• Judge Foster and the natural law tradition.
  • The Grudge Informer cases and Radbruch's formula of legal injustice.
  • The Berlin Wall Shootings Case.
  • Radbruch's legal philosophy.

Justice Foster: appeal to morality and justice.

- Claim about the validity of law”Newgarth law is not valid in relation to the explorers becase they were outside the Newgarth legal order.

  • Claim about the interpretation of law: Newgarth law must be interpreted in a way that ensures that law corresponds to the demands of morality and justice.

The natural law tradition: natural law is natural in the sense that it is not at the disposition of state institutions (parliaments, courts etc.). necessary connection between law and morality: law incorporates morality.

  • Law does not merely govern but is also governed (by requirements of morality, reason, human well-being etc).
  • To understand what the law is, one needs to inquire whats the law ought to be.

Thomas Aquinas: lex injusta non est lex. What which is not just seems to be no law at all. Wherefore the force of a law depends on the extent of its justice.

The natural law thesis: unjust law is not law:

  • Strong: unjust law is neither legally or morally binding. Claim about legal validity Fosters 1st Unjust law lacks the quality of law altogether.
  • Weak: unjust laws are legally but not morally binding. Claim about legal interpretation Fosters 2nd Law must be interprted in accordance with standards of morality and justice.

The Grudge informer cases: grudge informers notified the authorities of persons who had criticised Hitler or his national-socialist party. In the interpretation of the court, such critique constituted a crime punishable by death under the Nazi legal order.

Radbruch: anyone who informed on another during those years had to know that he was not consigning the accursed to a lawful judicial procedure, but that he was delivering up the accused to arbitrary power.


  • The Deprivation of Liberty Case.
  • The Puttfarken Case.

Criminal repsonsibility of the informers? Informing on critics of the regime was bringing a criminal to justice. The informers did not violate any law under the national-socialist legal order.

Criminal responsibility of the judges? The judges were under a duty to apply and enforce the law of the national-socialist regime.

Radbruch's formula: the positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree that the statute, as flawed law, must yield to justice.

Where there is not even an attempt at justice, where quilty, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely flawed law, it lacks completely the very nature of law.

The Berlin Wall Shootings Case:

Atguments of the guards:

  • Acts of authorities on their own territory and cannot be subjected to review by a foreign court. Acts of state doctrine, state immunity.
  • The guards acted on the basis of orders they received in accordance with the valid law of East Germany.

Assessment of the Court:

  1. Which law applies to the case. the law of West or East Germany?
  2. Incidentally: which law is more favourable to the guards?
  3. Incidentally:were the actions of the guards justified/excused under East German law?
  • Illegal border-crossing is a criminal offence and is punished with imprisonment to a maximum of two years.
  • The use of firearms is justified to prevent the imminent perpetration or continuation of a punishable act which, considering the circumstances, is a crime.
  • In the use of firearms the life of persons is to be spared as much as possible. Those who are wounded should receive first aid, taking into account the necessary safety precautions.

Border crossing is a crime and killing to prevent fugitives from crossing the border is therefore considered justified.

The Court accepted that the actions of the guards would be justified under East German law in its official interpretation. BUT: held that East German law, in its correct interpretation, could not justify the acts of the guards.

  • Interpretation violates international human rights law. Article 6 and article 12 ICCPR. Right to life and right to leave the country. The rule is that everyone can leave their country, restrictions are the exception. In the East German practice, this logic was reversed. Article 6 requires that the state strictly limits and controls actions of its agents that may threaten the life of its citizens. The GDR border regime did not satisfy these criteria. Human friendly interpretation.
  • GDR interpretation is an expression of legal injustice (Radbruch).

A ground of justification accepted under GDR law at the time cannot be taken into consideration:

  • If it is the expression of an obvious and gross violation of fundamentel principles of justice and humanity.
  • If this violation is so serious that it offends the legal conviction of all peoples concerning the worth and dignity of humans beings: and
  • If the conflict between positive law and justice is so intolerable that the statutory provision must, as false law, cease to justice (Radbruch).

No violation of the nulla poena sine lege principle:

  • No one shall be held guilty of any crime offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.
  • Nothing in this article shall prejudice the trial and punishment of any person for any act of omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

The purpose of the nulla poena principle is:

  • To protect the accuses against arbitrary treatment.
  • To protect the trust the accused has put, at the time of acting, in the continuing existence of the law.

But there was no valid justification for the actions of the guards under GDR law at all at the time:

  • The correct interpretation of GDR law does not impute on its contents which would be irreconcilable with the law's own pretensions.
  • The guards reliance of the presumed vailidty of GDR law is not worthly of legal protection.
  • No violation of the nulla poena sine lege principle.

Outcome: the justification under GDR law must be disregarderd. Guards were punishable according to GDR law in its correct interpretation at the time of the shoortings (c).

  1. West German law is more favourable to the accused.
  2. West German law applies to the case.

Conviction is upheld.

Foster and Bundesgerichtshof: similar reasoning, opposite results?

Foster: explorers must be acquitted:

  • Because the law of Newgarth is not valid in the cave.
  • Because the law of Newgarth must be interpreted in a moral way that accommodates their extreme situation.

Bundergerichtshof: guards shooting fugitivies at the Berlin wall must be convicted.

  • Because GDR law was not valid in relation to the shootings of the fugitives.
  • - bacause GDR law must be interpreted in a human rights friendly way that avoids an intolerable conflict between law and justice.

Berlin Wall Shootings: they should have known better.

Grudge informers: they did not know better.

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