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Philosophical Review

The Philosophy of Law of Gustav Radbruch
Author(s): Anton-Hermann Chroust
Source: The Philosophical Review, Vol. 53, No. 1 (Jan., 1944), pp. 23-45
Published by: Duke University Press on behalf of Philosophical Review
Stable URL: http://www.jstor.org/stable/2181218
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THE PHILOSOPHY

OF LAW OF GUSTAV RADBRUCH

1

EW, if any, among presentdaycontinentalwriterson jurisprudence hold a more outstandingplace than Gustav Radbruch.' At a timewhen at least the apparentand externalsuccess
of any achievementwould seem largelyto dependupon the width
and propaganda,he refusedto
and vociferationof advertisement
identifyhimselfwithany one definitetypeof jurisprudence;nor
did he attemptto secure the positionof a founderand leader of
a perhapsacademicallyimportantschool of thoughtin orderthat
it might,with varying excellence, be propagated, interpolated,
paraphrased,or merelyplagiarizedby a host of disciples,faithful
or otherwise.In like manner,he has not strivenfor preeminence
throughthe literarysensationalismof mercilesslyattackingall
legal-philosophicalsystemsof the past and present while proclaiminghis own theoryof law as the onlyone, outsideof which
no trulyscientificjurisprudencecan exist.
Radbruch's appeal in the domainof jurisprudencearises from
thetrulyclassical beautyand aestheticalrestraintof his style,and
fromtheprofoundand maturewisdomwhichpermeatesthewhole
of erudition,
of his workand whichdenotesat once a thoroughness
a sincerityof tolerance,a complete comprehensionof ultimate
and, finally,a total absence
logical and epistemologicaldifficulties,
of the slightestintellectualarrogance.The genuinenobilityof his
treatmentof the extremelyproblematicalquestionsof the philosophy of law is manifestin his almost religiousidealism,in the
avowed importancewhich he allocates to a deeply rooted faith
in all that is fineand good, and in his happy confidence-a confidencewhichreveals the extentin whichKant is part and parcel
of all purely
of his thought-that the ultimate insufficiencies
' GustavRadbruch,born I878 in Luebeck (Germany); Professorof Law
at the universitiesof Koenigsberg,Kiel, and Heidelberg,retiredin I933.
in I922 and I926.Ministerof Justicein the GermanFederal Government
Of his legal writingsthe most importantphilosophicallyare: Rechtsphilosophic,3d (and enlarged) edition,Leipzig, I932 (the Ist and 2d edit.
in 19I4 and
appeared under the title Grundzuegeder Rechtsphilosophie,
Ist edit. Leipzig, I9I0, 7th
Einfuehrungin die Rechtswvissenschaft,
1922);
des Rechts", in Radand 8th edit. I929; "IJeber Religionsphilosophie
der Kultur, Berlin, I9I9 (2d edit.
bruchand Tillich,Religionsphilosophie
Kulturlehredes Sozialismus,2d edit. Leipzig, I927; Der Mensch
I92I);
in Archiv fuer
im Recht, Leipzig, I926; "Rechtsideeund Rechtsstoff"
Rechts-undWirtschaftsphilosophie
I7 (Berlin I923/24) 343 f.; Paul Johann
Wien, I934.
AnselmFeuerbach.Ein JuristeXileben,
23
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Radbruch considerslegal philosophy.and whichaccountfor the typicalfeatures of his jurisprudence. and why he has been moreoftenmisunderstood thanappreciated. His frankadmissionof the definiteshortcomings of all mere rationalizations undoubtedlyaccounts for the unmistakableundertoneof quiet resignationwhich underliesnearly every one of his statements. Radbruchis the truechild of the greatKantian traditionwhich was once intellectualGermany.he did not seek to' address the public at large. logical and theoreticalreasoningabout the natureof the law can be overcome by honest effortand by conscientiouswork. at times.24 THE PHILOSOPHICAL REVIEW [VOL. His "relativistic"or "agnostic"attitudetowards the problem of value and towards the ontological question in generalcan be understoodonlyin thelightof theessentialelements of Kant's philosophy.and exquisitelanguageof the accomplishedthinker.For it is fromKant.grownsomewhat tired-the sunset of the great German intellectualtraditionin I932.He himselfadmits his own indebtednessto such classical "Neo-Kantians" as WilhelmWindelband and Heinrich Rickert. this scholarly restraint. and Lask. Windelband.The very keynoteof Radbruch's philosophyof law remains always basicallyKantian. he preferred.No zealot or prophet.or jurisprudence.By this very saneness and tolerance of acceptance. LIII.Radbruch'swork is not unlikethe somewhat saddeningsunsetof a greatintellectualtradition.lack of being "sensational".and withoutsome comprehensionof this background.the two outstandingleaders of the so-called "School of Heidelberg".to speak quietly to those few who could and stillcan conversein the subdued.122.240.rather.Yet thisimpossibility ever to reacha theoretically complete and satisfactory answerto any practicalproblem-an impossibility necessarilyaccepted-is qne toward which he is too wise and understanding to bear a grudge. the year in-whichappeared the thirdand final editionof his Rechtsphilosophie. that Radbruch derives the basic inspirationswhich moldedhis philosophy.Radbruch's work must remainto the reader a completeand.Rickert.odd stranger. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions .19 on Wed. thatdisciple of Rickert and Windelband who was perhaps the most gifted and promisingGermanphilosopherof the twentiethcentury. and to Emil Lask.as an This content downloaded from 190.This.explains also why Radbruch has never become really popular.

Truth representsmerely a methodologicaljudgmentrenderedwith referenceto a definite value or ideal.so magnificently in the Sermonon the Mount. as themaintopicof what-iscommonlycalled "legal science".No.Only in connectionwith a universalphilosophicalsystemmay a theoryof law be understood in its true and fullestmeaning.social.because of this significanceor meaningwhich we attributeto something empirically"given". Value or truth.In conformity with the Kantian and Neo-Kantianmodel. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions . and (4) a treatmentof the law and its problemswhich transcendsall values. for he does not limithimselfto a meretheoreticalevaluationof thepurelyformalistic structureof legal philosophy.deals withlaw as a fact or aspect of a historicallygiven and developed civilization.however.He goes far beyondthe Kantian tradition.betraysa totalindifference towards (cultural. and which is the main topic of a religiophilosophicalattitudetowardshumanlaw and justice.What was formerly butan "incident"becomesnow the rationalhistoryof humancivilizationwithall its "goods" and This content downloaded from 190.as a treatment or "attitude". (2) the treatmentwhich relatesthelaw to certaindefinitevalues or value-ideals.of thisbeingjudged as trueor good.Radbruchdistinguishes betweenvalue or significance. and "lack of value" or "lack of any significance".240.as expressed.this "something"turnsintomorethana mere "givendatum". and.122. therefore.] PHILOSOPHY OF LAW OF G. for instance. whichconsiderslaw as a culturalvalue or "good". RADBRUCH 25 integralpart of general philosophy. Radbruch speaks of four possible treatmentsof the law and its problems. or economic) values.three of these treatmentsbeing philosophicalin theirnature: (i) the "realisticmethod" thoughnot a philosophical methodin the strictsense of the term-which.and which.in the last analysis. (3)'that treatmentwhich consists in the evaluation -ofthelaw. and which constitutesthe main topic of what is called "legal philosophy". And because of thisvalue.19 on Wed.His main endeavor is rather directedalways towardsthe investigationof the culturalor practical significance and meaningof the various contentsand aspects of law and justice. 1.a purelysubjectivecriterionby means of whichthe varietyof certain historicaldata may be "ordered".is to Radbruchexclusively a spontaneous creation of the human mind. Thus truth itself is nothingbut a value.moral. historical.

Civilizationis to Radbruchnot the actual realizationof a value or values.26 THE PHILOSOPHICAL REVIEW [VOL. they constitute. LIII.122.A value. consequently. That somethingis done does not in itselfprove its righteousnessor that it "ought" to be done. Kant had already shown the impossibility of deducingwhat "ought" to be done fromwhat actuallyis done. being.Positivism.the significance of which. betweenthe "Ought'. cannotbe bridgedby logic or any other rational method. merelya spontaneous"creation" of the human mind.like all relational norms of human understanding. "bads".undemonstrableby empiricalscience.resides in the realizationof certaindefinitevalues. an "Ought". "values" or "Oughts" cannot be deduced from empirical facts. We can profess our ideals.like Kant in his ethicalwritings.for thephilosophicalmind.240.and not the historical actualityas such.2 it is ratherthathistoricalreality. guarantee that it ever will be done or thatit has been done. we can most fervently believe in them.Historicism.repudiatesall forms of Empiricism. and the "Is". The subjectivityof all values excludes fromthe beginningtheirstrictlyscientificnature. History or historical civilizationbecomes a methodic science only when its different data are relatedto some definite values. Neither does the necessitythat something "ought"to be done.and thus make 'themthe last resortof all our thoughts and actions. Ethical value-conceptsand scientificnotions of empiricalfacts are instruments of two totallydifferent and mutuallyindependentmethodsof humanunderstanding. Radbruchbelievesthatfaithin theworkingof values and conscientious striving for a truly practical solution of all these problemspresentthe onlypossiblemeans by whichthis "irreducible antinomy"betweenvalue and empiricalrealitymay be overcome.19 on Wed.or Evolutionism.are determinedby values and Ideas. Thus Radbruch. Pragmatism. For only the significanceand meaningof concrete historyor human civilization. But it is impossibleto prove them scientifically or Faith and work must substitutewhere logic and experimentally. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions . can only be proved by another value or "Ought". Ethical norms. or has been done. Radbruch asserts again and again that the "gap" betweenthe subjectivityof all values and the empiricallygiven reality. 'For thiswouldbe a thoroughly Hegeliannotion.thatis. This content downloaded from 190.thata certainact is a "valuable" one.

of all ontological This content downloaded from 190.active. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions .or "voluntarism".For the lack of any strictlyscientificfoundationof all practicalvalues must be overcomeby practiceand work which is determinedand of the guided by thesevalues. It demandsour most ferventbelief in values.what is not impossible. a belief which is more than a mere substitutefor our "logical deficiencies". This denial of any logical foundationof values.In short. of justice.mightbe decided on the basis of experience. it also means that all that is called "good" deservesthis adjective solely because of its being related to a certain(subjective) value.however.240.he can. The philosophercannotdecide by mere logic which point of view is actuallythe "better".No. 1. whose Relativismis consequentlya far definition of a value cryfromthescepticismof Hume. of a workinghypothesis. is somethingimpossible. Even a conflictbetweentwo different be solvedby scienceor experience. the most of the necessityof a positive. Hence a strictlyscientificdefinition contentof the law.122. it is completelydevoid. Relativismwith Radbruchsignifiesnot only the completerefusal to apply any strictlyscientificmethodor even psychologyto the ethical or culturalproblem. however.and of the ultimatepurpose of the law.of any culturaltheory.values are grounded in a "metatheoretical"sphere.as well. Radbruch's philosophicalRelativismis not only the resultof a rathersound understanding of the limitationand functionof the logical process. however. while carrying all the earmarks of agnosticism and "nominalism".practiceabove theory!It is in this idea thatthe best elementsof the Platonic-Kantiantradition converge in Radbruch.contains.is unceasingstruggleto renderour ideals of law and justice more workable. RADBIUCH 27 values may not reason fail.] PHILOSOPHY OF LAW OF G. can by his very action or by his practicalattiude actually take a definiteside and adhere to his values by his faithin and work fora certainphilosophy.by theuse of logic indicate the possibleconsequencesof each pointof view.Work standsabove logic. All scientific is thusreplacedby man's personalattitudetowardshis values. and emphaticaffirmation creative personal attitudetowards these undemonstrablevalues. on theother hand.19 on Wed.This is theso-calledRelativism of Radbruch-the honestdenial thatthe correctnessor incorrectness of an ethicalor practicalvalue. whichin itselfis beyondall scientificdemonstration. Man.

therefore.3 But Radbruch is keenlyaware of an even more fundamental cause of his theoreticalRelativismthan the avowed limitationof logic and epistemology.as well as in all dealings with others. Unlike Plato.thought. opposingside.Radbruch'sRelativism.Absolutenessin knowledgedemandsabsolutenessin action. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions .should create an atmosphere of mutualrespect.becomesutterlyuntenable. or philosophicalview. refusesto identifyitselfwithany particularpolitical.thenanyattitudeof omniscient which sees but meannessand stupidityin the self-righteousneas. Lesser lightshave takenoffense or psychologicalhypostatizations. Radbruch attributesto ideals and Ideas a most powerfulpracticalinfluence over all historical development.2d edit.a democraticformof life.The ultimategrounds for his intellectual attitudeare primarilymoral.and fanaticism.or economic demonstratedas life.Karl Larenz (a discipleof the Neo-HegelianJulius Binder).transposed from actual life into the realm of human. legal philosophyis butthepolitical. therefore.an attitudetowardsothers.For he does notclaimto possess a definitescientific criterionof what constitutesthe "highest good" in the social.28 THE PHILOSOPHICAL REVIEW [VOL.moral.economic.In its idealistic nature.zealotism.and social struggle. which is promptedby one's own sacred beliefsas well as by one's respect for the beliefsof others.fully understoodand faithfullypracticed. amongothers.and.19 on Wed. 75 et seq. at this attitudewhich seems to deprive certain people of that dogmaticbackgroundnecessaryfor any politicalabsolutism.The 3-See.He believesthatlogical Relativismand not rationalAbsolutism-formsthe trulyphilosophicalbasis of a workingdemocracy. Radbruchis. political.thatis to say. LIII. This content downloaded from 190. In spite of his Relativismand relativisticIdealism.Logical Relativism.240. I935.122. ready to concede the politicalleadershipto the majority.based solelyon faithand work. p.For the absolutistor "ontologist"has alreadysettleda prio)'iwhat is "right"or "good" by a supposedly of the objective"good". Berlin.religious. It is obvious that absoluteunderstanding such a positioncompletelyexcludes the majoritypoint of view in such mattersand promotesnothingbut intolerance. But if no particularview can be definitely beingabsolutely"right"or "wrong". Rechts. Reltivism permitsa free and tolerantexchange of thought.und Staatslehreder Gegenwart.

servient. however. For This content downloaded from 190. having the prime abstract significanceof being "just". whichis nothing else thanthe abstract"Idea of Justice".or through addingnewproblemsto alreadyexistingones. only withinthe frameworkof a "value-relatingattitude"or process or.and which actually molds and shapes every fact in the social world.more than a mere value or ideal. in a certainsense. The "Idea of Law and Justice"is onlya value. A certainlaw or legal provisionmay be "unjust" in theopinionof somepeople. Radbruchdefinesthe law-that is.19 on Wed.No.relatedto a certainvalue. For any true legal philosophy does not project itself. and has. havingas such all thecharacteristics common to any intellectualattitudeof evaluation. Law is theworkof man. Thus Radbruchcalls the conceptof law a "culturalconcept".as the ultimatecriterionof the "law in action". theadministration of justice as well as the body of authoritativerules underlyingjudicial decisions-as a culturalphenomenonwhichdenotesa historicalfact. it is. into a "vacuum". This conceptof law is. throughits "Idea". it is one of the real formsin whicha definitehistoricalcivilizationmanifestsitself.240.of whichphilosophyis but thebeginning. 1.on the otherhand. in otherwords. therefore.] PHILOSOPHY OF LAW OF G. Law is. being not deducible fromany furtherlegal conceptor value.122. relatedto a definite value or set of values.The "Idea of Justice"in itself constitutesthe ultimatelegal value.the significanceof being subservientto a definite value or ideal. to a definite In otherwords.is a definitereality.and revolution the end.law as such is significant throughits beingrelated to and determined by theabstract"Idea of Law". the law itself.a conceptof a definite realitywhose significancerests in its being related to a certain value. in its "validity".valid. It also serves.thatis. itsreal purposeis to realizeitselfthroughinterpretation and reinterpretation of alreadyexisting"social facts". therefore.always "law". it remainsalways that highestprinciplewhich grounds all that is commonlycalled the "empiricalrealityof the law". its significance-and Radbruch primarilyconcernshimselfwith the significance of the law-can be comprehended. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions . however. RADBR-UCH 29 actual historicallife itselfis the greatestof all legal-philosophical discussions. as it were. of being subvalue or ideal called abstract"Justice".

33.122.on the different particularcontentsof the "law in action".. The conceptof law is always determinedby the "Idea of Law and. LIII. withinhis legal philosophy. I130b9.Justice".and thenmerelyby way of the individual.these economicor social movementsare apt to shape in a decisive manner the general direction. conversely.or evenmoralcontrol.In thislattersense. Radbruch reaches the conclusion that every workinglegal systemis the productof both "form" and "matter". economicsand economiclaws while.to definewithinhis legal philosophythe relationof pure "form" to "matter". lems to be dealt with by the law. The term"Justice"mightbe applied to the observanceor adof thelaw as well as to law itself.240. move withouttroublingmuchabout juristicconsiderations. of Aristotleconcern'In this Radbruchgenerallyfollowsthe statements ing thenatureof Justice. as a meansor institution he fullyrealizes that trulydecisive social movementsthroughout historyare in the last analysis beyond the controlor initiating powerof thelaw. 24. ministration "Justice"becomesa definitecriterionof theexistinglaw. f. Radbruch's problem is.Ii 29a34. or FundamentalElementsof Metaphysicsof Morals. only throughthis relationshipmay the abstract concept of law become a "culturalconcept".and can thus influence only little.and that it is in this that the relationship between"form"and "matter"in the worldof legal thinkingconsists. in his Critiqueof PracticalReason. i6.Thus the abstract"Idea of Law and Justice"theoreticallyconstituteswhat mightbe called the formalelementof the law.In theiressence. ascribesto his "universalmoral law".30 THE PHILOSOPHICAL REVIEW [VOL. therefore.While admittingthe importanceof law of social.It has no grasp on the masses and theirpsychology. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions .NicomacheanEthics.4 This Idea is supposed to "prove" itself on certain historicallygiven or developed legal materials. Equality necessarilymeans equality 'Radbruch's "Idea of Law and Justice"has. Ii31aio This content downloaded from 190. yet he does not deny that eitherone of these two elements may predominate.5 In order to be "just". 12 f. The legal orderonlyregulatescertainmanifestations of the life of certain individuals.as well as the parof the law.the greater social or economic trends.19 on Wed.economic. and continuallyoffernew probticular development. primarily denotinga relationshipamong men-the relationshipof "Equality". the same "formalistic"or "universalistic"functionswhich Kant.

122. NiccmacheanEthics II37a32 f.Justicein thesense of Equity. while Equity is concernedwiththe particularnatureof featuresof the "situationat hand".ever. Justice.not two different legal values. applicable solely to that particularproblem. Thus Equity primarilytakes into account the individualmerits of each singlecase as well as the particularinterestsinvolvedin this case.6 Any conceptualdefinitionof law-that is. Since Justiceand Equality implynot only an abstraction.240. Equity and abstractEquality are. it presupposes..are solelyimportant for the definitionof the nature of the law. that this has already been settledaccordingto some standards which in themselvesare not part of the principleof Equality but are rather"metalegal" in nature.By keep' The very wordingof these statementsclosely resemblesAristotle.deals withany particularproblem by applyinga general"norm". in thesense of abstractEquality. irreversible"norm".but also a definiterestrictionto but one side of a problem. For. AbstractJusticeor Equality always generalizes.law is thatrealitythe significance of whichis to be foundprimarilyin its being subservientto the "Idea of Justice". according to Radbruch. as such.No. of that reality.possible only if we deal withbutone singleaspectof a certainproblemratherthan withtheentireproblemas such.19 on Wed. One 'the other hand.] PHILOSOPHY OF LAW OF G. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions . relyingratheron intuitionthan on deduction or subsumption.how. This content downloaded from 190. But the principleof Equality itselfdoes not tell us who are equals and who are not. therefore.For Equity is only another"form" of justice.deducing what is considered "just" from a general "norm".Radbruch is forcedto introduceintothe treatment of the questionof "Right and Justice"a subsidiarylegal concept.attemptsto discover in each particularproblema special. it is essentiallyan abstraction fromexistinginequalities. RADBRUCH 31 among equals.in otherwords.the of whichis 'to be foundin its beingsubservientto the significance "Idea of Justice"-demands that we firstestablish the kind of realitywhichis supposedto serve the "Idea of Justice". Equality cannotbe called an empiricalfact. theyconstitutemerelyits specificprincipleand.Equality is. 1.Thus RadbruchadmitsthatJustice and Equality cannot be the only principleof the law.namelythat of Equity. however. but only two different means to achieve that value called "Justice".

they are. Radbruch gains a more concretedefinitionor determination.122.a definition whichagain proves the "relativistic"natureof Radbruch'sphilosophy of law. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions . particularlyof the "law in action".19 on Wed. This definitionof the legal preceptfollows deductivelyfromthe abstract"Idea of Justiceand Equality". of "wrong" (non-law).as well as some additional insightinto those very legal materials in relationto whichthe"Idea of Justice"acquirespracticalmeaning. LIII.we are able to draw some conclusionsas to the nature of the law. Radbruch's general concept of law contains a priori several legal subconcepts:the statementsof facts and of the legal consequences of a behavior contraryto that demanded by a certain legal norm comprise such subconcepts. The term"just" signifiesmerelya correctrelationship betweenthe "Idea of Justice"and the "law in action".the positivityand normativity of the legal precept.issued in the interestof the social coexistence of men.For theydenote a definiterelationshipof the general conceptof law to certainempiricalfacts. that is to of every science of law.the various relationsamongmen as its object. ing this functionof the law in mind. denotesprimarilya commandor commands. All these are but aspects or "qualities" of the general concept of law.of legal rightsor duties.which is but a realityrelatedto the "Idea of Justice.in themselvesrelational. say. Any legal precept.But since theyall springinto existence This content downloaded from 190. Radbruch distinguishesthe legal precept as being at once positiveand normative. Thus law acquires not only its "imperative"nature but also its social aspect. and.it representsa concept of a generalcommand. These differentlegal concepts are.The of onlyrealitycorresponding to the "Idea of Justice"is the realitythe precept.are not "products". the significance of whichis to be foundin its beingsubservientto values or Ideas. moreover.as do the concepts of "right" (law). By interrelatingin this manner Justiceand the "law in action". like the general legal concept. Consequently.240.32 THE PHILOSOPHICAL REVIEW [VOL."has.and the like. like the Idea itself. It is of the veryessence of the "Idea of Justice"to regulateand order human relationsaccordingto the principleof abstractEquality.of the "Idea of Justice". necessary instrumentalities its therefore.All reality.the ultimatetask of all legal preceptsconsistsin bringingabout equalityin a general and generalized sense. of legal relationship.

in the domain of the law.while. between law and according to Radbruch.because law.man stands face to face with himself. 1.19 on Wed. He furthermore points out the erroneousnessof the oftenvoicedopinionthatmoralsimply"selfcoercion". however. The "Idea of Justice"is realizedin and throughthe actualityof the law. is "good" for the social coexistence of men while morals are "good" in themselves. Neither. Radbruchdistinguishesbetweenlaw and moralityby emphasizing that law is essentiallya practical or culturalconcept.that is to say.Only in its interrelationwith historicallife can the true significanceof the law be apprehended. the meaning of which consists in its being related to a definite value. with Radbruch. The relationof law to morals cannot simplybe stated by reducing law to an "ethical minimum"or perhaps to an "ethical of the problemwould only maximum".122. Radbruch refuses to accept the traditional distinctionof law and morals. as a relationalconcept.in the realmof morals. for both are culturalconcepts-concepts of somethingexisting.No.comparethe"Idea of Justice"and morality.In like mannerwe could contrastlaw and morals.For such simplifications obscure the irreducibleantinomiesoften existing between law This content downloaded from 190.He likewise repudiates the commonbut neverthelesserroneousbelief that. Likewise moralitybecomesreal in and throughthe actualityof morals. can we differentiate morals by simplydeclaringthat morals merelyexpress an "internalattitude".We can. which is either based upon the supposed "externality"of the law and "internality"of morals or is groundedin the assumptionthat law.while moralityis onlya purelytheoreticalvalue-concept. or withhis God. and in just what their true essence consists.sincebothdenote a value-concept.withhis own conscience. completelyto schematizeeitherlaw or the'different or to reduce themto a few definitelegal categories.] PHILOSOPHY OF LAW OF G.while law always contains a coercion originatingwith a third person. RADBRUCH 33 as well as unfold themselvesonly in the fulnessof the historical and social life and its infinitevarious movements. is primarily a functionalratherthana categoricalconcept.For only the legal conceptsactually "law in action"can tellus whatthedifferent mean.240. man faces man.whilelaw concernsitselfexclusivelywithcertain externalactions".it is impossible legal concepts. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions .

of an "Ought". Law can only "usher in" morals.34 THE PHILOSOPHICAL REVIEW [VOL. Legal preceptsenunciate a "Must" but nevera morallyinescapable"Ought". is merelycontingent. whichthroughtheapplicationof "just law" constitutes This content downloaded from 190. philosophicallyspeaking. since morals are exclusivelythe "result" of man's free action and volition. but. Only the moral elementmightbe called thetruecompellingforceof the law.Since any coincidenceof law and morals law may be called "potentialmorality"."potential immorality" (summum ius. consequently.7 But even so the antinomybetween law and morals essentiallyremainsunsolved. Thus a and not by imposingcertainobligationsand restrictions. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions .19 on Wed. The "legal value" is consequentlyalways subject to moral evaluation. Any completecoincidenceof The trueconnectionbetween law and moralsis merelycontingent.The relationof law to morals is rich in contradictionsand tensions.and. As a mere means to realize certainmoral values.the ultimateground of the compulsorynature of the law.nothingbut the right of everyone to do what he considershis moral duty.beingthuscompletelyabsorbedby morals.only in the significanceof its ultimate purposeor end. We may call a legal norma legal duty only if our own moral conscience has made this same norm morallycompellingabove and beyond the mere legal "Must". therefore. law and morals is the discoverythat morals are the purpose or end of all law and. Law has as its primeobject the social coexistenceof men. LIII. accordingto Radbruch.240.morals.and is identicalwiththe preservationof man's moral personalityand dignity. particularlyif it is also made the object of a moral duty.law can neverenforceor realize morals. summa injuria). withouthowevertherebylosing its particularcharacteristics.In this the preservationand protectionof "individual rights" becomes a moral duty.the achievement a moralduty. such as "Justice".Thus "legality"becomessomethingthatis commonto all values which of I"Justice"is in itselfa moralvalue or "moralgood".in order to enable man to complywith his moral duties. it thus becomes a "moral value". Law serves morals primarilyby guaranteeingcertainpersonal rights.Law differsfrommorals primarilyas the means differsfromthe end. Thus law and justice are in the last analysis sanctionedby morals. and morals (or moral conscience). "personal right"is.law "partakes".122.

generallyspeaking.but primarilystandards or "patterns" by means of which the coexistence as well as the cooperativenessof differentindividuals may be "appraised" or evaluated. This content downloaded from 190. Custom forms.thesesame normsmustturn intopreceptsor "commands"("Musts") in orderto becomeeffectiveand fulfilltheirparticulartask. Thus the ultimatesignificance of any legal norm is that it "ought" to be realized in order that it may operateand acquire practicalimportance.8To denyto customany social or culturalimportance would be. This makes it impossibleto coordinate customand such culturalconceptsand values as law or morals.custom as such constitutesa powerfulmeans of social control.but historicallyaccepted "do's" and "don'ts".the commonand primitive"ancestor" of both law and morals.a conductwhich conformsto that"desired"by the different norms. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions . In the advanced stages of historical progress.custombecomestotallyabsorbedby eitherlaw or morals.From this Radbruch infersthat legal norms are in theiroriginal meaningnot merelyprecepts or "commands" directedto the individual. Radbruchconsidersthe relationof law (or morals) to what is commonlycalled "custom" as beyondall strictlyscientificor sysFor the only connectionbetweenthe two tematiccomprehension. since we are unable to discovera particularvalue or Idea determininga historicallydeveloped custom. in general.that is. RADBRUCH 35 have as theirultimateobject the "commongood" ratherthan the individualand his personal interestsor motives. 1. From what we have learned so far. certainaccidental.is "absorbed"by the moral principleof "Christiancharity"on the one hand. conLaw (or morals) and customremaintwo incommensurable cepts.122. for instance.quite misleading.No.For.19 on Wed.240. however. beingprimarilya timehonored tradition. is a purelyhistoricalone. or by both. we may gatherthat the abstract"Idea of Justice"formsthe specificprincipleor Idea of 'The customof givingalms. is supposed to bringabout a definiteconductin certainmatters.law is in the first place a bodyof means or "instruments" by whicha certainhuman behaviorcan be "appraised" as to its social significance or importance.] PHILOSOPHY OF LAW OF G.But since law.Consequently. it is not simplya body of "commands" orderinghuman conduct.and by certaininstitutions of public (legal) charity(welfare) on the otherhand.

great numberof different ethicalgoods can.however. In order to gain a more concreteknowledgeof what is considered"right and just". and (c) Work Values. These threevalues of absolute significanceare: (a) Human Personality.not be realizedsimultaneously. such as truth. justice.namely that of "Purpose".nevertheless. The abstract"Idea of Justice"'in no way exhausts.Radbruch enumeratesthree basic goods of absolute value and significancewhich formthe foundationof all other ethical or cultural goods.and (c) Human Works. This content downloaded from 190. thelaw. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions . or to tell us how in particularto treat equals. or better. finaltask of the law as well as of the "administration is the ethicalsummumbonum. or human personality.beauty.240. the full meaning of what is commonlycalled "right and just". however.genhowever. Radbruchdistinguishes between(a) Personal (or Individual) Values.which mightbe back of any legislativeact.In accordance with this triad of basic goods.each individual case".thatof "Justiceaccordingto the different ends (or interests)involvedin. the highestpurpose.The questionof the "generalPurposefulness"of the law and of the legal order. comprisesa goods or values.does not concernitselfprimarilywithpersonalends. erally speaking. humanachievementsof lastingculturalor ethical significance.(b) Human Solidarity.19 on Wed. LIII.or interests. particularlythe "administration fulness"determining justice".9 Now Radbruch tells us that somethinglike an "irreducible antinomy"exists betweenthese threebasic goods or values.motives. which constitutesthe of justice". we need a furtherconcept or principle.abstractlyconceived. (b) CollectiveValues. The ultimatevalue.equals to defineequality shouldbe treatedas equals.122. or to be servedby.36 THE PHILOSOPHICAL REVIEW [VOL. Now it is quite evidentthat the highest "ethical good". the supreme ethical value. thatis. That such a conceptdiametricallyopposes the principleof abstractJusticeand Equality needs no comment. It merelydenotes a "transpersonal"notion of a "general Purposeof the law.such as the "cause of freedom". since it requires merelythat. For 'By "work" Radbruchmeans the culturallyimportantand significant human achievementsas well as what mightbe called the "great causes" of humancivilizationand its history. Only throughthisIdea are we able to developthe concept of law.to achieve more thanone at the same time.These different For it is impossible. It fails. as such.

15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions .From thepurelyindividualistic standpoint. "Collectivevalues" know only of one formof law. "Collectivevalues".No. by means of which the "national welfare" is secured. however.122.however. For the individualist.my country".the "cause of art" (art forart's sake).At the same time.are solely concernedwith collective or "social" interestsand ends at the expense of all individual interestsor personal rights. center around an "impersonalobjectivity". maintaining that they are themselvesthe only true and worthy"objective causes". To thesethreevalues correspondthreebasicallydifferent philosophical standpointsor attitudes: (a) the individualistic. and the like. the "great causes" of the universal historyof mankind. 1.(b) the "collectivistic". such as the "cause of freedom".] PHILOSOPHY OF LAW OF G. around the "personal dignityof man". on the other hand. RADBRUCH 37 should our philosophyexclusivelyrevolvearound the conceptof "individual (or personal) value".The "individualist" considers all "work values" as well as "collective (social) values" as subordinatedto the individualinterest.19 on Wed. His battlecryrings out. His particularslogan is "liberty"and "free selfassertion"."privatelaw" above "public law".law and State are but a relationship between differentindividuals. Moralityor civilizationis to him a mere instrumentof the State and the State power.around great "transpersonal achievements"or ideal "causes". that is. the "cause of science". The "collectivist".these "collective values" implya completedenial of all "work values".The "transpersonalist" professesthatall individualas well as "collective"or social values are servingthe "workvalues".we wouldplace individualinterestsand individual rightsabove all otherinterests. consequently. "the Nation".To him all legal institutionsrest upon contractand mutualagreement. the "public law".and.240. It is obvious that such "work values" ignore in their "objectivity"all personalinterestsas well as theindividualhimself.and (c) the "transpersonal"viewpoint.The "collectivist"considers This content downloaded from 190. "Work values".making thus all "collectivevalues" and "work values"' mere instrumentalitiesof the individualor personalvalues. "rightor wrong. regards individual values and "work values" as subservient to the "collectivevalues".His slogan is "human civilizationand progress".the legal orderis justifiedonlyas a means to safeguard individual rights.

. The "transpersonalist". of a giventimeand place.and the resultingparticulartreatmentof each singlecase. But even the conceptof purposefulness or purposemanifestsitselfas a relativeconcept. The questionconcerningthe specificcontentsof the law. shoulditbe impossibleto enunciatein a definite and posi?This conceptof Certaintyand Securityalso involvessuch notionsas unity.38 THE PHILOSOPHICAL REVIEW [VOL. The terms "certainty"and "security"fully disavow the relativisticnotionsinherentin the conceptsof Justice. and continuity of the "processof law" as well as of the "administration of justice".240. In order to give law a truly definiteand reliable workingbasis Radbruch introduces.Certaintymeans "Positivity"in statingwhat is "rightand just accordingto existingand valid legal norms". a third concept.the concept of Security and Certainty. law and State an "organism"above the individualpersonand his interests.This statementis to be made by the very authoritywhichposits these norms. may be fullyresolvedonlyby reference to theend of thelaw. believes thatthe onlypossiblelink joining men or groupsof men consists in a commonendeavorto achieve a common"objectivecause" or work.politics. This realizationof the relativityof the purposeor end of thelaw forcesRadbruchto admitthatno sound and stable legal order could rest on such an unstablefoundation. Thus the "Idea of Justice"actuallycontains two importantelements(namely. and is.Equality.being in the last analysis always related to and determinedby a historically given developmentof the law. philosophy.therefore.finally.an "organism".122.and economics. and Purposefulness.in which this same individual merely"partakes" in the mannerin which the part is relatedto the whole. The abstract"Idea of Justice(or Equality)" proves itselfinin our search for the more specificcontentsof what is sufficient called "rightand just".For.on the other hand.1 which becomes part of the general "Idea of Law and Justice".the "Idea of Equality" and the "Idea of Purposefulness").identity.and whichis also capable of enforcingthemshouldtheneed arise.a conceptof "rightand just law".19 on Wed. the problemof the equalityor inequalityof individuals or individualinterests.such as the "cause of the Church". 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions . particularlyif we keep in mind that any legal order is supposed to regulateand controlcertainaspects of human life above all mere partisaninterestsor purposes. LIII. therefore. This content downloaded from 190.

Equality as well as "Justiceaccordingto particularends involved" conflictswith the principleof Certaintyand Security. This content downloaded from 190. and this relativityextends also to the relationshipexisting between these threeprinciples. The conceptof Securityor Certainty.No.thenitmustbe at least possibleto statewhat law or laws are actuallyvalid as well as enforced. can never fullybe reconciled. for it is impossibleto reducethemto a singlelogicalcalculus. and. It is quite evidentthat Justice (or Equality). 1. Furthermore.doubtfulpracticalvalue. Certainty(or Security).while havingall the characteristicsof an absoluteprincipleare neverthelessonlyrelativeto the difference possible politicalor philosophicalstandpoints-.and as such quite oftenof highly.] PHILOSOPHY OF LAW OF G.and the "Idea of Purposefulness".or economicdiscussion.The franklyadmittedrelativity of theend of thelaw.such as the "titleby prescription". or certainnew excludingan otherwise"just claim". On the otherhand. togetherwith the undeniablefact that the conceptof Justiceis. from a practicalpoint of view. createdin "violation"of the principleof the "Positivity"of thelaw." " In this connectionRadbruchpointsout that the requirements of Certaintyand Securitymighteven obstructthe principleor postulateof the of the law.122. Purposefulness. In the interestof a truly workablecertainty of the law suchprovisionsas the "statuteof limitation".universal in its application. -personalrights. even at the expense of the Ideal of Justice. for instancewherea time-honored "positivity" custombecomes a vital part of the "administration of justice".actual existenceand the certaintyof a definitelegal orderis of greaterpracticalimportancein settlingany legal problemthan all philosophizingabout the nature and meaningof abstractJustice and Purposefulness. RADBRUCH 39 tive mannerthe ultimatepurpose of the law or to proclaimwith absolutecertainty thetruenatureof abstractJustice.the "Idea of Justiceand Equality".Equality contradictstheverynotionof purpose. the very manifestationor realizationof the "Idea of Justice"largely dependsupon the actual workingsof a concretelegal order. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions . while "Justice according to particular ends (or interests) involved" primarilythriveson inequalityand individualization.Justiceis primarilya purelyformalisticand abstractconcept.since Certaintymeans straightand simple "Positivity"and practicability. never fullyabove philosophical.For it is an abstractionand always worksby means of abstractionsand generalizations.inducesRadbruchto admit that the.or the workingsof "Justiceaccordingto individualends or interests".19 on Wed.have been instituted. political.240.

It is not permissibleto limitthe functionof Equality to a mere formalistic definition as to whether a certainlegal preceptis in accordancewithour abstractnotionor ideal of "rightand just". .and which have as such no furtherpurpose than to serve the principleof Certaintyand Security. effects. No sound reason could be imagined why we should not driveon theleftside.forinstance.for example. official.however. This content downloaded from 190.For a purely"sociological"handling of all the problemsof the law would violate the "Idea of Justice and Equality" as well as the principleof Certaintyand Security.and positiveCertaintyand Security.122. Neither can we limitthe significanceof the principleof Certaintyor Securityso as to indicatewhethera legal preceptcould be called "valid" in the sense of positivelaw and consequentlyenforceable by virtueof its being enacted as an enforceablenorm. LIII. while the principleof Certaintyand Securityproducesa "posi- tivistic"and conservative. Any attemptto reconcilethe obviousantinomybetweenabstract Justiceor Equality. But every legal order containsalso a body of provisions which are merelythe resultof a pronounced"drive" for general certainty. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions . or whywe should"discriminate"againstthe 'The abstract "Idea of Justice" in its psychological a develops. Admittedly.This principle must be modifiedand restricted.such a precept. a great numberof legal preceptsare exclusively dictatedby the principlesof Equality and Certainty.240.by assigningto each of these three principlesa particulartask in the workingsof the law. even reactionary type.19 on Wed. shouldhe ever becomea government wouldbe theidealof everybureaucracy. by the principle of abstractJusticeand Equality. is bound to utterfailure. themajorityof the various contentsof the law and of the different provisionsof any definitelegal orderis determined -at least accordingto practical experience-by the principleof "Justiceaccordingto individualends or interests".'2For all threeprinciplestogetherdeterminethe full and true meaningof the law.40 THE PHILOSOPHICAL REVIEW [VOL.Of such a kind.is the statutecompellingus to drive to the rightof the road. ratheridealisticand progressivetypeof jurist.who mighteven turninto a zealot. "Justiceaccordingto individualends or interests". or to restrictto "Justiceaccordingto individualends" the definitionas to whetherthe specificcontents of thispreceptfulfillour expectationof what oughtto be.who.would be the so called "equalitybeforethe law". On the otherhand.

practical decision in all relevantmatters.For.and not endlesstheoreticaldiscussion.The specific content of a concrete norm denotes somethingthat "ought"to be done. according to him.Differenttimes and different political.it cannotbe denied that somethinglike an irreducibleantinomyexists betweenthe three.No. Nevertheless. Any particularlegal norm expresses in its concretenessand actualitythe specificcontentof a "command".assure to work and will-powerabsolute supremacyover mere philosophicalspeculation.in otherwords.122.The finalsolutionof all philosophicalquestions and problemsrests with our work and practicalresolves. In its functionalessence. which he considersone of the inescapableshortcomings of all philosophyin general.but he denies our abilityever to solve themin a completelysatisfactorymanner.But no system ever could or would operateapplyingjust one principle. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions .19 on Wed.thenormis always "deontological".Actionalone.1 PHILOSOPHY OF LAW OF G.It is his practicalbeliefthatlife as such would be utterly futileand insignificant withoutantinomies. 1.economic.that is action.240. the task of philosophyis not to take the final.For these antinomies. The aforesaid three principlestogetherdominate the whole problemof the law as well as the problemof the "administration of justice".Radbruch insists that we are well able to state all these antinomies in their full significance. irreducibleas far as any theoryis concerned. Philosophy. save the demands of general certaintyand security.should only make us aware that. we are always facing grave and far reaching decisions.an "Ought" as well as a compulsion. RADBRUCH 41 left.withinthewiderscope of thelaw and of any legal order.the questionarises whetherthe preceptsof general Securityand Certaintyare always compatiblewiththeprinciplesof abstractJustice and "Justiceaccordingto individualinterests".divorcedfromthe historicalor psychologicalprocess and backgroundof its origin.like all theory.out of our hands.It is a remarkableindication of his philosophicalserenitynot to worrytoo much about this apparentinabilityof ours.can cope with this highlyproblematicalsituation.However. becomesunable.how- This content downloaded from 190.or philosophicalsystemsmight be inclinedto overemphasizeone of these principles.such as thatof Hans Kelsen.Any 'pure theoryof law' or any systemof pure legal 'Oughts'. it denotes.in whateverwe do.

collisionbetweenthe normsof different Now in order to reach any practical and practicallyvaluable normsof different decisionin case of a collisionbetweendifferent "orders". by all thosewho are "governed"by it or generallyand effectively any enforcedby sanctions. fromthe domain of the "Ought" or "meaning"intothe world of the "Is". The positivistic"validity"of the law restsmerelyin thegeneral interestwhichall membersof a given orderhave in the actual observanceas well as actual enforcement of a definite legalorderin compliancewiththeprincipleof Security and Certainty. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions .42 THE PHILOSOPHICAL REVIEW [VOL.Radbruch does not intendto renew the traditionalfictionof the so called "original compact".240. (Machttheorie). The relativistic trendof Radbruch'sphilosophyexcludesa priori By "Legal Positivism"we mean thata law or normis "valid" because it has beenpositedby some one authorizedto do so or capableof enforcing the law. LIII.14But in order to be really effective. infinite"Ought".the economic order-but also to reach any definiteconclusion in case of a orders. of the law by applyingsanctionsmustalso meetthe enforcement requirementsof "general acceptability"by those against whom the differentnorms are enforced.not onlyto cope withthe relationof the law (or legal order) to othertypesof "orders"-such as themoralorder. This content downloaded from 190. 19I4.Compare Llewellyn's"Law is everything done withauthority". Thus "Legal Positivism"constitutesa form of "voluntarism" groundsthe "validity"of the law in the fact that it has which ultimately been "willed" by a competentauthority. we have to descend.'5By using the term "general acceptability"and by groundingthe "deontological"nature or "validity"of the positivelaw in this "generalacceptability". which always operates with the pure and. To to JellinekRadbruchowes a great debt. and a returnto Realism or Positivism.19 on Wed. ever.13Radbruch'snew "positivistic"approachstatesthatany legal ordermay be called a truly"valid" orderif it is actuallyable to functionand and is eithergenerallyaccepted operateby its veryefficaciousness.accordingto Radbruch. ' This would be a "historico-sociological" or theoryof the interpretation "validity"of a given legal order. Radbruch'sprincipleof Certaintyand Securitycontainsmany problems whichhad beenpointedout by Jellinek.122. the firsteditionof his Grundzuegeder Rechtsphilosophie. This marks a definiteturningaway fromthe basic principlesof Kantian "Idealism".as he admitsin the introduction Leipzig. This theoryusuallyappears eitherin or in the the formof "acceptanceby convention"(Anerkennungstheorie). formof "absolutesovereignty" ' Compare Jellinek'stheory of "social-psychological guarantee".

proves his title to "rule" by this legal order. For it is of the veryessenceof all legal relativismto call on a definiteand effective "power" which decides on a certaindefinitephilosophywithout. 1. logic.Whoever is able successfullyto establishand maintaina definitelegal order. however. Thus it becomesimpossibleto deduce fromsuch presuppositions the objective "validity"of the positivelaw.curtailingthe freedomof philosophicalopinion.122. some one must at least definitely state what the positive. But by merely stating this we do not assert any knowledgeof what is "rightand just" in an absolute sense. For onlyby promisingcertaintyand securitycan a governmentestablishits This content downloaded from 190. It is true that everylawgivermakes a definite. It must be solved primarilyby determination and by the actual and effective power to carryout this determination. or science alone.thatis. but this is a task which cannot be solved by reason.] PHILOSOPHY OF LAW OF G. He is neverthelessunable to end the battleof philosophicalopinions. A "transpersonalistic"instance.But he cannot. To avoid chaos and anarchy.The trulypositivisticpromiseof maintaining"peace and order" usually constitutesthe firstdeclaration thatany governmentissues when comingintopower.therefore.has to set up and enforcethe law. and what is "rightor just"-accordingto the existing law or laws.philosophythe basis of a definitepositivelegal order. A positive legal order must be enacted and enforced by a "power" which can assert itselfby its practiceagainst all other forcesin order to end the politicalstrifeand struggle. proclaim this his own philosophyas the onlyand. RADBRUCH 43 any cognizableabsoluteand objectivepurposeof any legal order. the various discussions. and thus bring about certaintyand security.and the ultimategrounds.No.who can but dissent among themselvesas to the ultimatepurpose of the law. the lawgiver may very well end the struggleof the different politicalparties for politicaland ideologicalpower.By enunciatingin a positivemannerwhat the enforcedlaw actually is.thepurpose.the orderingof certainphases of humanconductas well as of the coexistenceof individualscannotbe leftto the personal opinion of these same individuals.usually his own. therefore. accordingto Radbruch's relativisticpoint of view. about the nature.absolute truth. Since no one can define what absolute Justice is.of the "validity"of the law.19 on Wed.240.actuallyenforced or "valid" law is. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions .

thefirstone beingalways "peace and order".For all threeprinciplesare of basic importancefortheproblemof law. LIII.law is always what has been This content downloaded from 190.For only thus can the certaintyand the generalsecurityof the law be guaranteed. Positive law may be considered"valid" not because it can successfullybe enforced. To the Courts.122.A legitimategovernmentis always that "institution" whichcreatesand maintainsa definiteformof "peace and order".a provisionviolatingcertainindividualrightsthat would be "just" according to the principleof abstractJustice. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions . for. however.Justice (or Equality) constitutes thesecondmostimportant problemof the law. positivisticlegitimacy.cannotbe considered by legalphilosophyas thelast resortor foundationof the"validity" of the law.19 on Wed. certainty aboutthelaw by whichit operatesas well as certaintyabout the ways in which it administersthis law.the principleof Certaintyand Securityis only a value.he does not by any means completelydeny the significance of abstractEquality (or Justice) and "Justiceaccordingto individualends and interests".Radbruchbelieves thatin mostinstancestheindividualconscienceis moreaverse to a total disregardof the existinglegal order than to an occasional sacrificeof one's personal convictionsabout the natureof "right and justice". This value.like the abstract"Idea of Justice"or the "Justice accordingto individualends or interests".240.the programof "peace and order". From a purelypractico-realistic or pragmaticpointof view.i. Although the positivistprefers-the principle of Certaintyand Security. For Certaintyand Securityformthe "basic norm"of positivelaw and of a positivisticlegal philosophy.Generallyspeaking.. But thereis no definitewayexcept-one's own conscience-to determinescientifically which of the threeprinciplesshouldbe givenpreference.44 THE PHILOSOPHICAL REVIEW [VOL. Radbruch openly admits that the principleof Certaintyand Security.The positive"validity"of a definitelegal order rests upon its certainty and upon thegeneralsecuritywhichit promotes.but if it can successfullybe enforced.might even demandor prove the necessityand "validity"of an "unjust" legal provision.e.whichserve the maintenanceand administration of a definite"enacted" legal order.it is betterto sufferan occasionalact of injusticethanto suffer a permanentstate of legal anarchy.

] PHILOSOPHY OF LAW OF G. ministration In this connectionRadbruch touches the tragic dilemma in which the Courts quite often findthemselves.For this principle of a definite(positive) legal insistson preservingthe inviolability order.punishment.to committhe veryoffencefor whichhe is about to be punished. who realizedthe "injustice" of any attempton his part to fleefromtheconsequencesof his actingaccordingto thedictates of his own moral convictions-convictions. Moreover. even should this law be conauthoritatively membersof the Courts hold as their traryto what the different personal conviction.On theotherhand. if necessary. "just" according to the principleof Certaintyand Security.Courts are not to determinewhat is "ideally rightand just". This is the finaltragedyas well as the moral greatnessof Socrates.thesense of dutymayhave impelledtheman facing the Court.unjust" fromthe standpointof ideal Justice-has a verydefinite purpose.And by its mereexistenceand adthelaw fulfillsthispurpose. that of bringingabout certaintyand securityas far as human relationsare concerned. thatis. 15 Jul 2015 22:05:08 UTC All use subject to JSTOR Terms and Conditions . ANTON-HERMANN CHROUST This content downloaded from 190. through which he broughton himselfthe "just" sanctionsof a definite to maintain"peace legal orderwhichhe respectedas an institution and order". 1. but merelywhat is "just" accordingto a definite legal orderand its variousprovisions.122.and which is but the resultof the basically antinomisticproblemsinherentin the law.240. in accordancewith the principleof Certaintyand Security.Courtsmighthave to pass sentenceon a man whose action was promptedby his mostsacredconvictionof whathe considered his moral duty.19 on Wed.the same sense of duty mightagain force theoffenderto acceptthesentenceas "just".however.Here the sense of duty demandson the one hand thatthe Courtsimposesentenceand. RADBRUCH 45 laid down as such. For.For even an "unjust" law.No.