The Law-Morality Conundrum: On the Multifaceted Sources of Normativity
Rechtstheorie, Vol. 44, No. 1, 2013, pp. 1-28, Duncker & Humblot
28 Pages Posted: 10 Dec 2014 Last revised: 16 Dec 2014
Date Written: December 9, 2014
The paper addresses the substance of what is known as Radbruch’s formula: even though in plain cases law can contradict some principles of morality, if the law is extremely unjust it should not be applied/it cannot be considered as law at all. The paper analyses it from the perspective of the addressees of this formula.
My hypothesis is that the instances of manifest injustice cannot be explained without analyzing the issue of individual will, which so far has not received sufficient attention in legal philosophy. This implies that, unlike most of the literature on Radbruch’s formula, this paper takes the bottom-up and not the top-down approach, being primarily concerned with the addressees rather than the addressors of the formula. I will put forward then the concept of individual autonomy, which should ultimately mitigate the prima facie doctrinalism of exclusive legal positivism without destroying its core premises.
Keywords: Exclusive legal positivism, Radbruch formula, Individual autonomy, The nature of rights
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