Radbruch formula and its application in German judicial practice

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Yaroslav Mudryi National Law University

Radbruch formula and its application in German judicial practice

Dotsenko R.A., 1st year Student of the International Law Faculty

Trykhlib K.O., PhD in Law, Assistant Professor

of the Department of Theory and Philosophy of Law

Abstract

The article is devoted to the analysis of the core points of Gustav Radbruch's legal philosophy and “Radbruch formula” in particular.

The article reveals the content of his axiological theory that includes three main types of values: individualistic (related to a person), supra-individualistic (related to a nation) and transpersonal (related to a culture).

Moreover, the Radbruch's understanding of the notion of “law” has been researched. In addition, the analysis of the concept of the "idea of law“, developed by Radbruch, which consists of three elements, - justice, certainty and purposiveness (expediency), - has been conducted.

The paper reveals the politically determined sense of the legal expediency and its relation to the specific political ideologies: Liberalism, Conservatism, Socialism and Nationalism.

The article also researches the issue of the hierarchy of the elements of the idea of law, which seems to be very entangled and inconsistent - at least in the work named «Legal Philosophy» (1932).

Furthermore, it has been defined and analyzed the hierarchy in Radbruch's postwar articles “Five Minutes of Legal Philosophy" (1945) and “Statutory Lawlessness and Supra-Statutory Law" (1946), in which it looks more clear - justice is on the top, certainty has the second place, and the purposiveness is of the least importance.

The concept of the so- called “Radbruch formula", which means the non-recognition of lawfulness of statutes, which have nothing in common with the principles of justice and equality, has been studied.

The article investigates some specific cases from German judicial practice of different years, which clearly demonstrate the application of Radbruch formula as lawful and effective example of contra legem adjudications:

1) Goettig-Purrfarken case;

2) GDR frontier guards case;

3) citizenship of German advocate Jew case.

Herewith, the analysis of Robert Alexy's views on this question has been conducted.

Key words: Radbruch formula, legal philosophy, anti-positivism, contra legem adjudication, principles of law.

Анотація

Стаття присвячена аналізу ключових положень філософії права Густава Радбруха, зокрема, «формули Радбруха».

У роботі розкрито зміст його аксіологічного вчення, що включає три головні види цінностей: індивідуальні (стосуються особи), надіндивідуальні (стосуються нації) та трансперсональні (стосуються культури).

Крім того, у статті досліджено розуміння Радбрухом поняття «право». Також проведено аналіз концепції «ідея права», розробленої Радбрухом, яка складається із трьох елементів - справедливості, стабільності (безпеки) і доцільності.

У статті розкрито політично детерміновану сутність правової доцільності та її зв'язок із конкретними політичними ідеологіями: лібералізмом, консерватизмом, соціалізмом та націоналізмом.

У статті також досліджено питання ієрархії складників ідеї права, яка постає дуже заплутаною та непослідовною - принаймні, у праці під назвою «Філософія права» (1932).

Крім того, визначено і проаналізовано відповідну ієрархію у післявоєнних роботах Радбруха «П'ять хвилин філософії права» (1945) та «Законне неправо (безправ'я) і надзаконне право» (1946), в яких вона виглядає більш ясною - справедливість ставиться на перше місце, після неї йде стабільність, натомість найменшу важливість має доцільність.

Вивчено концепцію так званої «формули Радбруха», яка полягає в невизнанні законів, далеких від принципів справедливості і рівності, в якості права.

У статті досліджуються конкретні справи із німецької судової практики різних часів, де чітко продемонстровано застосування «формули Радбруха» як правомірного та ефективного прикладу винесення рішень contra legem:

1) справа Ґеттіга-Путфаркена;

2) справа східнонімецьких прикордонників;

3) справа про німецьке громадянство єврейського адвоката-емігранта.

При цьому проведено аналіз позиції Роберта Алексі із цієї проблематики.

Ключові слова: формула Радбруха, філософія права, антипозитивізм, прийняття рішень contra legem, принципи права.

The main reason, why this research is currently very relevant, is the fact that in the modern legal world the positivist and normativist approaches still remain dominant. Although they provide a legal system with stability and certainty, their inflexibility can also create many problems when considering cases of flagrant injustice. The key problem of positivism lies in the fact that it considers law only a system of mandatory norms that regulate social relations without any certain understanding how to explain the difference between law and lawlessness. It means that the concept of law is identified with the totality of legal norms, and this position absolutely deprives positivism the ability to estimate whether the statute is even humane or not and opens the way to acknowledge racist, sexist, totalitarian and other discriminative statutes as lawful. Unfortunately, Ukrainian judges actively use the positivist and normativist approaches in their practice, mechanistically applying statutes or even adapting them to the existing situation, if they don't quite match it. Our country inherited this method from the Soviet Union, and nowadays it proves inefficient and totally inflexible because it absolutely ignores the general principles of law, which may be considered the very basis of law indeed. Although the principles of law are primary and mandatory source of law in Ukraine, actually, they are almost always disregarded in our judicial practice. Thus, Radbruch's theory and especially his formula could be effective instruments of overcoming positivism and adjusting the Ukrainian legal system to the European standards.

Radbruch's legal philosophy and formula were considered in the researches of following scientists: R. Alexy, F. Saliger, N. Shaveko, A. Serebrennikova, M. Bratasyuk, V. Bihun and others. We also have studied the original sources, works of Radbruch himself.

Purpose of scientific research is an attempt to actualize Radbruch's concept of law and to demonstrate the potential effectiveness of using the Radbruch formula not merely in German judicial practice, but in the legal systems of other countries as well, including Ukraine.

Gustav Lambert Radbruch was a prominent German lawyer, legal philosopher and politician. He has worked as a professor in Heidelberg, Koenigsberg and Kiel Universities; held a seat in Reichstag since 1920 till 1924 as the member of Social Democratic Party of Germany; executed the duties of the Minister of Justice in the cabinets of Joseph Wirth and Gustav Stresemann. In 1932

he published his fundamental work named «Legal Philosophy», in which he described his views on this subject. After the Nazi seizure of power in Germany in 1933 Radbruch was dismissed from his academic post in Heidelberg University because of his relations with Social Democrats. He had managed to continue his scientific and academic work only after the end of the Second World War, and in 1945-1946 he published his two most significant articles on legal philosophy: “Five Minutes of Legal Philosophy” and “Statutory Lawlessness and Supra-Statutory Law”, which might be considered as the quintessence of Radbruch's views. After that Gustav Radbruch was preparing a new edition of “Legal Philosophy”, but his sudden death from heart attack prevented him from doing this [8, p. 33-37].

Radbruch's scientific contribution to legal theory and philosophy is huge. Actually, he created his own concept of law, which can be nowadays considered as a mixture of positivist and naturalist views [8, p. 39].

He wrote that there were three kinds of things in the empirical sphere of cognition, which could be considered as an object of axiology: a person, a nation and a culture. Each of these kinds is associated with an appropriate type of values: a person is related to individual (or individualistic) values, a nation - to collective (or supra-individualistic) values and a culture - to creative (or transpersonal) values. These values are always being kept in dialectical relation of unity and confrontation at the same time. Radbruch thought that there was no way of satisfying the needs for all three values, so everyone must choose between one of them and form his own life position [7, p. 159].

The role and the functions of state and law depend on values that subject considers to be the most important. From the individualistic point of view, state and law are connecting links between individuals and, consequently, exist for the good of every separate one. The content of supra-individualistic position lies in recognition of state and law as an institution, which stands above the individuals and, therefore, subordinates them to its own good. The transpersonal idea means that state and law connect people with something, which lies beyond them: for instance, common work or purpose, - hence, subordinating people to serve some idea. The author stated that individual values might be represented by the notion of contract. The most vivid example of contract in legal sphere is social contract. Radbruch wrote on this issue in such way: “According to the idea of social contract, a state exists not due to its emergence because of contract, but only due to the fact it can be considered as created to serve the interests of every participant of this contract” [1, p. 70]. Supra-individualistic point of view may be incarnated in the notion of organism: “[...] in a good state, like in a man's body, organs exist for the good of the whole organism, but not conversely [...]” [1, p. 69]. Transpersonal idea, according to Radbruch, may well be associated with a building: “[...] builders are united neither by the whole they are part of, nor by the direct social bonds between them, but by their common work [...]” [1, p. 70]. Big and stable group of people, connected mostly by individualistic values, ought to be called as “society”; connected by supra-indi- vidualistic - “commonality”; by transpersonal - “community” [1, p. 69-70].

Radbruch defined law as an actuality, which found its value in serving the justice [1, p. 41]. Therefore, he created a concept of the idea of law, which means the totality of main values of law: justice, certainty and purposiveness. They should not be confused with aforementioned general values, although it is appropriate to say that these two kinds of values are connected to a certain extent.

By the word “justice” Radbruch means the measure of law's compliance with the “ideals of Good and Truth” and, de facto, equality. The content of certainty lies in law's validity, permanence and in the efficiency of its practical realization. In turn, the sense of “purposiveness” should be interpreted as law's ability to satisfy the society's needs for general values (individualistic, supra-indi- vidualistic and transpersonal) [1, p. 43, 87-88].

The purposiveness is connected mainly with the politics. It defines the teleology of justice and stability. For individualistically determined purposiveness it is maximum liberty; for supra-individualistically determined - the maximum power of the nation; for transpersonally determined - the maximum development of culture. Radbruch wrote that to the first category may be attributed such ideologies as Liberalism and Socialism (in its theoretical form), because they consider the good of every member of the society as their main purpose. The second category consists of Conservatism and Nationalism, because they put the good of the whole society (nation) above the individual good. The third category possesses no ideologies, because, according to Radbruch, “transpersonalism [...] may be the background of some outlook, which determines the ideology of a party. However, there is no state built on the transpersonal principle. [.] this principle may be used as the criterion, perhaps, only related to the partially legal communities, such as universities, religious orders or Catholic church, but not to the state. [...] Even where the idea of the transpersonal state of laborers or the corporative state is being realized practically it is indeed the basis of the supra-in- dividualistic state of violence” [1, p. 72-73].

The interesting question is how Radbruch built the hierarchy of the three elements of the idea of law. Actually, it is hard to understand this from Radbruch's works, if even possible. It would be rational to underline that at least his position was changing during his life. The only obvious thing is the fact that purposiveness has always been at the bottom of this hierarchy, so the main conflict has emerged namely between the justice and certainty. Herewith, in the first edition of his “Legal Philosophy”, published in 1932, Radbruch tended to state controversial and even contrary positions. For example, at the beginning of the book he wrote: “Law may be unjust, but it is a law only due to its justness” [1, p. 16]. Even the content of this fragment seems to be quite ambiguous, but still according to it we can make a conclusion, that justice is perhaps at the top of the hierarchy. However, further down the text he wrote such a phrase: “Justice is the second most important purpose of the law. The first is certainty, peace and order” [7, p. 160]. It is much less ambiguous and directly states that certainty is at the top of the hierarchy, not justice. But even this hasn't become the last Radbruch's position. After these two statements he claimed a new one: “Three elements of the idea of law are equal, and if a conflict between them occurs, there is no obvious solution of this conflict” [7, p. 160]. radbruch axiological philosophy law

Nevertheless, much more certain clarification in this question is observed in Radbruch's postwar works. In his article “Five Minutes of Legal Philosophy” (1945) he in bare outlines had presented the way of solving the conflict between the certainty and justice, which later received the name “Radbruch formula”. Radbruch formula is expected to be applied, when two conditions take place: “intolerability thesis” and “disavowal thesis”. “Intolerability thesis” measures the intolerability of some statute to the idea of justice, and the “disavowal thesis” determines whether the statute is violating the principle of equality. So, in “Five Minutes of Legal Philosophy” we can find a description of “intolerability thesis” in these lines: “[...] people and especially lawyers must realize the fact that although unjust and socially harmful laws can exist, their lawfulness ought to be denied” [5, p. 96]. Here we observe the description of the “disavowal thesis”: “If laws are consciously trampling the will of justice, for example, giving human rights to someone or refusing to give them due to outrage only, then [...] these laws are invalid, people shouldn't obey them and lawyers must find the courage not to recognize their lawfulness” [5, p. 96]. In his latter article “Statutory Lawlessness and Supra-Statutory Law” (1946) Radbruch defined his formula more precisely: “The conflict between justice and legal certainty may well be resolved in this way: the 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 such an intolerable degree that the statute, as `flawed law', must yield to justice. It is impossible to draw a sharper line between cases of statutory lawlessness and statutes that are valid despite their flaws. One line of distinction, however, can be drawn 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” [2, p. 7].

In fact, Radbruch formula was a good instrument to circumvent the positivism with its retroactivity ban. It helped German lawyers deal with many hard cases (like Nuremberg trials) efficiently. Let's analyze some of these cases to understand more deeply how Radbruch formula works in practice [6, p. 113; 3, p. 70].

The first example was stated by Radbruch himself in “Statutory Lawlessness and Supra-Statutory Law”; let's name it “Goettig-Puttfarken case”. This case was being conducted by the Thuringian Criminal Court in Nordhausen at the Soviet occupation zone during the year 1946. Its content was justice department clerk Puttfarken's denunciation on merchant Goettig for listening to the foreign radio and for writing on the WC wall such a phrase: “Hitler is a mass murderer and to blame for the war”. Goettig had been sentenced to capital punishment in 1941, and this fact later allowed charging Puttfarken with murder. As Puttfarken testified during the trial in 1946, he had made the denunciation because of his National Socialist political views and completely realizing the fact that Goettig would be sent to gallows. Although he had acted according to the paragraph 139 of German Criminal Code, which had stated that everyone who had had credible knowledge about someone's intention of high treason, coinage, murder, robbery or another dangerous crime had been obliged to inform the police about that, Puttfarken was charged with premeditated murder and thus sentenced to life imprisonment. However, he was condemned by the Thuringian Criminal Court as an accomplice to murder: the main blame was laid on judges, who had sentenced Goettig for death, executing the statutes, which had been absolutely incompatible with the basic justice and humanity. Radbruch himself justified this position with such words: “The legislation of the National Socialist state, on the basis of which death sentences like those cited here were pronounced, has no legal validity whatsoever [...] A judge can never administer justice by appealing to a statute that is not merely unjust but criminal. We appeal to human rights that surpass all written laws, and we appeal to the inalienable, immemorial law that denies validity to the criminal dictates of inhuman tyrants. In light of these considerations, I believe that judges must be prosecuted who have handed down decisions incompatible with the precepts of humanity and have pronounced the death sentence for trifles” [2, p. 5]. The two Goettig's executors were also condemned to capital punishment, since the investigation had found out that they had been doing their work voluntarily, although they had had an opportunity not to participate in crimes, thus they were murderers as well [2, p. 5].

Another instance was the case of GDR frontier guards that was investigated in early 1990s. Its content was the killing of a man who had tried to climb over the Berlin Wall from GDR side by two GDR frontier guards. In fact, paragraph 27 of GDR Border Law stated that frontier guards had the right of using their guns in extreme cases and East German judicial system considered their actions lawful. However, interpretation of this law caused controversies between federal lawyers after the enactment of the German Reunification Treaty. At the beginning of the investigation the first instance court of Berlin concluded that two defendants had acted unlawfully, because they had started shooting to kill, not even trying to damage only victim's legs that would have helped to prevent his crossing of the border. As German Reunification Treaty had stated that in cases, in which the deed could be considered as unlawful according to the both GDR and FRG legal systems, the softest law should be applied, the first instance court concluded that the deed of two frontier guards is a murder and they would be condemned to imprisonment for 5-15 years, as FRG Criminal Code stated, since GDR law was stricter and meant at least 10 years of imprisonment for such a murder [6, p. 116].

However, the defendants appealed to the Federal Court. The Federal Court had carried out a new investigation and came to the same conclusion, but in the different way. It stated that frontier guards had been acting lawfully as, according to the paragraph 27 of GDR Border Law, there had been an extreme case, because if they wouldn't have opened an intense fire, they wouldn't have prevented the victim's reaching the top of the Wall. Federal Court judges also added that there had been no opportunity to try to stop the victim with precise shots at his legs, since only one bullet among 52 that had been shot had reached the target, so if defendants would have acted even more slowly, they wouldn't have prevented the victim's reaching the top of the Wall on time [6, p. 115].

Nevertheless, as we said, frontier guards had been convicted of murder. Although Federal Court acknowledged their actions as lawful according to the paragraph 27 of GDR Border Law, it didn't acknowledge this law itself. Federal Court concluded that this law had been lawless by its very nature and frontier guards must have refused to obey it. Thereby, they were guilty of a standard murder according to the GDR law and were punished according to the FRG law, as stated in German Reunification Treaty [6, p. 115].

The similar situation we can see in Robert Alexy's work “The Argument from Injustice: A Reply to Legal Positivism”. He described a case, in which some Jewish advocate had emigrated from Germany to Netherlands shortly before the beginning of the Second World War and due to the racial reasons had been deprived German citizenship according to Paragraph 2 of the Ordinance №11 from November 25, 1941. Although this advocate had been deported from Netherlands in 1942 and most likely had died in a death camp, Federal Constitutional Court (FCC) decided to investigate this case. All in all, Court concluded that the advocate hadn't been deprived citizenship and should have been considered a citizen of Germany until his very death, so the Court acknowledged the Ordinance №11 legally invalid by its nature.

The German Federal Constitutional Court also made a remark that “once established injustice, which obviously violates the basic principles of law, doesn't become a law only due to the fact that it is used in practice” [10, p. 8]. Alexy from his side claimed that there had been no need for appealing to the principles of law, since judges could have referred to the Article 3, Paragraphs 1and 3 of the Constitution of Germany, which had stated that “all persons are equal before the law” and «no one may be prejudiced or favored because of his sex, his parentage, his race, his language, his homeland and origin, his faith or his religious or political opinions» respectively [10, p. 8-9]. However, this claim seems to be very doubtful, because referring to the existing statute means direct violation of the retroactivity ban, so it can't be used in practice until the retroactivity ban is cancelled. Nevertheless, appealing to the principles of law can be successfully applied to solve this problem due to the fact that principles of law function on the supra-statutory level and cannot be compared to “standard law”.

In view of the foregoing, we may state that although Radbruch's legal philosophy doesn't have a consistent system, it still contains many interesting ideas. The main of them is so-called “Radbruch formula”, which seems to be the qualitative way of solving the conflict between the legal certainty and legal justice. The jurisprudence of courts helps us understand the importance and even necessity of using the retroactivity as the effective method of solving such hard legal problems. Certainly, it doesn't mean that due to the aforementioned cases the positivist way of thinking is wrong, but it ought to be corrected and made more flexible in some exceptional cases as those we described above. Therefore, we can make a conclusion that Radbruch formula can be considered as a powerful instrument, which proved its effectiveness in Germany and may have a chance of applying in many countries around the world and, prima facie, in Ukraine.

References

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2. Radbruch G. Statutory Lawlessness and Supra-Statutory Law. Oxford Journal of Legal Studies. 2006. Vol. 26. No. 1. P. 1-11.

3. Saliger F. Content and Practical Significance of Radbruch's Formula. Проблеми філософії права. 2004. Т ІІ. С. 68-70.

4. Радбрух Г. Законне неправо та надзаконне право. Проблеми філософії права. 2004. Т ІІ. С. 83-94.

5. Радбрух Г П'ять хвилин філософії права. Проблеми філософії права. 2004. Т ІІ. С. 95-97.

6. Серебренникова А.В. К 70-летию Нюрнбергского процесса: «Формула Радбруха» и опыт её применения на практике после объединения Германии. Пробелы в российском законодательстве. 2016. Выпуск 7. С. 112-117

7. Шавеко Н.А. Идея права по Густаву Радбруху. Вестник Удмуртского университета. Серия «Экономика и право». 2017. Т 27. Выпуск 5. С. 159-164.

8. Бігун В.С. Класики філософії права: Густав Радбрух. Проблеми філософії права. 2004. Т 2. С. 33-48.

9. Братасюк М.Г. Формула Радбруха в контексті сучасного українського правового розвитку. Публічне право. 2014. № 2 (14). С. 204-211.

10. Алекси Р Понятие и действительность права: монография / ред. Т.Ф. Яковлева; пер.: А.Н. Лаптев, Ф. Кальшойер. Москва : Инфотропик Медиа, 2011. 192 с.

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