Meta-Ethics and Legal Theory: The Case of Gustav Radbruch
38 Pages Posted: 10 Aug 2006 Last revised: 13 Jul 2009
Date Written: July 25, 2008
The received view among legal theorists has been that Gustav Radbruch's post-war standpoint on the nature of law was that law and morality are conceptually connected, and that therefore laws that are intolerably unjust are flawed law and must yield to justice; whereas Radbruch's pre-war stance had been that of a legal positivist and a moral relativist. But recently distinguished legal theorist Stanley L. Paulson has challenged the received view, arguing that Radbruch's pre- and post-war views are really continuous, if not fully consistent. In this article, I discuss the compatibility of Radbruch's pre- and post-war analyses of the nature of law and the place of Radbruch's meta-ethics in these analyses. I argue, pace Paulson, that Radbruch's pre- and post-war analyses are indeed incompatible, as the received view has it, because they involve incompatible claims about the existence of a conceptual connection between law and morality. I also argue that the pre-war analysis is to be preferred to the post-war analysis. For whereas the pre-war analysis presupposes meta-ethical relativism, the post-war analysis - through the Radbruch formula - presupposes moral objectivism, and meta-ethical relativism, but not moral objectivism, is a defensible meta-ethical theory.
Keywords: Radbruch, relativism, legal positivism, Radbruch formula
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