Radbruch’s Formula Revisited: The ‘Lex Injusta Non Est Lex’ Maxim In Constitutional Democracies
Canadian Journal of Law and Jurisprudence (2021, forthcoming)
Posted: 23 Nov 2020 Last revised: 22 Feb 2021
Date Written: November 23, 2020
According to German legal philosopher Gustav Radbruch, laws that are substantively unjust to an intolerable degree should not be regarded as legally valid, even if they were promulgated according to stipulated procedures. Radbruch’s Formula (as his position has been termed) contradicts the central tenet of legal positivism, according to which the existence of laws does not necessarily depend on their merit. While some legal positivists suppose that legal invalidity based on the content of particular laws is a central tenet of natural law theory, natural law theorists such as John Finnis opine that the maxim lex injusta non est lex has been no more than a subordinate theorem of classical natural law theory. In Finnis’s view, unjust laws give rise to legal obligation ‘in a legal sense’. This article argues that Radbruch's Formula that connects legal validity with moral validity sits neatly within natural law theory, all aspects of legal obligation and different types of moral obligations considered. It is relevant beyond transitional and postwar situations and applies also in constitutional democracies. The discernment of intolerable injustice by reference to broad historical consensus, as has been proposed by Alexy, is conceptually sound and prudent, even though natural law theory is founded on objective morality. It is also not contrary to the idea of subsidiarity, another doctrine favored by natural law theorists.
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