Early Radbruch:
- Positivistic conception of justice.
- Relativistic conception of values.
Late Radbruch:
- Natural law conception of justice.
- Morality trumps conflicts of values.
Thinking of law (legal doctrine): what is the law on a particular issue? Inductive method of legal science. Derives the concept of law from various legal phenomena.
Thinking about law (legal philosophy): what are the characteristics of law that explain its validity and normativity? Deductive method of legal philosophy. Derives the concept of law from the idea of law. The idea of law is presupposed: Radbruchs 3 a priora's.
- Justice as equality: justice demands that equals be treaated equally, different ones differently according to their differences. Whom to consider equal, and in what regard? How to treat them equally? Justice as equally determines only the form of the law, not its content. It requires the identification of differences relevant for making a disctinction.
- Purposiveness: law serves goals/purposes that society sets itself. Are derived from values.
o Individual values: freedom etc.
o Collective values (trans-individualistic): nation etc.
o Work values (trans-personel): culture etc.
Whats purpose should the law serve? The different purposes of the law conflict with eacht other. The law must be able to end disagreements about the purpose of the law.
- Legal certainty and positive law: the certainty of the law requires law to be positive. If what is just cannot be settled, then what ought to be right must be laid down; and this must be done by an agency able to carry through what it lays down. So most oddly, the positivity of the law itself becomes a prerequisite of its rightness. its right because its posited.
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Early Radbruch |
Later Radbruch |
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Justice is purely formal criterion |
Justice is sunstantive criterion (morality) |
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The three a priori's are equivalent |
Relative ranking of the three a priori's (first justice, than legal certainty and then purposiveness). |
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Judges are bound by posited law |
Judges can disregard posited law is it is an intolerable conflict with justice |
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The law dervies its rightness form its being posited |
The law dervies its rightness from justice |
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Seperations of law and morality |
Necessary connection between law and morality |
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Legal positivism |
Natural law |
Foster and Radbruch believe there is a necessary connection between law and morality.
- Foster: Newgarth legal order does not apply to the explorers. Newgarth law must be interpreted to accommodate the extreme situation of the ecplorers.
- Radbruch: where there is no attempt at justice, a statute lacks the quality of law altogether. Flawed law must yield to justice.