The Radbruch formula in a bipolar world

Is Justice the patrimony of a specific ideological group or is it rather a value that all human beings and all political institutions and communication groups should aspire to discover and practice?

July 21, 2022-Reading time: 5 minutes
human rights

"The formula, which takes its name from the German jurist Gustav Radbruch, states that the validity of extremely unjust laws can be denied, since extreme injustice is not and cannot be law. Years later, Robert Alexy studied the aforementioned formula in depth, demonstrating its usefulness in legal processes. We note the timeliness of this great contribution to legal thought, paying special attention to its usefulness in a world in which the media and public opinion in general conceive some of today's controversial social issues in a bipolar manner and according to their respective ideologies".

More than thirty years after the fall of the Berlin Wall and while we are witnessing the war of invasion of Ukraine by Russia, it seems appropriate to recall the theory of the denial of the extremely unjust right elaborated by the German jurist Gustav Radbruch after his unfortunate experience with the years of National Socialism, the Second World War and the subsequent division of Europe into two blocs with the beginning of the Cold War.

Radbruch was Professor of Philosophy of Law and Criminal Law at the Universities of Kiel and Heidelberg, Minister of Justice in the ill-fated Weimar Republic (1921-1923) and one of the main authors of its constitutional charter. Initially, like so many others, he belonged to the Nazi party, but during the Nazi regime he was purged and stripped of his chair of Philosophy of Law in 1933 - the year in which Hitler was appointed Chancellor of Germany - and was forbidden to exercise any public, political or teaching function. With the collapse of that regime, he regained his chair in 1945 and was dean in Heidelberg until his death.

The suffering of the horrors of World War II and the helplessness caused by the legal relativism of the previous decades changed his way of thinking and, as opposed to the positivist vision of the Law of his compatriot Hans Kelsen, he came to conceive the world in two spheres, the natural and the cultural. The juridical phenomenon would be within the second, marked by the search for Justice, a value inherent to it. From this construction he would elaborate his concept of Law as a cultural reality referring to values.

Already as a moderate iusnaturalist, in his famous work "Arbitrariedad Legal y Derecho Supralegal", he introduced his great contribution to legal thought, the formula that bears his name, according to which the validity of extremely unjust laws can be denied, because extreme injustice is not law. It is significant that the year of his return to Germany from exile also saw the famous Nuremberg trials, in which Nazi leaders were tried and convicted for their genocidal crimes committed in Germany and occupied countries during the war, and in which true atrocities were revealed. These trials would undoubtedly influence his reasoning.

In Arbitrariedad Legal y Derecho Supralegal, the general obligation to always apply positive law is established, unless it is extremely unjust to the point of denaturalizing the law itself. It is understood that this is not a formula applicable to any type of injustice in the law, since its generalization could lead to legal chaos.

We wonder if these ideas from the legal field will not be of interest nowadays, at a time when the media and public opinion in general tend to approach major ethical debates in a bipolar way, establishing a framework of "good guys and bad guys" that does not always respect the elementary principles of Justice when the truth endangers the status quo and the solidity of one's own convictions.

According to the Democracy Index 2021, only Canada, Costa Rica, Uruguay, Uruguay, Iceland, Sweden, Norway, Denmark, Finland, the Netherlands, the United Kingdom, Ireland, the Netherlands, Germany, Austria, Switzerland, Australia, New Zealand, Japan, South Korea and Taiwan are full democracies. In these countries there are laws in force that allow to kill the unborn at an advanced stage of gestation, to execute people condemned to death, to eliminate terminally or mentally ill people thanks to euthanasia laws, to impose through educational laws some ideologically controversial approaches such as the postulates of gender ideology, seriously violating the freedom of teaching and thought, to take away the right of some people to be adopted by a father and a mother through adoption laws, to prohibit religious symbols to public officials in violation of religious freedom, not to give asylum to people fleeing authoritarian and extremely unjust regimes leaving them defenseless and at the mercy of satraps thanks to certain laws on foreigners, etc.

Can the aforementioned laws be considered seriously unjust, so much so that the application of the Radbruch formula that could declare them unlawful could be considered at some point? This is the opinion of many citizens, governments and communicators in various countries.

It will be said that these are very complex issues in which the different moral conceptions of citizens clash, and that is undoubtedly true. But it is also true that the fact that these legislations have prospered in recent decades in various nations that enjoy prestige as full democracies - supported by a social or at least legislative majority - does not automatically confer on them the status of just.

The claim of correctness of the law that Alexy speaks of is none other than the claim of Justice. A legal system that aspires to be correct, that is to say, to fulfill its function well, must aspire to be just or at least -if we follow Radbruch's doctrine- not to be extremely unjust. And the principles of Law that guarantee Justice are, as the Roman jurist Ulpian taught us many centuries ago: honeste vivere, alterum non laedere, suum cuique tribuere (to live honestly, to give to each his own and not to harm others).    

To give two topical examples, a national poll conducted by Harvard University and the Harris polling firm confirms that 75% of Americans support the Supreme Court overturning the June 24, 2022 Roe v. Wade ruling affirming that there is no constitutional right to abortion. We could also talk, on the other ideological spectrum, about the injustice of the immigration veto imposed by President Donald Trump on citizens of 5 Muslim countries who were banned from entering the United States and subsequently endorsed by the Supreme Court of that nation. Or the death penalty in force in that same country.

Could an American citizen who survived an attempted abortion claim in court under the Radbruch clause for compensation for the after-effects of an attempted murder, or a citizen of Iraq or Somalia who was banned from entering the United States, thereby causing serious personal injury? Or the family of a person sentenced to death for the irreparable harm caused by that person's execution?

Is Justice the patrimony of a specific ideological group or is it rather a value that all human beings and all political institutions and communication groups should aspire to discover and practice? Are human rights like "witches and unicorns", as the Scottish philosopher Alasdair MacIntyre maintains, or something invented by political parties according to the social aspirations of each moment in history, or rather something objective that can be discovered if specific cases are studied honestly and objectively?

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