THOMAS MERTENS

NAZISM, LEGAL POSITIVISM AND RADBRUCHS THESIS ON STATUTORY INJUSTICE

ABSTRACT. The small article Statutory Injustice and Suprastatutory Law published in 1946 by Gustav Radbruch is one of the most important texts in 20th century legal philosophy. Until recently, its importance was said to stem from its renewal of natural law and from its formula, according to which the value of justice should override that of legal certainty in extreme cases. In this contribution, a close examination will show that Radbruchs text is less univocal than often suggested. I argue that Radbruch deals here with the acute problems of apparent criminal legality during the Nazi-era rather than with problems of validity. In order to make this clear, I rst briey sketch Radbruchs personal history and the context into which the article ts. Secondly, I analyze the text itself and focus on how to understand the well-known grudge informer case. Finally, I pay some attention to the renewed topical interest of Radbruchs formula, owing to the fact that it was used in the trials against former-GDR soldiers who shot fugitives at the Berlin Wall, and their superiors. KEY WORDS: grudge informer case, legal positivism, natural law, Nazism, Radbruch, wall shootings case, Weimar republic

I NTRODUCTION1 The article published by the then and now famous German legal philosopher Gustav Radbruch almost immediately after the Second World War: Statutory Injustice and Suprastatutory Law,2 is one of the most important texts in 20th century legal philosophy. Until recently, the importance of the article was said to stem from the fact that it testies to a fundamental change in Radbruchs views on law. Rather than remaining a legal posi1 In writing this paper, I drew on my publication, T. Mertens, Radbruch and Hart on

the Grudge Informer. A Reconsideration, Ratio Juris 15/2, 2002. 2 G. Radbruch, Gesetzliches Unrecht und bergesetzliches Recht, originally in Sddeutsche Juristenzeitung 1 (1946), 105108; Reprinted in G. Radbruch, Der Mensch im Recht (Gttingen, 1957), 111124 (references are to this edition); in G. Radbruch, Rechtsphilosophie, 7th ed., Hrsg. E. Wolf (Stuttgart, 1970), 347357; in G. Radbruch, Gesamtausgabe, Hrsg. A. Kaufmann, III (Heidelberg, 1990), 8393. There is a new, ne German edition of the Rechtsphilosophie with editorial footnotes, edited by Stanley L. Paulson and Ralf Dreier, which includes this famous essay: G. Radbruch, Rechtsphilosophie (Studienausgabe), Mller (Heidelberg, 1999), 211219. Law and Critique 14: 277295, 2003. 2003 Kluwer Academic Publishers. Printed in the Netherlands.

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tivist, he is said to have converted to the opposite position, namely that of natural law. According to the post-war Radbruch, the promulgation of a law is still a necessary condition for law to exist, but it no longer is its sufcient condition at the same time. In order to be valid, the law has to full fundamental moral requirements as formulated in basic human rights. Radbruch gives a specication of this requirement his inseparabilitythesis, so to speak in a rather specic formula, which says that in extreme cases the value of justice can have priority over or override the value of legal certainty. The so-called Radbruch formula has been inuential because of its creating a general return to natural law theory in Germany, as becomes clear in a 1962 collection of essays edited by Werner Maihofer, the future FRG minister of the Interior and President of the European University Institute,3 and in the case law of the German High Court and of the German Constitutional Court.4 This return to natural law theory and the specic case with which it is connected, the so-called grudge informer-case, has provoked a erce debate between natural law theory and legal positivism, in the Anglo-Saxon world as well, with Lon Fuller and Herbert Hart as the main participants.5 This result, however, seems a bit strange when looking closely at Radbruchs text. It deals with problems that were acute and pressing at the time of its publication, namely those that resulted from the apparent legal criminality or criminal legality during the Nazi-era. This legal reality had to be faced and cases had to be decided. Radbruchs formula plays indeed an important role in his solution of these cases, but the essay as
Maihofer, Hrsg., Naturrecht oder Rechtspositivismus, Wissenschaftliche Buchgesellschaft (Darmstadt, 1972). Originally, this collection was published in 1962, with essays published between 1948 and 1960. The collection starts with a Radbruch essay. Signicantly, it also contains contributions written by K. Larenz and E. Forsthoff. 4 For example, Entscheidungen des Bundesverfassungsgericht (BVerfGE) 23, 1968, 98113, 106 with regard to the 11. Verordnung zum Reichsbrgergesetz (1941), in which the Court formulates as follows: 1. Nationalsozialistischen Rechts vorschriften kann die Geltung als Recht abgesprochen werden, wenn sie fundamentalen Prinzipien der Gerechtigkeit so evident widersprechen, da der Richter, der sie anwenden oder ihre Rechtsfolgen anerkennen wollte, Unrecht statt Recht sprechen wrde. For an overview, see B. Schumacher, Rezeption und Kritik der Radbruchschen Formel, Diss. (Gttingen, 1985), 71102; R. Alexy, Begriff und Geltung des Rechts (Mnchen, 1992), 52136. 5 H.L.A. Hart, Positivism and the Separation of Law and Morals, in Harvard Law Review 71 (195758), 593629; H.L.A. Hart, The Concept of Law, 2nd ed., with a new postscript, original 1961 (Oxford University Press, 1994). L. Fuller, Positivism and Fidelity to Law a Reply to Professor Hart, in Harvard Law Review 71 (195758), 630 672 (reprinted in: J. Feinberg and H. Gross, eds., Philosophy of Law, 3rd edition (Belmont, 1986), 88108; L. Fuller, The Problem of the Grudge Informer, in L. Fuller, The Morality of Law (New Haven and London, 1964), 245253.
3 W.

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a whole seems motivated by a practical need rather than by theoretical concerns. Its primary focus is on the possibilities and difculties of penal law when faced with radical political changes and it thus belongs to what is called in German, juristische Vergangenheitsbewltigung, the coming to terms with the past in matters of law. In dealing with these cases, Radbruch indeed refers to legal positivism as the general attitude of those that interpreted and applied the law during the Nazi-era. He even argues that the Nazi regime was successful in using the legal system for its criminal purposes because of positivism, which holds that no other source of law exists than statutory, posited law. The title of Radbruchs article is a direct rejection of this mentality, because in the positivist view concepts such as statutory injustice and suprastatutory law appear to be contradictions. Still, Radbruchs aims seem to be practical ones and, thus, there seems to be a gap between these practical aims and the articles theoretical impact. Drawing on some excellent publications on Radbruch,6 I want to highlight some of the ambiguities in Radbruchs text. I want to make clear that the text is much less univocal than it initially appeared to be. In order to do so, I will rst briey sketch Radbruchs personal history and the context of the article. Secondly, I will analyze the text itself and focus on how to understand the well-known grudge informer case. Finally, I will pay some attention to the renewed topical interest of Radbruchs formula, owing to the fact that it was used in the trials against former-GDR soldiers who shot fugitives at the Berlin Wall, and their superiors. Recently, the juridical discussion on the criminal accountability of these soldiers and their superiors came to an end with the decision by the European Court of Human Rights, to which these defendants went after all their legal objections had been rejected by German courts. In its decision, the European Court held that their convictions did not constitute a violation of article 7 of the European Convention on Human Rights.7

6 I greatly beneted from the following essays: M. Walther, Hat der juristische Positi-

vismus die deutschen Juristen im Dritten Reich wehrlos gemacht? Zur Analyse und Kritik der Radbruch-These, Recht und Justiz im Dritten Reich, R. Dreier, W. Sellert, Hrsg. (Frankfurt am Main, 1989), 323354; S.L. Paulson, Lon L. Fuller, Gustav Radbruch and the Positivist Theses, Law and Philosophy 13 (1994), 313359; S.L. Paulson, Radbruch on Unjust Laws: Competing Earlier and Later Views, Oxford Journal of Legal Studies 15 (1995), 489500. 7 ECHR, 22 March 2001 (Streletz, Kessler and Krenz v. Germany); ECHR, 22 March 2001 (K.-H. W. v. Germany). See also H. Lensing and T. Mertens, Der Europische Gerichtshof fr Menschenrechte und die Mauerschtzen. Die Radbruchsche Formel oder: Innerer Widerspruch, Jahrbuch der Juristische Zeitgeschichte (2002).

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O N R ADBRUCH AND H IS C ONTEXT In August 1946, at the time when Radbruch wrote the article that made him famous for defending and renewing natural law, he already was a much-respected lawyer and law professor. He was born in Lbeck in 1878, went to university in, among other places, Berlin and Heidelberg, and held his rst Chair from 1914 onwards in Knigsberg in East-Prussia (especially known since Immanuel Kant lived and worked there during most of the 18th century). In that same year he published his legal philosophy, Grundzge der Rechtsphilosophie, a book that was reprinted many times and is still used, in its third and nal 1932 edition, known as the Rechtsphilosophie. After World War I, he was elected into the Reichstag as an MP for the Social Democrats, the SPD. This was a surprise as not many law professors were members of the SPD or supported the newly established Weimar Republic. Even more surprisingly, Radbruch, soon after in the early twenties, took up twice the position of Secretary of Justice. In this capacity he contributed signicantly to reforming criminal law in the spirit of penalists, Feuerbach and Von Liszt, whom he admired. In 1926, he returned to the academic world and took up a position at the University of Heidelberg. He worked there until the Nazis cast him aside after their assumption of power in early 1933.8 During the following years, he kept up his moral integrity and did not compromise himself in any way with the regime. After the war, he was quickly restored to ofce. Unfortunately, he was unable to hold it for long, as an illness made his retirement necessary. He died in 1949.9 After the war he published a number of short articles.10 Two of these articles became rather famous: Five Minutes of Legal Philosophy11 and Statutory Injustice and Suprastatutory Law. As already mentioned, this last article deals with the problem of how to evaluate judicially individuals who committed crimes under the veil of Nazi-legality. The way in which Radbruch would like to have the problem addressed is shown in the title.
8 This was possible because of the notorious Gesetz zur Wiederherstellung des Berufsbeamtentums of April 7, 1933. 9 For a comprehensive biography I refer to: G. Radbruch, Einleitung des Herausgebers: Gustav Radbruchs Leben und Werk, Rechtsphilosophie, 7th ed., supra n. 2, at 1777; E. Wolf, Gustav Radbruch, Grosse Rechtsdenker der Deutschen Geistesgeschichte (Tbingen, 1963), 713765. 10 Contrary to what is often thought, Radbruch has been very active in the years following the war. He published some 70 contributions and articles. He also published during his 12-year absence from university. See S.L. Paulson, Radbruch on Unjust Laws: Competing Earlier and Later Views, supra n. 6, at 489. 11 English version in J. Feinberg and H. Gross, eds., supra n. 5, at 109110.

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In his opinion, such cases are forms of statutory injustice, i.e., forms of criminal (unjust) behavior that, erroneously, became covered by statutes. In Radbruchs opinion, therefore, a difference between statute and law exists. This possibility was overlooked by legal positivism, as it identied statute and law with one another. Radbruch rejects positivism12 and maintains that statutes in themselves do not necessarily constitute law. Positive law needs to be tested by using a suprastatutory criterion, which Radbruch further species by the concepts of natural law, divine law, or reasonable law. He admits that the details concerning this criterion are questionable, but that its hard core can be found in the declarations of human and civil rights.13 Now this element of Radbruchs text alone asks for some comment. It is said that this element testies to a fundamental change in Radbruchs conception of law. His acceptance of the possibility of suprastatutory law would imply a radical break with his own pre-war, positivistic views. As a result of being confronted with certain legal cases and, more generally, with Hitler-Germany, Radbruch realized that legal positivism leads to morally unacceptable conclusions. Moreover not only did he break with legal positivism, but he also held positivism responsible for the fact that so many involved in administrating the legal process in Germany adapted so easily to the new order, and therefore to statutory injustice. Radbruch describes this as follows: by means of two maxims, National Socialism brought about obedience: among soldiers with the principle of order is order and among lawyers with the principle of law is law. And this mentality (according to which statutes fully constitute law and therefore need no further moral examination) was, for Radbruch, predominant already decades before the Nazi take-over.14 So the lack or absence of any suprastatutory criterion contributed importantly to the aberrations of Nazism. This twofold assertion that Radbruch changed his position and that positivism is responsible for Nazism has often been adopted, until recently, without much questioning.15 With regard to the second element, however,
12 Like Radbruch himself, I make no distinction between positivism and legal positivism. 13 G. Radbruch, Fnf Minuten Rechtsphilosophie, Rechtsphilosophie, supra n. 2, at

336. Note that this phrasing dates back from before the Universal Declaration. 14 . . ., seit vor etwa hundert Jahren die letzten Naturrechtlehrer unter den Juristen gestorben sind, . . ., G. Radbruch, Fnf Minuten Rechtsphilosophie, supra n. 13, at 335. 15 The assertion is twofold: on the one hand, it presupposes that Radbruch changed his position after the war compared to his pre-war position, e.g.: H.L.A. Hart, supra n. 5, at 616. On the other hand, there is the assertion that positivism is responsible for the ease with which statutory injustice was accepted, e.g.: L. Fuller, Positivism and Fidelity to Law a Reply to Professor Hart, Philosophy of Law, supra n. 5, at 101.

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it is questionable that positivism caused legal practice to fail so terribly. This may be illustrated by looking at the way things went for some positivists and their adversaries after 1933. I indicated earlier that the positivist Radbruch was, legally, forced to step back. Let us also look at the very different consequences these political events had for the positivist Hans Kelsen and for Carl Schmitt, who ercely opposed positivism.16 Like Radbruch, Kelsen was strongly inuenced by neo-Kantianism. The future author of the Reine Rechtslehre lost his Chair immediately when the Nazis took over power, while Schmitt, who was even appointed by Kelsen in Cologne, did nothing to prevent it.17 One cannot hold that things went continuously well for anti-positivist Schmitt during the twelve years of the Nazi regime, but he cannot take credit (although he claimed this credit after the war!) for the fact that his ambitions of becoming the leading Nazi-lawyer did not come true.18 However, if we leave personal affairs and careers aside, and more generally investigate Radbruchs thesis as an empirical statement on the legal profession during the Weimar years, it turns out to be questionable. Positivism was not the ruling doctrine in Germanys legal world.19 Of course, things depend here on denitions. But it seems not unreasonable to dene positivism as the conviction that one has to obey the law, simply because it is posited, and that examining statutes by reference to unwritten legal principles is not allowed. Some call this statutory positivism. Now, many sources indicate that large parts of
16 Schmitt characterizes positivist thinking as a form of normativism, which localizes

law in a general norm. By contrast, he rst defends decisionism, which only deems law present in concrete decisions regarding individual cases. Later on, Schmitt turns to conceptualizing law as embodied in concrete orders (Konkret Ordnungsdenken). See, in particular, his ber die drei Arten des rechtswissenschaftlichen Denkens (Hamburg 1934). See also R. Dreier, Gustav Radbruch, Hans Kelsen, Carl Schmitt, in H. Haller et al., Hrsg. Recht und Staat (FS Winkler) (Wien, 1997), 193215. 17 To my knowledge, this disconcerting affair boils down to the following: some faculties tried to keep their colleagues that were threatened with dismissal, by sending a request to the Ministry. In some cases these efforts were successful. The faculty of Cologne also sent a request on behalf of Kelsen. All faculty members except Schmitt signed that request. After 1933, Schmidts writings are full of anti-Semitism. His remarks on Radbruch after the war (in his Glossarium) are malicious. See Dreier, supra n. 16, at 197, 200201; S.L. Paulson, Two Guides to the Thought of the German Jurists, and M. La Torre, Carl Schmitt and the Third Reich , both in: Ratio Juris, 4 (1991), 257, 261262; R. Gross, Carl Schmitts Nomos und die Juden , in Merkur (1993), 410420; R. Gross, Carl Schmitt und die Juden. Eine deutsche Rechtslehre (Frankfurt am Main, 2000). 18 See B. Rthers, Entartetes Recht. Rechtslehren und Kronjuristen im Dritten Reich (Mnchen, 1989), 99180. 19 I refer to Rthers, supra n. 18; M. Walther, supra n. 6; I. Maus, Gesetzesbindung der Justiz und die Struktur der Nationalsozialistischen Rechtsnormen, in Recht und Justiz im Dritten Reich , supra n. 6, at 323354, 8192. See also S.L. Paulson, Lon L. Fuller, Gustav Radbruch and the Positivist Theses, supra n. 6, 323324, 331332, 354355.

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Germanys legal community during the Weimar years were not devoted to such a statutory positivism, and this should not come as a surprise. After all, it would have been strange if the lack of loyalty to the Weimar Republic, which was so characteristic of large parts of the German population and of its intelligentsia,20 would have passed by the German legal community. With his commitment, Radbruchs attitude to Weimar was the exception, not the rule. In many ways, his colleagues tried to undermine the authority of the Weimar legislator: by interpreting extensively or teleologically, by arbitrary application of the law,21 by criticizing democratically established laws, by referring to the law instead of statutes.22 The lawyers presented their criticism on the Weimar legislator under the veil of neutrality and impartiality, but this so-called impartiality was a way to distance themselves from Weimar. The Nazi take-over brought those lawyers a state they regarded as being superior to the Weimar Republic. Therefore, they rapidly dropped this veil of impartiality and were eager to adapt positive law to the new circumstances in the so-called Deutsche Rechtserneuerung (the renewal of German law). National Socialism did not, as Radbruch suggests, make use of a positivist mentality. Nor did it make efforts to establish positivism. Rather the contrary: Nazism fundamentally wanted to distance itself from positivism which it considered to be a species of the so-called normativism, i.e., the view that law primarily consists of rules and that the legislator within the state takes into account different social opinions and rules by means of impartially applied, abstract laws. As such, positivism stands for rationality, for calculability, for individuality. Statutory positivism would have meant an independent centre of power and a strict delity of the judiciary to statutes. This would have been an obstacle for the realization of ever-changing political goals and policies. In the Nazi ideology, state and law were not considered as a goal in itself, nor was much attention paid to positive laws and rules.23 Nazism meant hostility to positivism and to its origin in eighteenth-century, rational natural law.24 Its own form of natural law,
20 A well-known example is Heidegger. 21 Instructive in this regard is the difference between the judgments concerning political

murders depending on whether they were committed by left-wing activists and communists or by right-wingers. See, e.g., M. Walther, supra n. 6, at 328. 22 See, e.g., M. Hirsch, D. Majer and J. Meinck, Hrsg., Recht, Verwaltung und Justiz im Nationalsozialismus (Nomos, Baden-Baden, 1997), 2, 6678. 23 Ever since Franz Neumanns Behemoth and Fraenkels thesis of the Dual State, there is a vivid discussion on the legal character of the Nazi-state. See, for example, M. La Torre, A National-Socialist Jurist on Crime and Punishment. Karl Larenz and the so-called Deutsche Rechterneuerung, Rechtstheorie 25 (1994), 59, note 11 for references. 24 Concerning the connection between Kantianism and positivism, see: H. Kelsen, Vom Wesen und Wert der Demokratie (Tbingen, 1929), 119; C. Schmitt, supra n. 16, at 4243;

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vlkisches Naturrecht derives from nature in the biological sense the superiority and inferiority of certain concrete forms of life as embodied in different peoples.25 Supported by such supra-positive, natural norms, various philosophers of law had little trouble with nding justications for many issues, ranging from the abolition of political parties and the federal structure of the state (starting with the Preuenschlacht) to the lifting of the ban on the use of analogy and the ban on retroactivity in criminal law and to concentration camps.26 The assertion that Radbruch changed his view on the nature of law, must be met with some skepticism too. The claim seems to be valid only in two respects. Walther and others presume that Radbruch primarily criticizes his own views on a specic point. They think that Radbruch deplores one specic element of his Rechtsphilosophie, in which he states that it is the categorical duty of every judge to obey the law and to apply it even when the result of this application would run contrary to his own sense of justice.27 As we will see, the position of the judiciary plays a crucial role in Radbruchs text at hand. Another element of truth resides in Radbruchs allegations against positivism, when it is interpreted not as statutory positivism, but as the equation of law and power. However, interpreting positivism as the willingness to obey all enforceable norms and as the tendency to suppose legitimization when power exists,28 has little to do with statutory positivism, as defended by Radbruch in the Rechtsphilosophie. As a result of this, it is not so evident that Radbruch radically changed his views nor that a large gap exists between Radbruchs positivist view on law before the Nazi era and his natural law view after the war. Radbruchs so-called legal positivism did not identify law with power. In a manner that resembles Harts later criticism on Austins denition
I. Maus, Die Trennung von Recht und Moral als Begrenzung des Rechts, Rechtstheorie 20 (1989), 191 ev. 25 Also B. Schumacher, supra n. 4, at 27, 30, 63; H. Rottleuthner, Rechtsphilosophie und Rechtssoziologie im Nationalsozialismus, Recht und Justiz im Dritten Reich, supra n. 6, at 305; B. Rthers, supra n. 18, at 65, 205; also (afterwards!) E. Forsthoff, Zur Problematik der Rechtserneuerung (1947/48), in W. Maihofer, Hrsg., supra n. 3, at 78 79. 26 H. Rottleuthner, Rechtsphilosophie und Rechtssoziologie im Nationalsozialismus, Recht und Justiz im Dritten Reich, supra n. 6, at 301. 27 G. Radbruch, Rechtsphilosophie, supra n. 2, at Par. 10, 182: it is the professional duty of the judiciary nur zu fragen, was Rechtens ist, und niemals, ob es auch gerecht sei. 28 M. Walther, supra n. 6, at 339343, in line with G. Radbruch, Gesetzliches Unrecht und bergesetzliches Recht, supra n. 2, at 118; G. Radbruch, Fnf Minuten Rechtsphilosophie, supra n. 13, at 335. On the basis of this ambivalence, Paulson distinguishes between statutory legal positivism and open legal positivism, in Lon L. Fuller, Gustav Radbruch and the Positivist Theses, supra n. 6, at 328338.

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of law, Radbruch constantly emphasises that law is a normative order that cannot be deduced from power alone. The relation between law and power is a complex one, as law embodies several essential values. In this respect, it is interesting to look at his short 1934 essay, Der Relativismus in der Rechtsphilosophie (Relativism in Legal Philosophy).29 It is true: Radbruchs emphasis on relativism would seem to imply a rejection of absolute values well known in natural law doctrine. But evidently, Radbruch defends relativism here against the kind of absolute values that are being promoted in those years. Indeed, he rejects the view that a recognizable and provable conception of absolute just law exists, yet look at what he deduces from relativism. According to Radbruch, in society a diversity of value systems exists. Scientically, a choice between those values is not possible, since science is concerned with the realm of being and not with that of ought. Since truth cannot decide on the validity of law, the very act by which a will posits law is not an act of scientic truth. Therefore, this act cannot and may not put an end to the ideological struggle over the question which values should gain the status of positive law. A relativist view in legal philosophy necessarily implies a number of fundamental freedoms, which enable citizens to express their views on what the law should look like. Every conceptualization of legislative power would therefore immediately be confronted by the natural limits to its power set by those freedoms. Since law aims at establishing order, a relativists view on law would also immediately bring in the notions of the rule of law and the separation of powers. It would be senseless to defend the view that law is created to establish order, if the legislator would not subject itself to that order, or if the executive power could have the discretion to create statutes by itself. Thus, relativism implies respect for different views on values and for persons holding these views, i.e., democracy. In addition, it implies socialism, since relativism demands that all should have sufcient goods to hold and develop their views. Radbruch closes his 1934 article by arguing that from the nothing (of normative relativism) everything can be deduced: human rights, rule of law, separation of powers, popular sovereignty, freedom and equality. For present day readers, this deduction of the 1789 ideas might make a somewhat nave impression, but it certainly shows that Radbruch, in his legal positivist view, did not equate law with whatever any political power would ordain. It is regrettable that Radbruchs questionable thesis on the relation between Nazism and positivism has been adopted so easily by many. It discredited legal positivism and it prevented questions on the moral responsibility for criminal abuse of the law to be raised at an early stage.
29 In G. Radbruch, Der Mensch im Recht, supra n. 2, at 8087.

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Probably the most distressing aspect of Radbruchs thesis is that it could and indeed did function as an excuse. Since positivism was to blame, nobody could be held accountable personally. Positivism made the entire legal community, even the entire population,30 defenseless against laws of arbitrary and criminal content. Due to their bad training and positivist mentality, the legal profession is portrayed as a group of victims, instead of offenders. As we will see, one of Radbruchs conclusions is that judges, who applied unjust laws and interpreted normal laws in an unjust, but politically prescribed way, cannot be prosecuted for bending the law (Rechtsbeugung, based on paragraphs 366 and 344 of the Criminal Code). The reason is very simple: judges who only know of the existence of positive law and not of any suprastatutory criterion, can only violate the law by not applying it, not by applying it. By denition they cannot have the intention to bend the law.31 It cannot come as a surprise that Radbruchs post-war attack on positivism was seen as implicit support for those, like Schmitt, who had attacked and opposed positivism already during the Weimar Republic. In connection with the eagerness with which Radbruchs accusations on positivism were taken for granted, a last element must be mentioned. Immediately after the war, the question at stake was whether the unconditioned surrender by the Nazi-regime to the allied forces legally entailed the demise of the legal personality of the German Empire. This was the position taken by Kelsen.32 In retrospect, it can be argued that Radbruchs thesis helped to defend the opposite position. If indeed positivism were to blame, it would be possible to make use of the legal infrastructure of the old regime, albeit strongly tied to another legal theory, in order to reconstruct on the ruins of the Third Reich a new order, with sufcient discontinuity as well as sufcient continuity. Within this option, Radbruchs thesis could serve as a fundamental building block.33

R ADBRUCH S C ASES We have seen that many things can be said about Radbruchs article, even without directly addressing the natural law formula for which it became famous. The interesting question arises, thus, whether an interpretation of
30 G. Radbruch, Fnf Minuten Rechtsphilosophie, supra n. 13, at 335. 31 G. Radbruch, Gesetzliches Unrecht und bergesetzliches Recht, supra n. 2, at 123. 32 H. Kelsen, The International Legal Status of Germany to be Established Immediately

Upon Termination of the War, The American Journal of International Law 38 (1944), 689694. 33 M. Walther, supra n.6, at 352. Also BverfGE 3, 58 et seq.

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this formula would conrm or rather reject our ndings so far. We need to know, therefore, how Radbruchs famous formula reads and what it is aiming at. Importantly, it is located in the middle of the article, in its third paragraph. The rst paragraph is a short introduction in which the general accusation against positivism is made. The second paragraph starts out with lengthy quotes from postwar jurisprudence concerning three cases and a question of law. The third paragraph is intended to provide us with a solution of these problems. The formula cannot be studied, therefore, without taking the context of these cases into account. These are the cases of the so-called grudge informer. Puttfarken denounced Gttig during the war because of his statement that Hitler is a mass murderer and criminally responsible for the war. The consequence was that Gttig was sentenced to death. Post-war jurisprudence posed the question whether Puttfarken could be held criminally responsible for Gttigs death. Because, ultimately, it was the judges, not Puttfarken, that sentenced him to death, the question is raised concerning the criminal responsibility of those judges who convicted Gttig. Next is the case of the executioners that carried out unjust verdicts. Finally, there is the case of the deserter, who had no choice but to kill a civil servant of the Nazi-regime in order to escape a death-threat. Invariably, so Radbruch holds, the question is whether now, in the post-Nazi era, criminal prosecutions should commence. And the fact that they have begun, means (according to Radbruch) that from many angles, including legal practice, positivism is being contested by the use of notions like statutory injustice and suprastatutory law. Having thus introduced these cases, Radbruch turns to a more general reection in the third paragraph, in which his allegations against positivism are repeated and in which his formula is introduced in order to solve the aforementioned cases. This formula itself concerns the relation between the values that are inherent in law, namely legal certainty, purposiveness and justice. There is nothing new in Radbruchs notion that these three elements are constitutive of law. He argued in this vein in the Rechtsphilosophie and in the 1937 article Der Zweck des Rechts (The Aim of Law). But there is a difference. Earlier on, Radbruch argued that, although the relation between these elements is not without frictions,34 these values were of equal importance. Now, he argues that the value of justice can precede that of legal certainty in extreme cases. The formula is as follows:
The conict between justice and legal certainty should be solved accordingly: Preference is given to the positive law, duly enacted and secured by state power as it is, even when it is unjust and fails to benet the people, unless its conict with justice reaches so intolerable
34 In G. Radbruch, Der Mensch im Recht, supra n. 2, at 88104, 104; G. Radbruch,

Rechtsphilosophie, supra n. 2, at 168173.

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a level that the statute becomes, in effect, incorrect law (unrichtiges Recht) and must therefore yield to justice. It is impossible to draw a sharper line between cases of statutory injustice and statutes that are valid despite their aws. One line of distinction, however, can be drawn with utmost clarity: Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely false law (unrichtiges Recht), it lacks completely the very nature of law. For law, including positive law, cannot be otherwise dened than as a system and an institution whose very meaning is to serve justice.35

These lines contain a number of peculiarities. Firstly, the priority of legal certainty is formulated in a special manner, as Radbruch equates the tension between legal certainty and justice to the tension between a contestable, but positive statute and the demand of justice. This is remarkable, since legal certainty is a moral notion, which cannot be equated with the existence of positive law. Legal certainty indicates an attitude to statutes, namely to respect and to obey it, but is not identical to statutes and positive law itself.36 Next is the difculty that the quote itself appears to contain two formulas rather than one. The literature speaks about the formula of intolerability and that of betrayal.37 In the jurisprudence of the German Constitutional Court, as well as in that of the German High Court, the second element does not play a role. It is argued that the element of denial concerns something that can hardly be proven, namely the intentional lack in the legislator to realize equality as the core element of justice. Moreover, so it is said, the kind of equality, which Radbruch considers to be the core of law, is not that of an absolute or material equality, but that of proportional equality: people are to be treated equally in so far as they are equal, but unequally in so far as they are unequal.38 Here, of course, everything turns on the criterion used to distinguish the cases that are regarded as equals from the ones that are regarded as unequal. Such formal equality would not entail, for instance, equal human rights. Therefore, the aspect of betrayal is said not to be essential for determining statutory injustice, but only intolerability. Radbruch himself, however, does not seem to realize this tension in his formula. Moreover, in
35 G. Radbruch, Gesetzliches Unrecht und bergesetzliches Recht, supra n. 2, at 119.

A parallel phrasing in: G. Radbruch, Vorschule der Rechtsphilosophie (the publication of Radbruchs 1947 lectures), Gttingen 1965, 3233, 113. 36 Radbruch distinguishes three meanings of legal certainty in: Der Zweck des Recht, Vortrag auf dem kongress des Internationalen Instituts fr Rechtsphilosophie in Rom am 1. April 1937, reprinted in G. Radbruch, Gesamtausgabe, A. Kauffmann, ed. Vol. 3 (Heidelberg, 1990), 3950. 37 H. Dreier, Gustav Radbruch und die Mauerschtzen, Juristen Zeitung 52 (1997), 423; R. Dreier, Gesetzliches Unrecht im SED-Staat? Am Beispiel des DDRGrenzgesetzes, Strafgerechtigkeit (F.S. Kaufmann), Hrsg. F. Haft et al. (Heidelberg, 1993), 57 et seq. 38 Radbruch follows Aristotle in: Der Zweck des Rechts, supra n. 36.

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the passage immediately following the quoted passage, Radbruch speaks of the standard and clearly considers what he wrote before to be something singular. He then seems to apply the above quoted passage in what appears to me as a kind of reverse order. First, he turns to the aspect of the betrayal in Nazi law and second to the aspect of intolerability. At least that is how I understand Radbruch, when he writes that Hitler and Nazism suffered from an absence of any sense of truth and justice. This feature of Hitler and his followers was apparent from the start. Equality did not matter for them. They applauded one murder, starting with that of communist Pietzruch at Potempa39 through that of the martyrs on July 20th 1944, and mourned over the murders of others. According to Radbruch, Nazism denied, from the start, the essential characteristic of legal certainty, which is treating equal cases equally. Consequently (infolgedessen in Radbruchs terminology) large parts of national-socialist law lack the quality of law. In particular, Radbruch denies the legal quality of the following elements: the provisions with which the national-socialist party claimed for itself the totality of the state, the laws on which the inhuman treatment of certain categories of human beings was based, and the violations of the principle of proportionality in sentencing criminals, which led to the death penalty even for minor offences. Without even mentioning the element of intolerability, Radbruch seems to argue that all these regulations were clear examples of statutory injustice.40 At this point, a pressing question arises: how is it possible that Radbruch did not pay attention to the distinctiveness of the two elements in his formula so obvious for his readers? Why is he not aware that he seems to introduce a criterion of equality that is not formal, but rather material?41 Radbruch does not answer these questions, but turns to the other aspect of his formula, that of the intolerability in order to solve the cases mentioned
39 On August 9, 1932, members of the SA murdered this communist at Potempa, Silesia. Hitler had not acquired governmental power and still hesitated whether he should seize power by force or by legal means. Because of his loyalty to the SA, he fulminated against the fact that these SA-murderers were sentenced to death. In a telegram, he promised to ght for their case. After that telegram, the death sentence was converted to life imprisonment. After Hitler took over political power, these murderers were released. See, for example, A. Bullock, Hitler: A study in Tyranny (London: Odhams, 1952), G. Radbruch, Rechtsphilosophie (Studienausgabe) S.L. Paulson and R. Dreier, ed., 197. It is worth noticing that Radbruch declares his aversion of what happened after the Potempa-murder here for the second time. Already in 1933(!), Radbruch criticized the case, almost in the same wording (in both cases he mentions Alfred Rosenbergs article in the Nazi newspaper Vlkischer Beobachter), in: Autoritres oder soziales Strafrecht, in G. Radbruch, Der Mensch im Recht, supra n. 2, at 75. 40 G. Radbruch, Gesetzliches Unrecht und bergesetzliches Recht, supra n. 2, at 120. 41 Perhaps Radbruchs formal equality is less formal than often supposed, see also: R. Dworkin, Laws Empire (Oxford, 1998), 185.

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earlier on. Before turning to these cases in detail, Radbruch supports the general recommendation that action can be taken against statutory injustice during the Nazi-regime only with great caution. After this period of legal uncertainty,42 Radbruch argues, one has to safeguard legal certainty as much as possible, as an essential legal value. Therefore, it should not be up to every single judge to invalidate statutes by referring to justice. This should be the prerogative of highest courts or the legislator. When Radbruch then proceeds to the mentioned cases, the following immediately strikes the reader. While originally four questions were brought under discussion (namely Puttfarken, punishability of judges, the executioners and the deserter), Radbruch only discusses three issues: the deserter, Puttfarken and the executioners. The issue of punishability of judges is now integrated into the Puttfarken case. First, Radbruch discusses the deserters case: the issue of whether he is punishable for killing a civil servant, can be solved as follows. In the meantime, the (functioning) legislator who Radbruch holds to be competent to determine statutory injustice, has stipulated that resistance against the Nazi regime is excusable, based on the Gesetz zur Wiedergutmachung nationalsozialistischen Unrechts in der Strafrechtspege, which states in its 1 that resistance against the Nazi regime is not punishable.43 This means that the deserter cannot be punished. The Gesetz zur Ahndung nationalsozialistischer Straftaten44 is relevant for the three other cases and implies that the acts under consideration can be persecuted only if the criminal liability of those acts already existed at the time they were committed on the basis of the German Empires Criminal Code of 1871. Therefore, no legal problem exists concerning the executioners. One does not have to approve of the morality of their acts in order to come to the conclusion that they are not punishable.
42 G. Radbruch, Gesetzliches Unrecht und bergesetzliches Recht, supra n. 2, at 120, 124; Fnf Minuten Rechtsphilosophie, supra n. 13, at 335. 43 Radbruch does not mention the precise legal phrasing, nor does he discuss the issue of retroactivity and the validity of law. This seems to contradict his earlier plea for legal certainty. Specically, he does not address the connection between to statute nr. 10 of the allied control council, which gured in the before mentioned jurisprudence, while the relation of the statute to the principle of nulla poena sine lege was indeed under discussion, see M. Stolleis, Rechtsordnung und Justizpolitik 19451949, in M. Stolleis, Recht im Unrecht, Studien zur Rechtsgeschichte des Nationalsozialismus (Frankfurt am Main 1994), 272. This leads one to suspect that Radbruch did not mean to address the problem of retroactivity of criminal law in his article. His article was perceived this way by Hart, Positivism and the Separation of Law and Morals, Harvard Law Review 71 (195758), 616620; and L. Fuller, The Problem of the Grudge Informer, in L. Fuller, The Morality of Law (New Haven and London, 1964), 245253. 44 Both laws can be found in the notes in G. Radbruch, Rechtsphilosophie (Studienausgabe ed. S.L. Paulson, R. Dreier), 288291.

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The executioners could rightly call upon the fact that they only carried out what they were instructed to do. With that, only Puttfarken remains as a case of signicance. Since, with the Puttfarken case, the legal question is raised concerning the criminal accountability of the judges who decided the Gttig case, we have to pay special attention to this case and I will follow Radbruchs lead in examining the legal proceedings throughout this case quite closely. In his earlier presentation of the case, Radbruch quotes the prosecutor who argued that there were two possible legal constructions applicable to Puttfarken. He could either be convicted as an indirect perpetrator or as an accomplice to murder (mittelbare Tterschaft or Beihilfe). The courts choice for either of these possibilities has signicant consequences for the judges in the Gttig case. After all, in the case of convicting Puttfarken as an indirect perpetrator,45 one would have to consider the Gttig judges as unaccountable instruments in the hand of Puttfarken acting without using their autonomous wills.46 Similar to when a criminal abuses a dog or an insane person for his criminal purposes, a court can be used as an instrument of criminal intent; at least, so it appears. Obviously, the founders of the indirect perpetrator doctrine had not thought of such an interpretation, but why could it not be included? In this interpretation, the judges would not be more responsible for what happened to Gttig than an attacking dog. However, if one decided, with the jury court in the actual case, to convict Puttfarken as an accomplice to murder, the Gttig judges inevitable should be regarded as guilty of murder too. When discussing the Puttfarken case, Radbruch seems to resist this actual outcome. He seems not to be very satised that former judges could now be prosecuted for inhumane convictions during the Nazi regime. At least so it seems, since Radbruch writes that it was Puttfarkens aim to get Gttig sentenced to death and that he used the judges as an instrument to this goal. Of course, one asks: how can Radbruch be so certain here? Has he been able to examine Puttfarkens criminal intent? Surprisingly, the answer does not lie with Puttfarken, but with the Gttig judges. Radbruchs reasoning here is at the same time complex and surprisingly simple. To convict Puttfarken as an accomplice would imply that the judges in this case were guilty of murder. This would then, as we saw, presuppose that
45 See for the doctrine Die mittelbare Tterschaft, for example, H.-H. Jeschek and T. Weigend, Lehrbuch des Strafrechts. Allgemeiner Teil, 5th ed. (Berlin, 1992), 662 et seq. 46 In the actual Bamberg case Hart refers to in The Concept of Law, supra n. 5, at 208, the same reasoning can be found, despite Harts wrong presentation of what the court said. See also H. Hofmann, Einfhrung in die Rechts- und Staatsphilosophie (Darmstadt, 2000), 110118.

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the judges on their side would have bent the law (Rechtsbeugung). This, however, is not an option, since they were trained as positivists, aiming at applying the law only. Since these judges were not allowed to review statutes by referring to some moral, suprastatutory criterion, they could only have bent or violated the law by not applying or obeying it, but not by applying or obeying it. As long as judges respected established law, however horric it may have been, they cannot be held criminally responsible for their decisions. It is not Puttfarkens psychological state that is decisive here, but positivism. Here we have the curious consequence of Radbruchs charges against positivism: because the judges during the Nazi regime only knew positive law, positivism did not only make them defenseless against statutory injustice, but also absolved them, retrospectively, from all responsibility for applying it.47 Because of positivism, the judiciary was an instrument in the hands of the Nazi regime, and of people like Puttfarken. With this reasoning, the responsibility for legal criminality and criminal legality is laid with the legislator and with the doctrine of positivism, and with individuals like Puttfarken, but not with institutions like the judiciary or its personnel.

R ADBRUCH S H ERITAGE If we try to evaluate Radbruchs inuential article, this can no longer boil down to the conclusion, sometimes made in legal philosophy textbooks, that Radbruch brought an end to an evil positivist theory by reintroducing natural law, human rights and the like.48 Radbruchs heritage is ambivalent: it formulates an empirical thesis on the legal views judges held during the Nazi era, which is questionable. Radbruchs primary concern does not seem to be with justifying retroactive criminal law, or with rendering invalid some laws, which were once valid, as Hart suggests. He is concerned with the difcult position of the judiciary after the demise of Nazi rule, a concern wholly overseen by Hart.49 He wants to give an answer to the question as to what should be done with those in the judiciary who applied without much hesitation the most horric legal regulations. As we saw, Radbruchs position is astonishingly mild and modest here.
47 Similarly . . ., mag auch dem Richter, eben wegen seiner positivistischen Recht-

serziehung, solches Unrecht nicht zur persnlichen Schuld angerechnet werden, in G. Radbruch, Die Erneuerung des Rechts, in W. Maihofer, Hrsg., Naturrecht oder Rechtspositivismus, supra n. 3 (originally in Die Wandlung, 1947). 48 For example, R. Wachs, Jurisprudence, 5th ed. (Blackstone, 1999), 109. 49 T. Mertens, Radbruch and Hart on the Grudge Informer. A Reconsideration, supra n. 1.

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The true culprit is positivism, for which these judges were not responsible. That mentality should forever belong to the past and legal education should be thoroughly revised by paying attention to natural law, human rights and comparative law.50 Unsurprisingly, Radbruchs thesis that positivism was to blame for the criminal legality and its practices during the Nazi-years and that the judiciary was, in a sense, victim of perverse Nazilegislation, was widely accepted for a long time. Bernd Rtherss 1968 book, Die unbegrenzte Auslegung. Zum Wandel der Privatsrechtsordnung im Nationalsozialismus was the start in bringing this myth to an end. This publication paved the way to a much more historically sound consideration of the role of law and the judiciary in the Nazi era. From then on, many studies with often quite disconcerting conclusions have been published.51 Perhaps these facts were too difcult to be faced immediately after Germanys defeat.52 Still, it remains an open question why a person of such moral stature as Radbruch came up with this explanation. As mentioned, Radbruch might have been deeply unsatised with his own view, according to which judges should in all cases apply and obey the law, even if it would run contrary to their own sense of justice.53 However, this suggestion is not very satisfactory either. During the Nazi era, the judiciary was eager to put positive statutes aside in order to reach the then politically correct conclusions. One would wish that the judiciary had resisted political power and, indeed, had obeyed the law.54 In any case, legal positivism does not deserve the bad reputation it has been given because of Radbruchs accusations. Over the years, the importance of Radbruchs formula has been conrmed by a number of judgments of both the German Constitutional Court and the German High Court, concerning cases that were directly related to the national-socialist era. Recently, after German reunication, there was a renaissance of Radbruchs formula in German case law due to the criminal proceedings against representatives of the former GDR. For example, soldiers that guarded the border and their superiors were put to trial for shooting GDR civilians who wanted to ee to the FRG by climbing
50 See Erneuerung des Rechts, in G. Radbruch, Der Mensch im Recht, supra n. 2,

at 107110 (originally as a lecture at the reopening of the Law Faculty in Heidelberg in 1946). 51 See, for instance, I. Mller, Furchtbare Juristen, Die unbewltigte Vergangenheit unserer Justiz (Mnchen, 1989). 52 In this respect, Germany is of course not unique. 53 G. Radbruch, Rechtsphilosophie (Studienausgabe), supra n. 2, at par. 10, 85. 54 See also M. Kriele, Recht und praktische Vernunft (Gttingen, 1979), 123. One should realize that the principle of nulla poena in the German Criminal Code was violated frequently in legal practice, but not formally abolished.

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over the Berlin wall or swimming across the river Spree. In September 1996, the Landgericht in Berlin sentenced some generals of the former border patrol to imprisonment for their responsibility. On this occasion, the president of the criminal trial chamber in question declared that the core issue of the process was the applicability of Radbruchs formula, since the accused held that the shooting was justied by law: to be precise, by GDR border law Par. 27 and the corresponding instructions of the National Security Council. These alleged justications of the shootings have been rejected by the German courts and recently by the European Court of Human Rights. In the centre of legal reasoning in these often very long judgments stands the judges conviction that such provisions do not deserve the status of law, merely because of their being written down in some statute. In Radbruchs terminology, these judges regarded such legal provisions as statutory injustice, because of their intolerable conict with justice.55 In the commentary on these judgments, it has been argued that the decision indeed in the end depended on Radbruchs formula. This does not imply general agreement. H. Dreier, for example, considers this motivation for convicting the wall shooters insufcient.56 He argues that it conicts with the absolute ban on retroactive criminal law in FRG law. He also argues, not unlike Radbruchs recommendation, that the legislator should take the lead in cases like that of judging acts committed in past regimes. Another important objection to the use of Radbruchs formula for deciding such cases is motivated by the profound doubt as to whether ordinary criminal law, which is meant to deal with ordinary crime, can be applied to so-called statutory criminality. Some say that these two situations are so different that they ask for different solutions. In ordinary criminal law, compliance with the rule is presupposed and the violation of the rule is the exception that has to be corrected. Situations of legal criminality are very different, as it is difcult to determine what is the rule and what the exception. If one aims at redressing striking criminal acts of past regimes, one runs the risk of attributing to some individuals more criminal responsibilities than to others. It can hardly be defended that the evil character of the GDRs regime resides solely or primarily in the way it kept its borders closed, as little as that Puttfarken would exem55 See, for example, R. Alexy, Mauerschtzen. Zum Verhltnis von Recht, Moral und Strafbarkeit (Hamburg, 1993); J. Lensing and T. Mertens, Wettelijk onrecht in de voormalige DDR. Radbruch en de bestrafng van voormalige DDR-functionarissen, Rechtsgeleerd Magazijn Themis 159/6 (1998), 163176. Ironically, of course, Radbruch used his formula to exonerate the Nazi judges, while these courts used the formula for convicting these guards and their superiors. 56 H. Dreier, Gustav Radbruch und die Mauerschtzen, Juristen Zeitung 52 (1997), 421434.

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plify Nazi evil. Despite its apparent aws, still much can be learned from Radbruchs little essay in this respect. The problem of statutory injustice resides in the way a society and its ofcials accept evil law. Ascribing criminal responsibility to some, and overlooking the acts of most others (the bystanders) does however, not solve this problem.57 In their mostly tacit consent resides the true evil of such a regime.58 Faculty of Law University of Nijmegen 6500 KU Nijmegen The Netherlands E-mail: T.Mertens@jur.kun.nl

57 Following R. Hilberg, Perpetrators, Victims, Bystanders. The Jewish Catastrophe

19331945 (New York, 1992). 58 See, for instance, H. Arendt, Eichmann in Jerusalem, A Report on the Banality of Evil (Penguin, 1963, 1992), 116.