Radbruch's Formula and Conceptual Analysis

American Journal of Jurisprudence, Vol. 56, pp. 45-57, 2011

Minnesota Legal Studies Research Paper No. 12-13

14 Pages Posted: 8 Mar 2012 Last revised: 29 Mar 2012

See all articles by Brian Bix

Brian Bix

University of Minnesota Law School

Date Written: 2011

Abstract

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.

Keywords: Gustav Radbruch, Radbruch's Formula, Robert Alexy, Conceptual Analysis

Suggested Citation

Bix, Brian, Radbruch's Formula and Conceptual Analysis (2011). American Journal of Jurisprudence, Vol. 56, pp. 45-57, 2011; Minnesota Legal Studies Research Paper No. 12-13. Available at SSRN: https://ssrn.com/abstract=2017942

Brian Bix (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-2505 (Phone)
612-625-2011 (Fax)

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