The Radbruch formula (German: ''Radbruchsche Formel'') is a theory of law which was first formulated in a 1946 essay by the German law professor and politician

Gustav Radbruch 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 philoso ...

. 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 unjust" or in "deliberate disregard" of human equality before the law. Radbruch's formula is rooted in the situation of a

civil law system Civil law is a legal system originating in mainland Europe and adopted in much of the world. The civil law system is intellectualized within the framework of Roman law, and with core principles codified into a referable system, which serves as t ...

. It is believed to be a reaction to Radbruch's experience of the judiciary in

Nazi Germany Nazi Germany (lit. "National Socialist State"), ' (lit. "Nazi State") for short; also ' (lit. "National Socialist Germany") (officially known as the German Reich from 1933 until 1943, and the Greater German Reich from 1943 to 1945) was ...

and has been applied in the decision of courts in the Federal Republic of Germany numerous times. Some authors regard his essay ''Gesetzliches Unrecht und übergesetzliches Recht'', which first included his theory, as one of the most influential German legal-philosophical writings of the 20th century.For example S. Paulson and R. Dreier, 'Einführung in die Rechtsphilosophie Radbruchs', in: Gustav Radbruch: Rechtsphilosophie, Studienausgabe (Heidelberg, 1999), pp. 235–250

Formation and content

Before the

Second World War World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...

, Radbruch seems to have been a supporter of unconditional

legal positivism Legal positivism (as understood in the Anglosphere) is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin de ...

, which demands a strict separation between law and morality. In consequence, judges would have to apply positive law (i.e. statutes) without exception. The experience of the Third Reich (where Radbruch, then a professor, was banned from teaching) seems to have modified his view. Shortly after the end of the war, Radbruch first stated his formula in a 1946 essay: Excerpt: Excerpt (translation): Radbruch restated his concept in the book ''Vorschule der Rechtsphilosophie'' (published posthumously).

Reception in court

Both the German

Federal Constitutional Court The Federal Constitutional Court (german: link=no, Bundesverfassungsgericht ; abbreviated: ) is the supreme constitutional court for the Federal Republic of Germany, established by the constitution or Basic Law () of Germany. Since its inc ...

and the

Federal Court of Justice The Federal Court of Justice (german: Bundesgerichtshof, BGH) is the highest court in the system of ordinary jurisdiction (''ordentliche Gerichtsbarkeit'') in Germany, founded in 1950. It has its seat in Karlsruhe with two panels being situat ...

have applied Radbruch's formula numerous times. Its first court appearances were in cases concerned with National Socialist crimes. The defendants in those cases argued that, according to Nazi statutes valid at the time of their actions, their deeds were legal. The courts used Radbruch's formula to argue that some statutes were so intolerable that they had not been law in the first place and consequently could not be used to justify the deeds in question. More recently, the Radbruch formula reappeared in trials against

East German East Germany, officially the German Democratic Republic (GDR; german: Deutsche Demokratische Republik, , DDR, ), was a country that existed from its creation on 7 October 1949 until its dissolution on 3 October 1990. In these years the state ...

soldiers, ordered to protect the inner-German border.

References

{{Authority control Philosophy of law