Gustav Radbruch's Legal Philosophy: From the Cultural Concept of Law to the Radbruch-Formula

Abstract

Gustav Radbruch’s claim that extremely unjust directives issued by political authorities must fail to qualify as laws has figured prominently in jurisprudential debate ever since HLA Hart highlighted it in his classic article Positivism and the Separation of Law and Morals. Hart’s treatment of the claim, however, was unsympathetic and uncharitable. Hart claimed that Radbruch had converted from legal positivism to natural law in response to the personal experience of living under Nazi dictatorship and went on to dismiss the Radbruch-formula as ‘a passionate appeal supported not by detailed reasoning but by reminders of a terrible experience.’ At least in Anglo-American debate, Hart’s assessment of the Radbruch-formula as an ad hoc response to Nazism undefended by genuine jurisprudential argument has never been fully dislodged.