Robert Alexy's Radbruch Formula, and the Nature of Legal Theory
University of Minnesota Law School
Rechtstheorie, Vol. 37, pp. 139-149, 2006
Minnesota Legal Studies Research Paper 06-13
Gustav Radbruch is well known for a formula that addresses the conflict of positive law and justice, a formula discussed in the context of the consideration of Nazi laws by the courts in the post-War German Federal Republic, and East German laws in the post-unification German courts. More recently, Robert Alexy has defended a version of Radbruch's formula, offering arguments for it that are different from and more sophisticated than those that were adduced by Radbruch himself. Alexy also placed Radbruch's formula within a larger context of conceptual analysis and theories about the nature of law. Both Radbruch and Alexy claim that their positions are incompatible with legal positivism, and therefore count as a rejection (and perhaps, refutation) of it.
This paper, presented at a Conference on the work of Gustav Radbruch, looks at Radbruch's formula and Alexy's version of it. It focuses not so much on the merit of the Radbruch-Alexy formula, as on its proper characterization, and its appropriate placement within the larger context of legal philosophy. The particular focus is the methodological question of what Radbruch and Alexy's formulations - and their strengths and weaknesses - can show us about the nature of theorizing about law.
Number of Pages in PDF File: 11
Keywords: Robert Alexy, Gustav Radbruch, legal positivism, natural law theory, nature of law, conceptual theories, unjust lawsAccepted Paper Series
Date posted: March 23, 2006
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