Radbruch's Formula and Conceptual Analysis
![handle is hein.journals/ajj56 and id is 47 raw text is: RADBRUCH'S FORMULA AND CONCEPTUAL ANALYSIS
BRIAN H. BIx*
Gustav Radbruch (1878-1949) was a prominent German legal theorist,
who, in the aftermath of World War II, famously argued that a sufficiently
unjust rule loses its status as a valid legal norm. This article will consider
whether Radbruch's post-war views, as encapsulated in his now-famous
Formula, are best understood as a conceptual claim about law, or rather as
(merely) a prescription for judicial decision-making.
Part I outlines Radbruch's Formula, while also giving some context
regarding Radbruch's general approach to legal theory, and how it changed
over time. Part II considers whether the Formula is more charitably
understood as a prescriptive theory of judicial decision-making rather than
as a conceptual claim about law.
I. RADBRUCH'S FORMULA(S)
Gustav Radbruch's most influential publications included Grundziige der
Rechtsphilosohie [Main Features of Legal Philosophy] (1914) and
Rechtsphilosophie [Legal Philosophy] (1932).' Those works reflect[] the
methodological dualism of the Heidelberg neo-Kantians, and contain[]
elements of relativism and legal positivism.,,2
The Second World War and the evil done during that period in his native
Germany, often under the rubric of law, deeply affected Radbruch. In
works written right after the war, Radbruch offered ideas about the
* An earlier version of portions of this paper will appear as Radbruch's Formula,
Conceptual Analysis and the Rule of Law, in Law, Liberty and the Rule of Law, ed. Imer B.
Flores & Kenneth E. Himma (Dordrecht: Springer, forthcoming, 2012). I am grateful for the
comments and suggestions of William A. Edmundson, Andrew Halpin, Matthew H. Kramer,
and Stanley L. Paulson.
1. Both are currently available (in German) in Gustav Radbruch, Gesamtausgabe Band
2: Rechtsphilosophie II, ed. Arthur Kaufmann (Heidelberg: C.F. Maller, 1993), the second
volume of Radbruch's collected works; Rechtsphilosophie is also available in an English
translation. Legal Philosophy, in The Legal Philosophies of Lask, Radbruch, and Dabin,
ed. E. W. Patterson, trans. H. Wilk, (Cambridge, Mass.: Harvard University Press, 1950), 47-
224 (orig. German pub. 1932).
2. Stanley L. Paulson, Radbruch on Unjust Laws: Competing Earlier and Later
Views?, Oxford Journal of Legal Studies 15 (1995): 489.](ViewImageLocal?handle=hein.journals/ajj56&div=5&collection=&method=preview&ext=.png&size=3)
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