On the Background and Significance of Gustav Radbruch's Post-War Papers

Abstract

In a lively and informative introduction to Hermann Kantorowicz’s posthumously published little book, The Definition of Law (1958),1 A.L. Goodhart speculated that Kantorowicz’s polemical tract of 1906 in defence of the ‘free law movement’, The Struggle over Legal Science,2 had ‘probably been cited more frequently than any other legal essay published during the present century’.3 Were Goodhart writing today, passing review on the whole of the century, one wonders what his reckoning would be. H.L.A. Hart’s paper, ‘Positivism and the Separation of Law and Morals’,4 comes to mind. So does Ronald Dworkin’s early paper, ‘The Model of Rules’.5 The real competition, I think, would stem from Gustav Radbruch’s essay of 1946, ‘Statutory Lawlessness and Supra-Statutory Law’.6 Indeed, in light of the case law and the vast literature stemming from it, Radbruch’s article would certainly be reckoned the winner in this competition. Radbruch introduced in the article a formula that has played a significant role in adjudication in the Federal Republic of Germany—first on the status of various Nazi laws, and then, in the 1990s, on the status of a provision in the East German Border Law.7 These issues, particularly the latter, have been discussed repeatedly and at length in German publications.8