Radbruch's Formula and Conceptual Analysis
University of Minnesota Law School
American Journal of Jurisprudence, Vol. 56, pp. 45-57, 2011
Minnesota Legal Studies Research Paper No. 12-13
Gustav Radbruch, in well-known work that appeared just after World War II, put forward a formula that stated that state-promulgated rules that are sufficiently unjust lose their status as valid law. Radbruch’s Formula has generally been understood as a claim about the nature of law, and recent variations of Radbruch’s Formula, like Robert Alexy’s “claim to correctness,” have similarly been characterized as offering a truth about the nature of law. Additionally, both Radbruch’s and Alexy’s theories have been presented as criticisms of, and alternatives to, legal positivism. An alternative understanding of the Formula (and its modern variations) is as (mere) prescriptions for judicial decision-making, and thus compatible with a variety of different conceptual theories of the nature of law, including legal positivism. This article shows the difficulties of understanding Radbruch’s Formula as it was presented and conventionally understood. In particular, the article focuses on the way that seeing the Formula as a claim about the nature of law leads to outcomes inconsistent with the basic reasons for the Formula.
Number of Pages in PDF File: 14
Keywords: Gustav Radbruch, Radbruch's Formula, Robert Alexy, Conceptual AnalysisAccepted Paper Series
Date posted: March 8, 2012 ; Last revised: March 29, 2012
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