Saturday, July 08, 2006

Radbruch Formula

According to Radbruch:

“The conflict between justice and legal certainty should be resolved in that the positive law, established by enactment, and by power, has primacy even when its content justice reaches an intolerable level that the law is supposed to give way as a ‘false law’ to justice. It is impossible to draw a sharper line between the cases of legalized injustice and laws which remain valid despite their false content. But another boundary can be drawn with the utmost precision. Where justice is not even aimed at, where equality is deliberately disavowed in the enactment of a positive law, then the law is not simple ‘false law’, it has no claim at all to legal status.”

In short, Radbruch’s formula can be express concisely as:

“Appropriately enacted and socially effective, norms lose their legal character or their legal validity when they are extremely unjust.” (That is: extreme injustice is no law).

Whoever supports this thesis has ceased to be a legal positivist. The great legal positivist Hans Kelsen expressed that: “any content whatsoever can be legal”. This is the positivist thesis of the separation of law and morality. But for the anti-positivist who adopts Radbruch’s Formula, there is nevertheless a limit, that of extreme injustice.

The conflict about Radbruch’s Formula is a philosophical conflict because it is a conflict about the concept of law. The question left to be answered are: ‘should one regard as continuing to be legally valid something which offended against fundamental principles of justice and the rule of law when it was legally valid in terms of positive law of the legal system which had perished? Can something be illegal today which in the past was legal? After 1945 German courts answered “yes” to this question.

Case 1: Practical Significance

The 1st example is a 1968 decision of the Federal Constitutional Court concerning Decree 11, Reich Citizenship Law, 1941. S.2 of Decree 11 reads:

“A Jew loses German nationality when he has his usual residence abroad at the time of coming into force of this decree or when he at a later date takes up his usual residence abroad at the time when he changes his usual residence to abroad.”

This case raised the question whether a Jewish lawyer, who had emigrated to Amsterdam shortly before the WW2 had lost his German nationality. The lawyer was deported from Amsterdam in 1942 and there was no news about his fate beyond that, so it had to be accepted that he had lost his life in a concentration camp.

The Federal Constitutional Court decided that the lawyer had not lost his German nationality because Decree 11 was from the outset void, the core reasoning given is that:

“…the decree are so evidently contradict fundamental principles of justice that the judge who applied them or recognized their legal consequences would pronounce injustice instead of law.”

Decree 11 offends these fundamental principles and the contradiction with justice has reached so intolerable a level that it must be regarded as void from the outset.

Radbruch’s formulation of the “intolerable level” of the “contradiction” with “injustice” was applied.

Case 2: Practical Significance

A Jewish woman who emigrated to Switzerland in 1939 had left securities in a deposit in a German bank. After the war, she took up domicile in the Federal Republic of Germany (FRG) and demanded that the securities be restored to her. The question was whether she had lost her property under s.3, Para 1, Provision 1 of Decree 11, Reich Citizenship Law, 1941. S.3 of Decree 11 reads:

“The property of Jews who have lost their German nationality on the basis of this Decree becomes the property of the Reich with the loss of nationality.”

The Federal Court of Justice answered “no” to this question and confirmed her demand for restitution, the reason being that:

“S.3 of Decree 11 under the Reich’s Citizenship Law 1941 is to be regarded as from the outset void because of its iniquitous content which contradicts the foundational requirements of every order based on the rule of law.”

Following this anti-positivist solution the emigrant could demand her property back simply because she had never lost it. From the standpoint of legal positivism some correcting regulation was required if she were to have any title to her claim and this would hinge on the discretion of the legislature.

Case 3: Practical Significance

This case concerns a 20-year-old fugitive who on December 1984 attempted to get over the border structure with a ladder. 2 soldiers of the border patrol of the German Democratic Republic (GDR) caught sight of him. As he ascended the ladder it became clear to the soldiers that only directed fire stood a chance of preventing his flight. They shot at the fugitive. Though they aimed at his leg, there was a possibility that he would be killed by the sustained fire. The fugitive died as a result.

In 1992, the Berlin Provincial Court found the soldiers jointly guilty of manslaughter. The Federal Court of Justice rejected the appeals against the judgment and confirmed the convictions.

In accordance with the rules of the treaty on the restoration of German Unity, the general principle was valid for both soldiers that their deed was punishable only if it was punishable in terms of the valid law governing at the time and in the place it was done.

In issue as their ground of justification was s.27 of the 1982 Border Law of GDR. S.27, Para 2, Provision 1 reads:

“The use of firearm is justified to prevent the directly imminent carrying out or the continuation of a criminal act which, in the circumstances, appears to be a felony.”

S. 27, Para 5 states:

“When firearms are used the life of the person is if possible to be spared.”

Accordingly, it was a felony to break through the border as the fugitive had done. Fire was only opened after milder measures did not work – the fugitive was called back and a warning shot was fired. The soldiers had aimed at his leg. The flight could not have been prevented at all without firing and, given that he was seconds away from succeeding, single shots would not have been as sure.

However, the Berlin Provincial Court held that the soldiers should have complied with the fundamental principle of proportionality, which meant that the soldiers should not have opened continuous fire. In addition, the aim of preventing a criminal act which did not endanger the life of another could never justify the killing of a person, since his life is the most prized legal value.

In this regard, the Berlin Provincial Court got the positive law wrong. The deed of both the soldiers were justified by s.27, Para 2, Provision 1 and the deed was legal in terms of the positive law at the time. Both soldiers could only be punished if the justification ground of s.27, Para 2 did not apply.

The Federal Court of Justice did not adopt the reasoning. It brought Radbruch’s formula into play:

“…a justificatory ground can be disregarded if the offence is of a higher order of law when it manifested a patently gross offence to the fundamental tenets of justice and humanity: the offence must be so weighty that it violates the legal convictions of all nations in regard to people’s worth and dignity, the contradiction between positive law and justice must be so intolerable that the law has to give way to justice as a false law.”

The last sentence is an almost word for word repetition of Radbruch’s intolerability formula.

The Federal Court of Justice held that the fugitive’s death amounted to an extreme injustice in Radbruch’s sense.

Case 4: Candour Argument

This is a case decided by the Superior Provincial Court Bamberg in 1949 of a woman who wanted to get rid of her husband and thus denounced him to the authorities in 1944 for having made insulting remarks about Hitler. The wife was under no legal duty to report his acts, though what he had said was apparently in violation of statutes making it illegal to make statements detrimental to the government of the Third Reich.

The husband was sentenced to death, but this was not carried out and he was sent to frontline service. The Superior Provincial Court held that, although the conduct of the woman did not violate the law of the Third Reich, it was to be classified as a violation of the law because it “offended against the sense of justice and reasonableness of all right thinking people.” It thus convicted her of deprivation of freedom. The wife pleaded that her husband’s imprisonment was pursuant to the Nazi statutes and hence that she had committed no crime. The Court of Appeal held that the wife was guilty of procuring the deprivation of her husband’s liberty by denouncing him to the German courts, even though he had been sentenced by a court for having violated a statute, since, according to the Appeal Court, the statute was contrary to the sound conscience and sense of justice of all decent human beings.

This reasoning was followed in many cases which have been hailed as a triumph of the doctrines of natural law and as signaling the overthrow of positivism. The unqualified satisfaction with this result seems to be hysteria.

Hart objected in the following way:

“There were, of course, two choices. One was to let the woman go unpunished; one can sympathize with and endorse the view that this might have been a bad thing to do. The other was to face the fact that if the woman were to be published it must be pursuant to the introduction of a frankly retrospective law and with a full consciousness of what was sacrificed in securing her punishment in this way. Odious as retrospective criminal legislation and punishment may be, to have pursued it openly in this case would at least have had the merits of candour.”

The Candour argument is the strongest argument against Radbruch’s formula. One could say that it indeed leads to the conclusion that statutes which justify extreme injustice can never be law or achieve legal validity. According to Radbruch’s formula, it is justificatory ground of an iniquitous regime that is from the outset a nullity. Thus applying Radbruch’s formula does not retroactively change the legal situation; it just determines what at the time of the act the legal situation was. Of course from the perspective of the sheer facts of the matter there is a change, and just in this lies the critical bite of Radbruch’s formula. This change means that the prescription of the lex scripta is not upheld which secured trust in the appropriately enacted and socially effective law which existed at that time.

The core of Hart’s accusation of lack of candour is thus that Radbruch reduced the principle of Nulla poena sine lege to the prescription of the ius praevium and thus concealed the harm to the prescription of the lex scripta. In this way the fact is concealed that there is a choice between "the lesser of two evils”.

Radbruch’s formula excludes legal norms which fail to meet a particular moral criterion which are deemed to be legally defective legal norms. It is crucial that the defect asserted is a legal one and not merely moral.

Radbruch put forward the view that the legal positivism had made “both jurists and the people defenseless against just such arbitrary, cruel, and criminal statute.” His new formula was supposed to provide jurists with “weapons against a recurrence of such an unjust state.”

Radbruch’s formula is the result of a careful balance of 3 elements – justice, purposiveness and legal certainty.

Hart accused Radbruch of “extraordinary naivety”. Hart remarked that nothing followed for the concept of law from the fact that moral principles are “rationally defensible or discoverable”.

Radbruch’s formula seems to be an empowerment of the judge to decide against the law in cases in which his subjective convictions are particularly intensively affected. Hence, anti-positivism presupposes at least a rudimentary non-relativist ethic.

The Federal Constitutional Court justified its application of Radbruch’s formula in the decision about loss of nationality by saying that:

“…The attempt to destroy physically and materially certain parts of one’s own population, including women and children, in accordance with ‘racial’ criteria” intolerably contradicts justice and so amounts to an extreme injustice. Here, we should accept that there us a core area of human rights such that harm to it amounts to extreme injustice”.

In contrast to the destruction of Jews in the Third Reich, there is a serious controversy about whether the killings on the internal German border amount to extreme injustice. In this case, the question whether there was extreme injustice cannot be decided by appeal to evidence but only with the help of arguments.

Fuller objected that Radbruch’s recourse to some “higher law” was superfluous. Fuller suggested bringing into play as a substitute for such substantive standards his inner or internal morality of law, that is, his principle of legality:

“To me there is nothing shocking in saying that a dictatorship which clothes itself with a tinsel of legal form can be so far depart from the morality of order, from the inner morality of law itself, that it ceases to be a legal system.”

Because of the vagueness and ambiguity of the expression “law” (Recht), a decision on the correctness of Radbruch's formula is ultimately possible only on the basis of normative argument.

One can in fact abuse Radbruch’s formula in this way. The potential of abuse, however, never entails necessity. Radbruch was clear that his formula involved a choice between two evils and he did not make the slightest attempt to conceal this. In the end the question is whether it is preferable to incur the cost of a loss in legal certainty or a loss in substantive justice.

Radbruch, Fuller and Hart agreed that a retroactive law is to be recommended over the application of Radbruch’s formula.

One can go one step further and say that Radbruch’s formula is at least in the period after the collapse of an unjust regime, is unnecessary because the new legislature has the power to override legal injustice by means of retroactive law. However, this would be no solution if one takes into account the possibility that the new legislature is altogether inactive or not sufficiently active.

In the case of the Jewish emigrant’s deposit of security, if it were left up to the legislature and the legislature remained inactive; she would endure violation of her rights based on extreme injustice.

There are thus cases in which Radbruch’s formula is necessary to protect fundamental rights. The Federal Court of Justice used Radbruch’s formula to prevent the denial of justice through the restitutory law of restitution to the emigrant. This example shows that respect for the rights of the citizen requires Radbruch’s formula.


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