Did Gustav Radbruch miss the point?

Tevet 8, 5775

Short after WWII Gustav Radbruch published a ground breaking essay:

Resource:
http://www.uni-potsdam.de/fileadmin/projects/jur-zimmermann/LV_2010_2011/Koll_Radbruch_Aufsatz-SJZ_1946__105.pdf
Translation into English: Yael Schlichting

Statutory Lawlessness and Supra-Statutory Law

Süddeutsche Juristenzeitung 1946, S. 105-108

Positivism with its creed »Law is Law« indeed has made the German booth of Jurists defenceless against laws with arbitrary and criminal content. Though positivism is not able at all to justify the validity of laws out of its own power. It believes, a laws justification was already proofed since it had the power to establish itself. But maybe an obligation can be instituted on such power, but never an intrinsic ought and validity. In fact these two only can be established on the intrinsic value of the law. Of course every positive law carries a value regardless of its content: Still such a law is better than no law, since it creates stability of law.

But stability of law is not the only and not the essential value to be materialized by a law. Besides stability of law two other values come into effect: Practicality and Justice. In their hierarchy of these values, we are to assign practicality of law to common welfare at the lowest position. By no means everything that is considered »to the advantage of the peoples«, but after all only what is lawful, establishes stability of law and strives for justice, will be to the advantage of the peoples. Stability of law, which every positive law posses due to its positivity takes a peculiar middle position between practicality and justice: On the one hand it is demanded by the common welfare, on the other hand also from the cause of justice.

The stability and reliability of law, that it is not today and here the one and tomorrow another interpretation and application, also is a requirement of justice. In case of conflict between stability of law and justice, between a substantially disputable, but positive law and a just but not written law, in truth lies a an inner conflict of justice, a conflict between alleged and true justice. This conflict is brilliantly depicted by the gospel, when it commands: »Be subordinated to the authorities« and contrariwise commands, »to obey to G-d before humans«.

The conflict between justice and stability of law ought to be resolved by prioritizing a positive, through statute and power secured law, even if it is unjust and impractical unless the contradiction of this positive law to justice reaches an unbearable extent, that such law has to give way to justice, as it is a distinguished »incorrect law«. It is impossible to draw a clearer line between the cases of statutory lawlessness and despite incorrect content still ‘applicable law’; though by all its severity a different demarcation shall be taken: where justice is not even intended, where equality, which represents the core of justice intentionally has been denied when the it has been set, in such case, a law not only is »incorrect law«, it lacks every quality of law. For there is no other way to define law, also positive law, but as an order or statute which is intended to serve justice by its sense.

Measured at this criteria, whole batches of National Socialist law never gained the honour to be applicable law. The most outstanding property of Hitlers personality, the trait, he also affixed onto the whole National Socialistic law, was his total deprivation of any sense for truth and justice: Because he lacked every sense for truth, he had the ability to give the accent of truth to anything rhetorically effective without shame and scruple. Because his total deprivation of any sense for justice he had the ability to unscrupulously sign even the most blatant arbitrariness into law. At the beginning of his rule there is that telegram of sympathy addressed to the Potempa-murderers, at the end, the atrocious dishonouring of the martyrs of July 20th 1944. Already on the occasion of the Potempa-Rule, Alfred Rosenbert in »Völkischen Beobachter« furnished the theory, that human does not equal human and murder does not equal murder; The murder of the pacifist Jaurès lawfully has been rated differently, in France than the attempted murder to the nationalist Clemenceau; a perpetrator who failed in dedication for his country, impossibly can subjected to the same punishment as another whose motives (according to National Socialistic anticipation) acted against the peoples.

Therewith it was pronounced from the first, that National Socialistic »law« was intended to abscond from the constituting requirements of Justice and equal treatment of equals. Consequently insofar it generally lacks quality of law, not even incorrect law, but no law at all. In particular this is effective for those regulations, in which the National Socialistic party which, in contradiction to the particulate character of every political party, claimed totality of state for itself. Furthermore the quality of law is absent in all laws which treat humans as subhuman beings and deny human rights. Also without quality of law, are those threats of punishments which are made irrespectively of the severity of a crime, only guided by the desideratum to deter crimes of most different severity with the same threat of punishment, mostly with capital punishment. All these are only examples of statutory lawlessness.

It must not be misconceived – particularly after the experiences of that twelve years – what terrible dangers to stability of law can be brought about through the concept of »statutory lawlessness«, the denial of quality of law of positive laws. We must hope, that such lawlessness, remains a unique confusion and confusion of the German peoples, but for all possible cases we have to be prepared against the return of such a lawless state, by on principle overcoming positivism, which is disabling all defence against abuse of National Socialistic legislation.

 My trouble with this otherwise good writing text is that Radbruch accepts an otherwise defective law for the sake of stability of law. Justice – one of the core values upon which we have built our societies for many millennia – is by far not so important for him, and generations of modern lawyers and law scholars, than stability of law and practicality. If you watch today’s lawmakers, judges and lawyers doing their work, you can’t avoid the impression, that they are doing their law-business for the sake of law-business and not for the good the whole society. Conclusiveness is pursued at any price inside the court rooms even though everybody knows if things go wrong. There are enough cases, where a judge should run out of the court room crying out loud, “NO! I can’t do this!” when they see, that lie and wickedness revailing.

But laws are dead things. Laws do not care, if they are abused. Laws have no dignity. But lawmakers? Do lawmakers have dignity? I look at Germany again and I see a parliaments and governments passing one bad law after the other and waiting for the constitutional court to cancel these laws one by one. Until this happens, statutory lawlessness prevails and even worse. Only a few days ago, in Germany the constitutional court cancelled the legacy tax in its current form for giving unfair privileges to the rich (those who own a company – even those who own really big companies) Already in advance Germany’s finance minister promised, that he basically will keep these privileges for the rich intact. Of course he will reform the law and he promised to be quick, but he will do this in a way, that on the one side he meets the courts demands to the letter and on the other the problem of legacy tax in Germany injustice will prevail.