Gustav Radbruch Research Articles

MENAKAR RASA KEADILAN PADA PUTUSAN HAKIM PERDATA TERHADAP PIHAK KETIGA YANG BUKAN PIHAK BERDASARKAN PERSPEKTIF NEGARA HUKUM PANCASILA

Law is a set of words that are systematically linking an authoritative text, according to Gustav Radbruch, it should contain three (3) elements, namely fairness, certainty and expediency. The application of the authoritative text in social life was an absolute authority of a judge in resolving a civil case. The judge, in the checking-hearing-deciding a case, not only expected to return the case to the original state (restitutio in integrum) before the advent of the dispute, but should attempt made every effort to not create new disputes or disputes derived from the subject matter examined. Therefore, it becomes very important role of the paradigm for a judge in deciding the case in order to fulfill a sense of justice. Therefore, deciding the case in a precise sense of justice will be a judge most important role. Nowadays, the meaning of "justice" in Civil Procedure Code only limited to the authority of the power of the parties bound by the principle of consensualism and the principle of freedom of contract. Therefore, based on the Law Paradigm (Philosophy) of Pancasila, Judge as an interpreter, in defining and applying the law, legal science must have the ability to deconstruct and reconstruct an authoritative text based paradigm embraced by a nation.Keywords: the principle of consensualism, justice, pancasila, paradigm, civil procedural law

Accommodating Nazi Tyranny? The Wrong Turn of the Social Democratic Legal Philosopher Gustav Radbruch After the War

What is the relationship between Nazism and natural law—the notion of universal standards, which arise from either God, revelation, nature, rationality, or morality, and which human-made statutes cannot break? In 1946, in the wake of World War II, Gustav Radbruch, one of Germany's most respected Social Democrats and legal philosophers, published his influential article, “Statutory Injustice and Suprastatutory Law,” which grappled with a pressing issue of postwar justice. Should courts deem judges criminally responsible for having earlier convicted defendants, and often sentenced them to death, based on denunciations by family, neighbors, or rivals, denunciations that the Nazi regime had encouraged but that a fair-minded government must condemn? As a matter of jurisprudence, Radbruch set forth his famous formula, which declared that judges must adhere to positive or statutory law, except in rare circumstances in which such law violated fundamental principles of justice. In his words, “[P]ositive law, secured through legislation and power, prevails, even if it is substantively unjust and inexpedient, unless the tension between positive law and justice reaches such an intolerable level that the law as ‘false law’ must yield to justice.” As a matter of history, Radbruch excused Nazi-era judges who had missed his jurisprudential point, because they had succumbed to the legal theory of positivism that had long permeated German legal thinking. “Positivism,” Radbruch wrote, “with its belief that ‘law is law’ rendered the German judiciary defenseless against arbitrary and criminal laws.”

A hermenêutica jurídica de Gustav Radbruch

This article intends to identify the premises of the hermeneutical treatment of the science of law as proposed by the most important German legal philosopher of the 20th century, Gustav Radbruch. The relevance of the clarification of these premises involves two levels. First, from the historical standpoint, understanding the juridical hermeneutics proposed by Radbruch enables a broader comprehension of the Freirechtsschule. It is claimed here that this school was crucial to the later law theory because of its critique of the traditional methods of juridical interpretation, thus enabling the emergence of the three most important streams of 20th century law theory: objectivism, subjectivism and normativism. Second, from a philosophical perspective, the study of Radbruch’s hermeneutics enables the comprehension of how the treatment of juridical knowledge as a cultural phenomenon is possible, without defending at the same time the complete abandonment of its scientific character. The juridical hermeneutics proposed by Radbruch has the virtue of conducting a productive dialogue with the study of legal dogmatics as the modern form of law science, which is an even harder task, as the adepts of philosophical hermeneutics tend to agree. Radbruch’s main theses on the phenomenon of interpretation in law are: (a) juridical interpretation consists in the mediation of the objective meaning of a legal system; (b) mediation means the scientific treatment of law as an essence of positive and general norms for social life; (c) the objective meaning is not determined by the legislator’s intention; (d) the objective meaning presupposes the construction of a whole as a juridical institute or legal system; (e) the construction of a juridical institute or legal system is realized by means of the true juridical concepts of the categorical and teleological type; and (f) law as a whole ultimately depends of a decision made by the one who applies the law for one of the potential objective ends.Keywords: Radbruch, legal hermeneutics, free law movement, Neo-Kantianism, interpretation.

Philosophy of Law and International Criminal Law: Between Peace and Morality

The legal philosophy of the 20th century has contributed to the development of international criminal law by rethinking fundamental legal concepts and theories concerning the nature of international law, its relation with national laws, the connection between the law and the State, and the very idea of responsibility. This was achieved, in the first place, through the reflection of Hans Kelsen, who put forward the idea of a system of enforceable criminal norms at the international level, directed at individuals and having a positive legal foundation. In the years immediately following the Second World War, a number of legal theorists and, in particular, Gustav Radbruch, argued in favour of a necessary connection between law and morality, on whose basis it could be claimed that the worst atrocities were punishable even when allowed by state norms, and even in the absence of positive international norms. In the last decade, the practice of international criminal law, through ad hoc tribunals and the International Criminal Court, has stimulated theoretical reflections on a variety of further fundamental issues, like impartiality, judicial truth, justification of punishment, side-effects of prosecution and transitional justice.

Law as Fact and as Reason for Action: A Response to Robert Alexy on Law's "Ideal Dimension"

Robert Alexy's 2013 Natural Law Lecture, published in vol. 58 of this journal, presents law as having two dimensions, ideal and real, and thus a dual nature, to be elucidated by a conceptual analysis distinguishing between the observer's and the participant's perspective. It argues on this basis for a non-positivist theory of law that is in that it classifies some unjust laws as laws, but not all (and is thus not super-inclusive); it rejects the exclusive that would treat every injustice in a law's making or content as excluding it from the class of valid laws. Gustav Radbruch's famous post-War formula-extreme injustice invalidates lawadopted in the jurisprudence of Germany's higher courts, is thus to be defended as expressing the inclusive non-positivism that articulates the best concept of law that can be constructed and defended as expedient. Alexy's 2013 article classifies the theory in Natural Law and Natural Rights as super-inclusive, but sees hopeful signs of inclusive non-positivism in some recent writings of its author. The present article argues that Natural Law and Natural Rights defends, in a sense, all three non-positivist positions, each in its proper place as a truth about unjust law: it is (from an observer's perspective) a fact; it is (from a participant's perspective) deprived by any significant injustice of law's generic and presumptive status (legal-moral validity) as a reason for action; and it is (from the perspective of particular participants in their circumstances) sometimes, despite its injustice and legal-moral invalidity, a source (by virtue of both the foregoing truths taken with other moral responsibilities and needs) of collateral obligations the extent of which is likely, often, to track, approximately, the results of applying the Radbruch formula. The article argues against Alexy's theoretical procedures both of conceptual analysis and of concept construction, regrets the non-positivist/positivist labeling, raises doubts about speaking of duality of dimensions and nature, and notes the significance of the 2013 article's further thesis that any injustice in a law impairs (qualifies) its legal status.

Problematyka aksjologiczna jako uwarunkowanie procesów prawodawstwa gospodarczego oraz jego limitacji. Zagadnienia filozoficzno-prawne

The dissertation substantiates the possibility of applying the idea of law as a tool for defining the limits of legal interference in an economic system. Adopting the concept of law based on the Economical Analysis of Law it advocates the belief that the implementation of the idea of law consisting of three values – advisability, justice and legal safety – is the most optimal and effective instrument in determining the limits of legal regulations with regard to a liberal market economy. One can conclude then, that the idea of law can very well be described as a general cultural axiological system, especially with regard to the economic and legal culture. It is a system of values that determines the processes of internalization and institutionalization of norms and above all legal and moral ones. The law is a factor that determines and organizes the social life and it determines for the same reason the art and limits of economic activities. It cannot therefore be enacted in isolation from economic and axiological questions. As Gustav Radbruch observes, the law, as well positive as the natural law is a cultural phenomenon and can be looked into only in connection with values and always with reference to them. The positive law must embody and implement the idea of law. And although it is indisputable that no ideal legal or economic system can be completely fulfilled, the striving toward those ideals is an obligation for any society. Resigning and giving up the ideal does not simply mean the preservation of the status quo, but it results in regression and in repeating of former dysfunctions and/or other negative solutions.

The Role of the Jurist: Reflections around Radbruch

AbstractMany different kinds of professionals work with law, but often they seek to use law for particular governmental or private purposes, they focus on some specific areas or aspects of its creation, interpretation or application, or they study it for its interest judged by criteria that are given by fields of scholarly practice outside it. Is there a special significance for a role exclusively concerned with analysing, protecting and enhancing the general well‐being or worth of law as a practical idea? This article argues that such a role is important. Building on Gustav Radbruch's juristic thought, it asks how that role could be elaborated and how a professional responsibility for discharging it might be envisaged. Many professionals concerned with law adopt such a role incidentally or intermittently, but it needs more prominence and clear demarcation. The article suggests that it might be seen as the specialised role of the jurist, treated as a particular kind of legal professional. The term “jurist” would then have not just an honorific connotation. It would indicate a Weberian “pure” type that may approximate some current understandings of “juristic” practice; but it would also identify a normative ideal—something intrinsically valuable. Seen in this way, the jurist is one who assumes a certain unique responsibility for law.

CINCO MINUTOS DE POSITIVISMO JURÍDICO

On semptember 12,1945, after twelve years of the national-socialist regime and six yearsof another world war, Gustav Radbruch, one of the most notable jurists and legal philosophers inGermany, circulated among the students of Heidelberg Law School his notorioustext “Fiveminutes of Legal Philosophy”. This concise and emphatic work, in sum, attributesto legalpositivism the responsibilities foracts of savagery and arbitrariness committed, under theprotection of law, by the nazi. The following paper intendsnot only to refuteRadbruch’scriticismof positivism – demystifying and deconstructing most of the confusions andmisunderstandings built from the wrong conclusions of this legal philosopher – but also, in thecourse of this workto offer some perspectives on the concept of legal positivism.

RADBRUHOVO JUSNATURALISTIČKO PREVLADAVANJE PRAVNOG POZITIVIZMA

Nemačka pravna misao dala je u XX veku pravna imena svetskog ugleda. Bili suto Emil Lask, Hans Kelzen, Maks Veber, Karl Šmit, Niklas Luman, Artur Kaufman, ErnstEduard Hirsch i drugi. Svi oni ostavili su značajan trag u teoriji, sociologiji i filozofiji prava.I svi su oni imali veoma osobene, za istoričare prava zanimljive, lične biografije i sudbine usvom profesionalnom i javnom životu. U toj je plejadi velikih pravnika (minulog stoleća) iGustav Radbruh (G. Radbruch, Libek, 1878 – Hajdelberg, 1949) koji je nakon teških lomovau pravničkom i društvenom životu Nemačke od dolaska nacista na vlast, napravio potpuniobrat u svojoj filozofiji prava kroz svoj čuveni pravno-filozofski spis: “Pet minuta filozofijeprava” (1945). Radbruh je zapravo potpuno doveo u pitanje rigidan pozitivistički princip da“i najpodlije pravo važi sve dok je na snazi“ pozivom na jusnaturalistički princip pravde u“nadzakonskim pravu“.

En torno a la doble naturaleza del Derecho de Robert Alexy

The central argument of Robert Alexy’s thesis is developed, concerning the dual nature of Law that includes a real or factual dimension, and another, ideal or critical. This thesis is inconsistent with both the exclusive legal positivism and the inclusive legal positivism, and with some thesis of non-positivism in its extreme version. The dual nature of law expresses and justifies by Gustav Radbruch´s formula which states that the “extreme injustice is not Law” on the one hand, andby the argument of moral correctness on the other. As a result of this analysis, the definition of the Law is something that depends on social facts in what the Law should be.

JUDICIAL REVIEW MAHKAMAH KONSTITUSI TENTANG STATUS ANAK DI LUAR NIKAH

This study focuses on adjudication of the judges of MK in which in the tradition of law research, it is called law propositions. It means that based on ideal scientific activities of law science, this study enables to cover several activities: inventories, interpreting, systemizing, and evaluating rules of law, both written and unwritten. According to Gustav Radbruch, of all four activities, interpreting and systemizing are more important.
 Idealization of such a scientific activity will just get the precision of its verification when it has been completed try an empirical research through deep interviews with the judges of MK. All this time, the writer’s has not conducted distillation or construed the law hidden behind the texts of law. This paper is the writer's initial observation or his preliminary research. Based on religious and law norm of the material of adjudication of judicial review of MK, this study is still normative. According to the writer, the characteristics of the adjudication of the judges of MK is a crucial point or a hard case because it deals with the sensitive areas covered several dimensions such as religion, human right, nationalistic politics. The writer argues that such a kind of crucial adjudication is not proper if the judges only rely on the procedures of formal law, but it needs an innovation or rule of breaking as a form of law innovation (rechtsvinding), indeed rechtsvinding plus. This is a farm of law construction, in which in the tradition of inference of Islamic law it is similar to logical reasoning “al-'illah al­ mustanbathah”: to reach beneficence in the context of state life.Keywords: Mashlahah, rechtsvinding, diyani, qadlai
 

Judiciary in the Third Reich

Each dictatorship attempts to maintain the appearance of legality. The coercion by which dictatorships retain in power is, as a rule, vested in a legal form. National socialism has also followed this pattern, having even the commands of Adolf Hitler formulated in an appearance of legality. By a Reichstag decision of April 26, 1942, Hitler was promoted to a supreme justice of the Reich. In the beginning of their rule, national socialists have tried to maintain the impression of a Rechtsstat, and consequently amended or changed the laws only when these prevented them from eliminating their opponents. The law had to be incorporated in the national socialist ideology and become the means to achieve the ultimate objective. The law was what is of use to the people, and it was the Leader who decided what was of use to the people. In 1946, Gustav Radbruch has denoted this period of German legislation as the time of 'legal non-law'. He contrasted this with the idea of 'supra-statutory law', thus giving absolute priority to human rights. Similar standards were used in the Nurnberg process when war criminals were tried for crimes against humanity. Judges were among the accused. .

Die Hart-Dworkin-Debatte als Grundlagenkontroverse der angloamerikanischen Rechtsphilosophie

2011 marks the 50th anniversary of the publication of H. L. A. Hart’s The Concept of Law - a milestone in the development of legal positivism. The book gained its broad influence particularly through the early critique by Ronald Dworkin. Five decades later the Hart-Dworkin debate still constitutes the discursive centre of Anglo-American legal philosophy. Multiple factors add to the persistent dynamic of the debate, including the multilayered critique of Dworkin himself, but also the broad and controversial reception of Dworkin’s theoretical counter-conceptions of law as a system of rules and principles and „law as interpretation“. Perhaps most importantly, in response to Dworkin the competing schools of inclusive and exclusive legal positivism emerged in simultaneous defense and modernization of the Hartian tradition. The relation of the Hart-Dworkin debate to German legal philosophy is marked by ambivalences. Although the philosophy of Gustav Radbruch played an important role in the formation phase of Hart’s theory, the discursive link weakened over the years, mainly due to the discourse-shifting influence of the substantial features of the German Grundgesetz of 1949.

Classic text revisited: Slavery and the Penal System

In Slavery and the Penal System Thorsten Sellin set out to prove Gustav Radbruch's 1938 thesis that the modern ‘criminal law bears the traits of its origin in slave punishments’ (cited at p. viii). Within a relatively short book Sellin charts the history of state punishment from Ancient Greece to mid-twentieth century America, a review that manages to take in the penal systems of the Roman Empire and the European Middle Ages, as well as the development of Galley Slavery, Houses of Correction, the Bagnes, penal colonies in Siberia and Australia, and the US convict lease system. It is a massively ambitious work highlighting continuities in punishment from antiquity to modernity that show how key characteristics of penal systems have remained unchanged from their origins in slave punishments.

Koncepcja sprawiedliwości Gustava Radbrucha

The author undertakes an attempt to present the philosophical and legal concepts comprising the legacy of a German theoretician of law, Gustav Radbruch, in respect of justice. The historical context for Radbruch is World War II, which forced German lawyers to face the question of the limits to which positive law is binding. Radbruch’s theory makes a breach in the legal positivism current of German legal reflection and thus belongs to what is known as the third way, setting out new prospects in the history of the philosophy of law. The thread described by the author is the manner in which Radbruch connects natural law with legal positivism, demonstrating that, within a legal reality, they may exist in parallel.

Radbruch's Formula and Conceptual Analysis

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 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.

Stefan Vogt . Nationaler Sozialismus und Soziale Demokratie: Die sozialdemokratische Junge Rechte 1918–1945 . (Politik‐ und Gesellschaftsgeschichte, number 70.) Bonn : J. H. W. Dietz . 2006 . Pp. 502. €48.00.

The Junge Rechte (Young Right) within the Social Democratic Party (SPD) of Weimar was a small circle of mostly younger socialists who were opposed to orthodox Marxism and the rhetoric of class struggle, more national-minded than the SPD as a whole, and open to a kind of authoritarianism normally associated with the political right. Stefan Vogt has written a detailed intellectual history of this group, whose roots reach far back into the prewar period. Though the group began to form as early as 1923, it is often associated with the Neue Blätter für den Sozialismus, published between January 1930 and June 1933. The circle of about thirty to fifty members included former SPD ministers such as Wilhelm Sollmann and Gustav Radbruch, prominent figures such as Hermann Heller and Paul Tillich, and younger socialists such as Carl Mierendorff, Theodor Haubach, and Gustav Dahrendorf. In five long, well-structured chapters Vogt analyzes the Junge Rechte's intellectual antecedents, development during the Weimar Republic, main ideological orientations, participation in Weimar's political struggles, and involvement in resistance against the Nazi regime. Vogt's thorough and comprehensive study is based on a vast array of archival sources, including files (often literary bequests) from well over a dozen archives, as well as an exhaustive selection of printed primary materials.

The Warning Voice from Heidelberg: Radbruch, Dugard and the Prosecution of State Injustice

This article explores the relationship between John Dugard and Gustav Radbruch. Drawing on the legal philosophy of Gustav Radbruch and John Dugard’s work on international criminal law the article addresses the complex question of whether retroactive punishment is legally and morally justifiable. The article discusses Dugard’s views on the question of retroactivity in three contexts: firstly, in his opinion on the legality of extraterritorial prosecution of torture in the Bouterse case; secondly, through his criticism of the Constitutional Court’s decision in Azapo; and thirdly, by his support for ius cogens norms as expressed in his separate opinion in the Congo v Rwanda decision. The article concludes that Dugard’s support for retroactive punishment in the specific context of serious international crimes is another example of his lifelong dedication to ‘higher law’ and his faith in the normative evolution of international law.

Meta-Ethics and Legal Theory: The Case of Gustav Radbruch

The received view among legal theorists has been that Gustav Radbruch’s post-war standpoint was that law and morality are conceptually connected, and that therefore laws that are intolerably unjust ...

Radbruch as an Affirmative Holist. On the Question of What Ought to Be Preserved of His Philosophy

Abstract. Gustav Radbruch is one of the most important German‐speaking philosophers of law of the twentieth century. This paper raises the question of how to classify Radbruch's theories in the international context of legal philosophy and philosophy in general. Radbruch's work was mainly influenced by the southwest German school of Neo‐Kantianism, represented by Windelband, Rickert, and Lask. Their theories of culture and value show an affirmative‐holistic understanding of philosophy as a source of wisdom and meaningfulness. Kant, on the other hand, belongs more to a fundamentally different, critical camp of philosophy. Although Radbruch has incorporated Kantian Elements into his theory, he is rather a member of the affirmative‐holistic camp. In the end the question will be raised as to what ought to be preserved of his philosophy.