of law, which reveals itself through value-related interpretation.

The core of Radbruch's legal philosophy consists of his tenets the concept of law and the idea of law. The idea of law is defined through a triad of justice, utility and certainty. Radbruch thereby had the idea of utility or usefulness spring forth from an analysis of the idea of justice. Upon this notion was based the Radbruch formula, which is still vigorously debated today. The concept of law, for Radbruch, is "nothing other than the given fact, which has the sense to serve the idea of law."

Hotly disputed is the question whether Radbruch was a legal positivist before 1933 and executed an about-face in his thinking due to the advent of Nazism, or whether he continued to develop, under the impression of Nazi crimes, the relativistic values-teaching he had already been advocating before 1933.

The problem of the controversy between the spirit and the letter of the law, in Germany, has been brought back to public attention due to the trials of former East German soldiers who guarded the Berlin Wall—the so-called necessity of following orders. Radbruch's theories are posited against the positivist "pure legal tenets" represented by Hans Kelsen and, to some extent, also from Georg Jellinek.

In sum, Radbruch's formula argues that where statutory law is incompatible with the requirements of justice "to an intolerable degree", or where statutory law was obviously designed in a way that deliberately negates "the equality that is the core of all justice", statutory law must be disregarded by a judge in favour of the justice principle. Since its first publication in 1946 the principle has been accepted by Germany's Federal Constitutional Court in a variety of cases. Many people partially blame the older German legal tradition of legal positivism for the ease with which Hitler obtained power in an outwardly "legal" manner, rather than by means of a coup. Arguably, the shift to a concept of natural law ought to act as a safeguard against dictatorship, an untrammeled State power and the abrogation of civil rights.

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Logical positivism and logical empiricism, which together formed neopositivism, was a movement in Western philosophy whose central thesis was verificationism, a theory of knowledge which asserted that only statements verifiable through empirical observation are meaningful. The movement flourished in the 1920s and 1930s in several European centers.

Philosophy of law branch of philosophy and fundamental discipline of law

Philosophy of law is a branch of philosophy and jurisprudence that seeks to answer basic questions about law and legal systems, such as "What is law?", "What are the criteria for legal validity?", "What is the relationship between law and morality?", and many other similar questions.

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Lon Luvois Fuller was a noted legal philosopher, who criticized legal positivism and defended a secular and procedural form of natural law theory. Fuller was a professor of Law at Harvard University for many years, and is noted in American law for his contributions to both jurisprudence and the law of contracts. His debate in 1958 with the prominent British legal philosopher H. L. A. Hart in the Harvard Law Review was important in framing the modern conflict between legal positivism and natural law theory. In his widely discussed 1964 book, The Morality of Law, Fuller argues that all systems of law contain an "internal morality" that imposes on individuals a presumptive obligation of obedience. Robert S. Summers said in 1984: "Fuller was one of the four most important American legal theorists of the last hundred years".

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The Radbruch Formula is a theory of law which was first formulated in a 1946 essay by the German law professor and politician Gustav Radbruch. According to the theory, a judge who encounters a conflict between a statute and what he perceives as just, has to decide against applying the statute if - and only if - the legal concept behind the statute in question seems either "unbearably injust" or in "deliberate disregard" of human equality before the law.

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References

  1. "Biografie Gustav Radbruch (German)". Deutsches Historisches Museum. Retrieved 24 October 2014.
  2. "Biografie Gustav Radbruch(German)". Bayerische Staatsbibliothek. Retrieved 24 October 2014.
  3. Robert Alexy. "Famous scholars from Kiel: Gustav Radbruch". The lawyer and SPD politician was Minister for Justice in the Weimar Republic. He taught at Kiel University from 1919 to 1926. Professor Robert Alexy introduces the eminent legal philosopher. Christian-Albrechts-Universität zu Kiel. Retrieved 19 June 2018.
  4. Radbruch, Gustav (2006). Translated by Litschewski Paulson, Bonnie; Paulson, Stanley. "Five Minutes of Legal Philosophy (1945)". Oxford Journal of Legal Studies. 26: 13–15.
  5. See also Radbruch, Gustav (2006). Translated by Litschewski Paulson, Bonnie; Paulson, Stanley. "Statutory Lawlessness and Supra-Statutory Law (1946)". Oxford Journal of Legal Studies. 26: 1–11.
  6. Paulson, Stanley L. (2006). "On the Background and Significance of Gustav Radbruch's Post-War Papers". Oxford Journal of Legal Studies. 26: 17–40.

Further reading