Radbruch formula
The Radbruch formula is a legal theory which was first formulated in a 1946 essay by the German law professor and politician Gustav Radbruch. 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 ifand only ifthe 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. Radbruch devised the formula following his experience of the judiciary in Nazi Germany, and it has been applied in the decision of courts in the Federal Republic of Germany numerous times. His 1946 essay Gesetzliches Unrecht und übergesetzliches Recht, which first included his theory, has been regarded as one of the most influential German legal-philosophical writings of the 20th century.
The Radbruch formula has a number of historical antecedents, such as Saint Augustine's maxim "an unjust law is no law at all".
Formation and content
Before the Second World War, Radbruch seems to have been a supporter of unconditional legal positivism, which demands a strict separation between law and morality. In consequence, judges would have to apply positive law without exception. His experience under Nazi rule seems to have modified his view. Shortly after the end of the war, Radbruch first stated his formula in a 1946 essay:Application in court
Both the German Federal Constitutional Court and the Federal Court of Justice 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 acts, those acts had been 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 acts in question.More recently, the Radbruch formula reappeared in trials against border guards in the former East Germany who had shot people attempting to escape to the West under the policy of Schießbefehl.