Radbruch’s Formula, Conceptual Analysis, and the Rule of Law

Abstract

In most legal systems, courts frequently apply (and see themselves as bound to apply) norms that are not valid within their legal system, and the courts also on occasion do not apply (and see themselves as bound not to apply) otherwise applicable norms that are valid norms within their legal system. Judges’ roles include the resolution of disputes where the ruling norms come from outside the home legal system (or, from any legal system), and the courts may also have responsibilities to develop the law and to avoid unjust or absurd applications of otherwise valid norms. This paper argues that it would thus be more charitable to read the Radbruch Formula as a prescription for judicial decision-making rather than as a descriptive, conceptual or analytical claim about the nature of law. The suggested change will not affect the place of the Radbruch Formula within debates about the rule of law or the role of courts. The issue remains the same: whether it is consistent with the rule of law not to apply norms otherwise legally valid because they are extremely unjust. Radbruch argued that this is consistent with the general understanding of law and the expectations for law. Other commentators have been concerned that Radbruch’s approach undermines the rule of law by giving significant and unpredictable discretion to judges to refuse to apply otherwise valid norms.