Gustav Radbruch: Difference between revisions
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Radbruch was a member of the [[Social Democratic Party of Germany]] (SPD), and held a seat in the [[Reichstag (Weimar Republic)|Reichstag]] from 1920 to 1924. In 1921–22 and throughout 1923, he was minister of justice in the cabinets of [[Joseph Wirth]] and [[Gustav Stresemann]]. During his time in office, a number of important laws were implemented, such as those giving women access to the justice system, and, after the assassination of Foreign Minister [[Walther Rathenau]], the [[Law for the Protection of the Republic]], which increased the punishments for politically motivated acts of violence and banned organizations that opposed the "constitutional republican form of government" along with their printed matter and meetings.<ref>{{Cite web |date=2022 |title=Vor 100 Jahren: Reichstag verabschiedet Gesetz zum Schutz der Republik |trans-title=100 Years Ago: The Reichstag Adopts the Law for the Protection of the Republic |url=https://www.bundestag.de/dokumente/textarchiv/2022/kw28-kalenderblatt-18-juli-902944 |access-date=14 September 2023 |website=Deutscher Bundestag, Online-Dienste |language=de}}</ref> | Radbruch was a member of the [[Social Democratic Party of Germany]] (SPD), and held a seat in the [[Reichstag (Weimar Republic)|Reichstag]] from 1920 to 1924. In 1921–22 and throughout 1923, he was minister of justice in the cabinets of [[Joseph Wirth]] and [[Gustav Stresemann]]. During his time in office, a number of important laws were implemented, such as those giving women access to the justice system, and, after the assassination of Foreign Minister [[Walther Rathenau]], the [[Law for the Protection of the Republic]], which increased the punishments for politically motivated acts of violence and banned organizations that opposed the "constitutional republican form of government" along with their printed matter and meetings.<ref>{{Cite web |date=2022 |title=Vor 100 Jahren: Reichstag verabschiedet Gesetz zum Schutz der Republik |trans-title=100 Years Ago: The Reichstag Adopts the Law for the Protection of the Republic |url=https://www.bundestag.de/dokumente/textarchiv/2022/kw28-kalenderblatt-18-juli-902944 |access-date=14 September 2023 |website=Deutscher Bundestag, Online-Dienste |language=de}}</ref> | ||
In 1926, Radbruch accepted a renewed call to lecture at Heidelberg where he delivered his inaugural lecture entitled "''Der Mensch im Recht'' (Law's Image of the Human)" as the newly appointed Professor of Criminal Law on 13 November 1926.<ref>{{Cite journal|last=Radbruch|first=Gustav|title=Law's Image of the Human|year=2020|translator-last=Jeutner|translator-first=Valentin|journal=Oxford Journal of Legal Studies|volume=40|issue=4|pages=667–681|pmid=33536836|pmc=7839934|doi=10.1093/ojls/gqaa026|doi-access=free}}</ref> After the [[Machtergreifung|Nazi seizure of power]] in January 1933, Radbruch, as a former [[History of the Social Democratic Party of Germany|Social Democratic politician]], was dismissed from his university post under the terms of the [[Law for the Restoration of the Professional Civil Service|so-called "Law for the Restoration of the Professional Civil Service" ("Gesetz zur Wiederherstellung des Berufsbeamtentums"]], as universities, similar to public bodies, were subject to civil service laws and regulations. Despite the employment ban in [[Nazi Germany]], during 1935/36 he was able to spend a year in England, at [[University College, Oxford]]. An important practical outcome of this was his book, ''Der Geist des englischen Rechts'' (The Spirit of English Law), although this could be published only in 1945.<ref name=GRlautRA>{{cite web|url=https://www.uni-kiel.de/grosse-forscher/index.php?nid=radbruch&lang=e|last=Alexy|first=Robert|author-link=Robert Alexy|title=Gustav Radbruch|website=Kiel University:History of the University:Famous scholars from Kiel|publisher=Christian-Albrechts-Universität zu Kiel|access-date=16 September 2021}}</ref> During the Nazi period, he devoted himself primarily to cultural-historical work. | In 1926, Radbruch accepted a renewed call to lecture at Heidelberg where he delivered his inaugural lecture entitled "''Der Mensch im Recht'' (Law's Image of the Human)" as the newly appointed Professor of Criminal Law on 13 November 1926.<ref>{{Cite journal|last=Radbruch|first=Gustav|title=Law's Image of the Human|year=2020|translator-last=Jeutner|translator-first=Valentin|journal=Oxford Journal of Legal Studies|volume=40|issue=4|pages=667–681|pmid=33536836|pmc=7839934|doi=10.1093/ojls/gqaa026|doi-access=free}}</ref> After the [[Machtergreifung|Nazi seizure of power]] in January 1933, Radbruch, as a former [[History of the Social Democratic Party of Germany|Social Democratic politician]], was dismissed from his university post under the terms of the [[Law for the Restoration of the Professional Civil Service|so-called "Law for the Restoration of the Professional Civil Service" ("Gesetz zur Wiederherstellung des Berufsbeamtentums")]], as universities, similar to public bodies, were subject to civil service laws and regulations. Despite the employment ban in [[Nazi Germany]], during 1935/36 he was able to spend a year in England, at [[University College, Oxford]]. An important practical outcome of this was his book, ''Der Geist des englischen Rechts'' (The Spirit of English Law), although this could be published only in 1945.<ref name=GRlautRA>{{cite web|url=https://www.uni-kiel.de/grosse-forscher/index.php?nid=radbruch&lang=e|last=Alexy|first=Robert|author-link=Robert Alexy|title=Gustav Radbruch|website=Kiel University:History of the University:Famous scholars from Kiel|publisher=Christian-Albrechts-Universität zu Kiel|access-date=16 September 2021}}</ref> During the Nazi period, he devoted himself primarily to cultural-historical work. | ||
Immediately after the end of the [[Second World War]] in 1945, he resumed his teaching activities, but died in [[Heidelberg]] in 1949 without being able to complete his planned updated edition of his textbook on legal philosophy. | Immediately after the end of the [[Second World War]] in 1945, he resumed his teaching activities, but died in [[Heidelberg]] in 1949 without being able to complete his planned updated edition of his textbook on legal philosophy. | ||
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[[File:Radbruch Rechtsphilosophie.png|thumb|upright|Title page of ''Rechtsphilosophie'' (1932)]] | [[File:Radbruch Rechtsphilosophie.png|thumb|upright|Title page of ''Rechtsphilosophie'' (1932)]] | ||
Radbruch's legal philosophy derived from [[neo-Kantianism]], which assumes that a categorical cleavage exists [[Is–ought problem|between "is" (''sein'') and "ought"]] (''sollen''). According to this view, "should" can never be derived from "Being." Indicative of the [[Heidelberg school of neo-Kantianism]] to which Radbruch subscribed was that it interpolated the value-related cultural studies between the explanatory sciences (being) and philosophical teachings of values (should). | Radbruch's legal philosophy derived from [[neo-Kantianism]], which assumes that a categorical cleavage exists [[Is–ought problem|between "is" (''sein'') and "ought"]] (''sollen''). According to this view, "should" can never be derived from "Being." Indicative of the [[Heidelberg school of neo-Kantianism]] to which Radbruch subscribed was that it interpolated the value-related cultural studies between the explanatory sciences (being) and philosophical teachings of values (should). | ||
[[File:RadbruchGrab2.jpg|thumb| | [[File:RadbruchGrab2.jpg|thumb|Radbruch's grave in Heidelberg]] | ||
In relation to the law, this [[triadism]] shows itself in the subfields of legal sociology, legal philosophy and legal dogma. Legal dogma assumes a place in between. It posits itself in opposition to positive law, as the latter depicts itself in social reality and methodologically in the objective "should-have" sense of law, which reveals itself through value-related interpretation. | In relation to the law, this [[triadism]] shows itself in the subfields of legal sociology, legal philosophy and legal dogma. Legal dogma assumes a place in between. It posits itself in opposition to positive law, as the latter depicts itself in social reality and methodologically in the objective "should-have" sense of law, which reveals itself through value-related interpretation. | ||
The core of Radbruch's legal philosophy consists of his tenets the concept of law and the idea of law. The idea of law is defined through a triad of justice, utility and certainty. Radbruch thereby had the idea of utility or usefulness spring forth from an analysis of the idea of justice. Upon this notion was based the [[Radbruch formula]], which is still vigorously debated today. The concept of law, for Radbruch, is "nothing other than the given fact, which has the sense to serve the idea of law. | The core of Radbruch's legal philosophy consists of his tenets the concept of law and the idea of law. The idea of law is defined through a triad of justice, utility and certainty. Radbruch thereby had the idea of utility or usefulness spring forth from an analysis of the idea of justice. Upon this notion was based the [[Radbruch formula]], which is still vigorously debated today. The concept of law, for Radbruch, is "nothing other than the given fact, which has the sense to serve the idea of law".{{citation needed|date=August 2025}} | ||
Hotly disputed is the question whether Radbruch was a legal positivist before 1933 and executed an about-face in his thinking due to the advent of Nazism, or whether he continued to develop, under the impression of Nazi crimes, the relativistic values-teaching he had already been advocating before 1933. | Hotly disputed is the question whether Radbruch was a legal positivist before 1933 and executed an about-face in his thinking due to the advent of Nazism, or whether he continued to develop, under the impression of Nazi crimes, the relativistic values-teaching he had already been advocating before 1933.{{citation needed|date=August 2025}} | ||
The problem of the controversy between the spirit and the letter of the law, in Germany, has been brought back to public attention due to the trials of former East German soldiers who guarded the Berlin | The problem of the controversy between the spirit and the letter of the law, in Germany, has been brought back to public attention due to the trials of former East German soldiers who guarded the Berlin Wall{{mdash}}the so-called necessity of following orders.{{citation needed|date=August 2025}} | ||
In sum, [[Radbruch formula|Radbruch's formula]] argues that where [[statutory law]] is incompatible with the requirements of [[justice]] "to an intolerable degree", or where statutory law was obviously designed in a way that deliberately negates "the equality that is the core of all justice", statutory law must be disregarded by a judge in favour of the justice principle. Since its first publication in 1946 the principle has been accepted by Germany's Federal Constitutional Court in a variety of cases. Many people partially blame the older German legal tradition of [[legal positivism]] for the ease with which Hitler obtained power in an outwardly "legal" manner, rather than by means of a coup. Arguably, the shift to a concept of [[natural law]] ought to act as a safeguard against dictatorship, an untrammeled State power and the abrogation of civil rights. | In sum, [[Radbruch formula|Radbruch's formula]] argues that where [[statutory law]] is incompatible with the requirements of [[justice]] "to an intolerable degree", or where statutory law was obviously designed in a way that deliberately negates "the equality that is the core of all justice", statutory law must be disregarded by a judge in favour of the justice principle. Since its first publication in 1946 the principle has been accepted by Germany's Federal Constitutional Court in a variety of cases. Many people partially blame the older German legal tradition of [[legal positivism]] for the ease with which Hitler obtained power in an outwardly "legal" manner, rather than by means of a coup. Arguably, the shift to a concept of [[natural law]] ought to act as a safeguard against dictatorship, an untrammeled State power and the abrogation of civil rights. | ||
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[[Category:1949 deaths]] | [[Category:1949 deaths]] | ||
[[Category:Politicians from Lübeck]] | [[Category:Politicians from Lübeck]] | ||
[[Category:German Lutherans]] | |||
[[Category:Social Democratic Party of Germany politicians]] | |||
[[Category:Justice ministers of Germany]] | |||
[[Category:Members of the Reichstag 1920–1924]] | |||
[[Category:Jurists from Schleswig-Holstein]] | [[Category:Jurists from Schleswig-Holstein]] | ||
[[Category: | [[Category:LMU Munich alumni]] | ||
[[Category:Leipzig University alumni]] | [[Category:Leipzig University alumni]] | ||
[[Category:Humboldt University of Berlin alumni]] | [[Category:Humboldt University of Berlin alumni]] | ||
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[[Category:Academic staff of the University of Kiel]] | [[Category:Academic staff of the University of Kiel]] | ||
[[Category:Academic staff of Heidelberg University]] | [[Category:Academic staff of Heidelberg University]] | ||