HERBERT HART’S CRITIQUE OF RADBRUCH’S FORMULA

Abstract

Epochal events generally have great influence over deep-rooted beliefs, and at times they even succeed in modifying them. The values which have been considered proper and inviolable may be reassessed by such events. The disastrously negative experience of the National Socialist State changed the view of a famous German jurist and legal philosopher Gustav Radbruch, who was a legal positivist before the National-socialists’ advent.

The National-socialists’ era clearly demonstrated to Radbruch that positivism, which acknowledges all statutes adopted through established procedures and socially effectives as law, turned into a helpless concept in the face of unjust and criminal laws. We can consider his well-known formula developed in the article “Statutory Lawlessness and Supra-Statutory Law” published in 1946 to be a result of reconsideration of some values caused by his negative experience.

A critique of Radbruch’s formula written by the British legal philosopher and positivist Herbertm Hart, is conditioned by the latter’s different views, especially the view on the separation of law and morality. In the present paper we’ll try to explain Radbruch’s formula and examine Hart’s arguments and strength of his reasons.