Eternal values
Gustav Radbruch. Five minutes of Philosophy of Law
25.05.2023 217
Alexander Gnezdilov (preface): "The annual Legal Forum in St. Petersburg was marked by a number of odious statements by Russian officials. Thus, the head of the Investigative Committee, Bastrykin, and the Minister of Justice, Chuichenko, advocated the introduction of a "national" or "state" ideology, which is a direct violation of the current Constitution (its article 13, which refers to the foundations of the constitutional system of Russia). The same Minister of Justice during the session "Besogon and Law" called for depriving people who are declared foreign agents without trial of the opportunity to earn a living, and his deputy Sviridenko at the same forum announced the prosecution of "third parties" who help imaginary "foreign agents." Leaving aside the question of why public positions are occupied by open opponents of the foundations of the state system, we state the confidence of many high-ranking officials in their right to make any fantasy a law and then hold citizens accountable for its violation. Meanwhile, such confidence is nothing more than an illusion. It is based solely on the capacity for violence and has no legal basis. To verify this, it is enough to recall the history of the 20th century, including the famous "Radbruch formula".
Gustav Radbruch (1878-1949), German jurist and jurist, served twice as Minister of Justice of the Weimar Republic (in 1921-1922 and in 1923). In 1933, he was one of the first university professors to be dismissed by the National Socialists for political reasons. A proponent of the "jurisprudence of values", Gustav Radbruch became one of the most influential world legal philosophers of the 20th century, whose works were not only theoretical, but also of great practical importance. Since 1945, his publications have played an important role in the process of denazification of Germany and in the establishment of the Federal Republic of Germany as a State governed by the rule of law.
The "Radbruch formula" is usually referred to as the idea expressed in various texts that sometimes a law formally adopted according to the rules is not a document of law, but of what Radbruch calls "wrong" (German Unrecht). In one of his works, he wrote that "when the current law is blatantly incompatible with justice, when the law "wrongly" denies justice, when it is not even sought, and the equality that forms its basis is deliberately denied in the law—making process, it is quite possible that the content of unlawful acts and the degree of their injustice are so significant." that legal stability cannot be taken into account."
Smart Power Journal offers its readers a short article by Gustav Radbruch "Five Minutes of Philosophy of Law" (1945), where he clearly and concisely formulates the main idea of his famous formula. This text is considered extremely valuable for the modern Russian reader in general and in the context of the St. Petersburg Law Forum in particular. After all, history, as we know from Vasily Klyuchevsky, does not teach anything, but severely punishes for lessons not learned."
Gustav Radbruch. Five minutes of Philosophy of Law
The first minute
"An order is an order," they tell the soldiers. "The law is the law," says the lawyer. But at the same time, a soldier's duty to obey ceases to apply if he finds out that the purpose of the order is a crime or an offense. Lawyers, however, a century after there were no initiators of natural law among them, are not aware of such exceptions to the operation of the law and the subordination of law-abiding citizens to it. The law is valid because it is the law, and it is the law if its force is recognized in most cases.
This understanding of the law and its actions (we call it the theory of positive law) has made everyone, including lawyers, defenseless before laws that justify arbitrariness, terrible and criminal laws. In the end, they identified law and force — only where there is power, only there is law.
The second minute
They wanted to add or change this provision: law is something that is useful to the people.
But it can mean arbitrariness, and violation of the contract, and illegality, if only it is for the benefit of the people. In practice, this means that the right is everything that the one in whose hands the state power considers generally useful, namely: any fantasies and whims of a despot, punishment without trial, illegal killing of the sick.
Gustav Radbruch House, a student dormitory at the University of Heidelberg
But it can also be defined in another way: the self-interest of power is seen as a common benefit. And thus, equating law with an imaginary, or so-called popular benefit, turns a rule-of-law state into an illegitimate one.
No, it cannot be said that everything that is useful to the people is right. Rather, on the contrary: only what is right is useful to the people.
The third minute
Law is the will that strives for justice. And justice consists in judging without regard for authority and treating everyone with the same standard.
When they encourage the murder of political opponents, when they order the killing of representatives of another race, and for the same crimes against their own like-minded people they are punished with the most terrible and shameful punishments, this is not justice and not the right.
If laws deliberately violate the will to justice (for example, by granting human rights to a particular person or denying them solely out of arbitrariness), then in these cases such laws are invalid, the people are not obliged to obey them, and lawyers must find the courage not to recognize their legal nature.
The fourth minute
Of course, the purpose of law, along with justice, is also the common good. Of course, the law as such, and even a bad law, has the value of having the right to verify doubts.
Human imperfection does not allow us to harmoniously combine all three values of law in the law — common benefit, legal stability and justice, and it remains only to choose between agreeing to the operation of a bad, harmful or unfair law in the name of legal stability, or refusing to operate it, given its injustice and harm to the whole society.
But the people (and lawyers in particular) should clearly realize that although laws that are largely unfair and harmful to society may exist, they should be denied operation and recognition of their legal nature.
The fifth minute
There are also legal principles that are more authoritative than any legal regulation. In this case, the law contradicting this principle does not apply. Such principles are called natural law. Each of them individually was questionable. But over the centuries, their solid content crystallized, and by common consent they were enshrined in the so-called declarations of fundamental and civil human rights. So most of them are beyond doubt.
In the language of faith, the same ideas are expressed in the following words of the Bible: on the one hand, you should obey the authority that stands above you, and on the other, you should obey God more than man. And this is not only a good intention, but also a valid legal principle. But the contradiction that arises between these two words cannot be resolved by the maxim: give Caesar what is Caesar's, and God what is God's, since even these words leave doubt about the distinction between these concepts. Moreover, they yield the decision to the voice of God, which only in special cases awakens the conscience of the individual.
Translated from German: Doctor of Law, Professor Yuri Yumashev
Foreword by Alexander Gnezdilov