Statutory Lawlessness and Supra-Statutory Law (1946)

Author(s): Gustav Radbruch, Bonnie Litschewski Paulson and Stanley L. Paulson

Source: Oxford Journal of Legal Studies, Vol. 26, No. 1 (Spring, 2006), pp. 1-11
Published by: Oxford University Press
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 JournalofLegal Studies,Vol. 26, No. 1 (2006), pp. 1-11
Oxford
doi:10.1093/ojls/gqi041

Lawlessness
Statutory and
Law (1946)*
Supra-Statutory
GUSTAV RADBRUCH

TRANSLATED BY BONNIE LITSCHEWSKI

PAULSON AND STANLEY L. PAULSON

I.
By means of two maxims,'An orderis an order' and 'a law is a law', National
Socialism contrivedto bind its followersto itself,soldiers and juristsrespec-
tively.The formertenetwas alwaysrestricted in its applicability;soldiershad no
obligationto obey ordersservingcriminalpurposes.' 'A law is a law', on the
other hand, knew no restrictionwhatever.It expressed the positivisticlegal
thinkingthat, almost unchallenged,held sway over German juristsfor many
decades. 'Statutorylawlessness'was, accordingly,a contradictionin terms,just
law' was.2Today, both problemsconfrontlegal practicetime
as 'supra-statutory
and timeagain. Recently,forexample,the Siiddeutsche Juristen-Zeitung published
and commentedon a decisionoftheWiesbadenMunicipal Court [handeddown
in Novemberof 1945], accordingto whichthe'statutesthatdeclaredtheproperty

* 'GesetzlichesUnrecht undiibergesetzliches Recht',first

publishedintheSiiddeutsche 1 (1946)
Juristen-Zeitung
105-8,repr.inter aliainGustavRadbruch, Gesamtausgabe (Collected
Works), 20 vols,Arthur Kaufmann (ed.),vol.
III, Winfried
3: Rechtsphilosophie Hassemer(ed.) (Heidelberg:C. F. Miiller,1990)83-93,282-91(editor's notes),
and in Radbruch, Rechtsphilosophie,Studienausgabe,RalfDreierand StanleyL. Paulson(eds) (Heidelberg: C. F.
2nd
Milller, edn,2003) 211-19, 234-5 (editors'notes).The translators
have drawn on theoriginalprinting of
1946;ona reprinting inGustavRadbruch, 4th-7th
Rechtsphilosophie, edns,ErikWolf(ed.),and8thedn,ErikWolf
andHans-Peter Schneider (eds) (Stuttgart:K. F. Koehler,1950-73);andon a partial, unpublished translationby
Lon L. Fuller,whichappeared, inter
alia,in his'Supplemental Readings inJurisprudence, 1958-9'(Harvard Law
School).The translation hereis published withthekindpermission ofMrs.DorotheaKaufmann (Munich).The
translatorswouldliketothank RalfDreier(G6ttingen),ThomasMertens (Nijmegen), andJulian Rivers(Bristol)for
very comments andsuggestions.
1 helpful Criminal Code of1940,? 47.
Military
2 [Translating'Unrecht' as 'lawlessness'
here-notas 'injustice','wrong',or'evil',amongotherpossibilities-and
'Recht'as 'law'-not as 'justice'or'right'-underscores thelegalcontext ofthesharpdistinction Radbruch draws
between thetwoterms. Better the'positivistic
reflecting he mentions,
legalthinking' thephrasesthemselves might
read'statutory (orpositive-law) lawlessness'
and'supra-statutory(orsupra-positive) law'.]
@ The Author 2006.Published byOxford UniversityPress.Allrightsreserved.Forpermissions,
pleasee-mail:journals.permissions@oxfordjournals.org

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2 JournalofLegal Studies
Oxford VOL.26
of the Jews to be forfeitedto the State were in conflictwith natural law, and null
and void the moment they were enacted'.3

II.
In the criminal law, the same problem has been raised, particularly in debates
and decisions within the Russian Zone.4
1. A justice department clerk named Puttfarkenwas tried and sentenced to life
imprisonmentby the Thuringian Criminal Court in Nordhausen forhavingbrought
about the conviction and execution of the merchant G6ttig by informingon him.
Puttfarkenhad denounced G6ttig forwritingon the wall of a WC that 'Hitler is a
mass murderer and to blame for the war'. G6ttig had been condemned not only
because of this inscription,but also because he had listened to foreignradio broad-
casts. The argument made at Puttfarken'strial by the Thuringian Chief Public
Prosecutor,Dr. FriedrichKuschnitzki,was reportedin detail in the press.5Prosecutor
Kuschnitzki firsttakes up the question: Was Puttfarken'sact a violation of law?

The defendant'scontentionthathis beliefin National Socialismhad led himto inform

on G6ttigis legallyinsignificant.Whateverone's own politicalconvictions,thereis no
legal obligationto denounce anyone. Even duringthe Hitler years, no such legal
obligationexisted.The decisivequestionis whetherthedefendantacted in theinterests
of the administrationof justice,a questionpresupposingthatthejudicialsystemis in a
position to administerjustice. Fidelityto statutes,a strivingtowardjustness,legal cer-
tainty-theseare therequirements of a judicial system.And all threeare lackingin the
politicizedcriminaljusticesystemofthe Hitlerregime.

Anyone who informedon anotherduringthose yearshad to know-and did in fact

know-that he was deliveringup theaccused to arbitrary
power,not consigninghimto
a lawfuljudicialprocedurewithlegal guaranteesfordetermining
the truthand arriving
at a just decision.

Withrespectto thisquestion,I subscribefullyto theopiniongivenby ProfessorRichard

Lange, Dean oftheLaw Facultyof theUniversity ofJena.So well knownwas the situ-
ation in the Third Reich that one could say with certainty:Any person called to
account in thethirdyearofthewarforwriting'Hitleris a mass murdererand to blame
forthiswar' would nevercome out alive. Someone like Puttfarken certainlycould not
have had a clearviewofjusthowthejudiciarywould pervertthelaw,but he could have
been sure thatit would.
No legal obligationto informon anyonecan be drawnfromsection 139 of the Crimi-
nal Code either.It is truethat,accordingto thisprovision,a personwho obtainsrelia-
ble informationof a plan to commithightreasonand failsto givetimelynoticeof this

3 Heinz Kleine, in theSiiddeutsche 1 (1946) 36.

Juristen-Zeitung
4 [Post-warGermanywas dividedby the occupyingpowersintofourzones-Russian, French,British,and Ameri-
can-for purposesofAlliedadministration of the devastatedcountry.]
Volk(Weimar),10 May 1946. [In theimmediatepost-warperiod,official
5 Thiiringer reportsofjudicialproceedings
werenot generallyavailable,and so Radbruchquotes extensively herefromnewspaperaccounts.]

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SPRING
2006 Lawlessness
Statutory and Supra-Statutory
Law (1946) 3
plan to the authoritiesis subject to punishment.It is also true that G6ttighad been
condemnedto deathby theAppeal Court at Kassel forpreparing tocommit hightreason.
In a legal sense,however,therehad certainlybeen no such preparationto commithigh
treason.Afterall, G6ttig's brave declarationthat 'Hitler is a mass murdererand to
blame forthe war' was simplythe naked truth.Anyonedeclaringand spreadingthis
truththreatenedneitherthe Reich nor its security,but sought only to help rid the
Reich of its destroyerand thusto rescue it-in otherwords,the oppositeof hightrea-
son. Scruples of legal formmust not be allowed to obfuscatethisplain fact.Further-
more, it is at least questionablewhetherthe so-called Fiihrerand Chancellor of the
Reich should ever have been regardedas the legal head of state at all, and therefore
questionablewhetherhe was protectedby theprovisionson hightreason.In anyevent,
the defendanthad not reflectedat all on the legal implicationsof informingon G6ttig,
and, givenhis limitedunderstanding, he could not have done so. Puttfarken himself
has neverdeclared thathe informedon G6ttigbecause he saw G6ttig'sinscriptionas
an act ofhightreasonand feltobligedto reportit to the authorities.6

The Chief Public Prosecutor then addresses the question: Did Puttfarken's
act render him culpable?

Puttfarkenessentiallyadmits that he intendedto send G6ttigto the gallows, and a

seriesofwitnesseshave confirmedhis intention.Thisispremeditated murder,according to
section211 of theCriminalCode. That it was a court of the Third Reich thatactually
condemnedG6ttigto death does not argueagainstPuttfarken's havingcommittedthe
crime.He is an indirect Granted,theconceptoftheindirectcommissionofa
perpetrator.
crime,as it has been developedin Supreme Court adjudication,usuallylooks to other
cases, chieflythose in whichthe indirectperpetrator makes use of instruments lacking
in will or the capacityforaccountability.No one ever dreamed thata German court
could be the instrumentof a criminal.Yet today we face just such cases. The Putt-
farkencase willnotbe theonlyone. That the Court observedlegalformin declaringits
pernicious decision cannot argue against Puttfarken'sindirectcommission of the
crime.Anylingeringhesitancyon thisscoreis clearedawayby article2 oftheThuring-
ian Supplementary Law of 8 February1946. Article2, in orderto dispel doubts,offers
the followingrenditionof section47, paragraph1, of the CriminalCode: 'Whoeveris
guiltyof carryingout a criminalact, eitherby himselfor throughanotherperson,even
if that otherperson acted lawfully,shall be punished as perpetrator'.This does not
establishnew, retroactivelyeffectivesubstantivelaw; it is simplyan authenticinterpre-
tationof criminallaw in forcesince 1871.7

Aftera carefulweighingofthepros and cons, I myselfam of the opinionthattherecan

be no doubtthatthisis a case ofmurdercommittedindirectly. But let us suppose-and
we musttakethiscontingency intoaccount-that the Courtwereto arriveat a different

6 Ibid. [Emphasisin original.]

7 In his editionof the CriminalCode in its Thuringianrendition(Weimar:LandesverlagThiiringen,1946), 13,
Prof.RichardLange statesthat'in those cases wheretheperpetrator has misusedthe judicial systemto pursuehis
own criminalpurposes (deceptionduringlitigation,politicaldenunciation),much uncertainty has arisenabout the
concept ofthe indirectcommissionof a crime.Therefore,article2 of the SupplementaryLaw of 8 February1946
makesclear thatthe indirectcommissionof a crimeis punishableeven ifthe instrument thatis employedhas itself
acted lawfullyor in compliancewithits officialduty.'

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4 JournalofLegalStudies
Oxford VOL.26
opinion.What would come intoquestionthen?If one rejectstheviewthatthisis a case
of murdercommittedindirectly, then one can hardlyescape the conclusionthatthe
judges who condemned Gittig to death,contraryto law and statute,are themselves
to be
regardedas murderers.
The accused would thenbe an accomplice to murderand punisha-
ble as such. Should thisview,too, raiseseriousmisgivings-andI am not unmindfulof
them-there remainstheAllied ControlCouncil Law No. 10 [of20 December 1945].
Accordingto article2, paragraph1(c),8 the accused would be guiltyof a crimeagainst
humanity.Withinthe framework of thisstatute,the questionis no longerwhetherthe
nationallaw of the land is violated.Inhumanacts and persecutionforpolitical,racial,
or religiousreasonsare,withoutqualification,subjectto punishment.Accordingto art-
icle 2, paragraph3,9 the criminalis to be sentencedto such punishmentas the court
deems just. Even capitalpunishment.'o

I mightadd thatas a juristI am accustomedto confiningmyselfto a purelylegal evalu-

ation. But one is alwayswell advised to stand,as it were,outsidethe situationand view
it in thelightof ordinarycommonsense. Legal techniqueis, withoutexception,merely
the instrumentthe responsiblejuristuses in order to arriveat a legallydefensible
decision.11
Puttfarkenwas condemnedby the ThuringianCriminalCourt not as an indi-
rectperpetratorof the crime,but as an accompliceto murder.Accordingly,
the
judges who condemnedG6ttigto death, contraryto law and statute,had to be
guiltyof murder.12

8 [Control Council Law No. 10, article2, paragraph 1(c): 'CrimesagainstHumanity.Atrocitiesand offenses,
includingbut not limitedto murder,extermination, enslavement,deportation,imprisonment, torture,rape, or
otherinhumaneacts committedagainst any civilianpopulation,or persecutionson political,racial or religious
groundswhetheror not in violationofthedomesticlaws of thecountrywhereperpetrated'.]
[9Ibid, article2, paragraph3: 'Anypersonsfoundguiltyof any ofthe crimesabove mentioned[in article2, par-
agraph 1] may upon convictionbe punishedas shall be determinedby the tribunalto be just. Such punishment
mayconsistof one or moreofthe following:
(a) Death.
(b) Imprisonment forlifeor a termofyears,withor withouthard labour.
(c) Fine, and imprisonment withor withouthardlabour,in lieu thereof.
(d) Forfeiture ofproperty.
(e) Restitutionofpropertywrongfully acquired.
(f) Deprivationof some or all civilrights.
Anypropertydeclaredto be forfeited or the restitution
of whichis orderedby theTribunal shallbe deliveredto
the ControlCouncil forGermany,whichshall decide on itsdisposal.']
10 Criminal
liabilityaccordingto Allied Control Council Law No. 10 is not discussed in what follows,for
German courtsdo not have primaryjurisdictionhere. See article3, paragraph1(d). ['Each occupyingauthority,
withinits Zone of Occupation,shall have the rightto cause all personsso arrestedand charged,and not delivered
to anotherauthority as hereinprovided,or released,to be broughtto trialbeforean appropriatetribunal.Such tri-
bunal may,in the case of crimescommittedby personsof German citizenshipor nationalityagainstotherpersons
of German citizenshipor nationality,or statelesspersons,be a German Court, if authorizedby the occupying
authorities.']
"
ThiiringerVolk,above n 5 [emphasisin original].
12Anotherproceedinginvolvingdenunciationtook place beforethe Munich denazificationpanel, againstthose
who had informed on theScholls. [SiblingsHans and Sophie Scholl,leadingmembersoftheWhiteRose, a resistance
group at the Universityof Munich, were distributing anti-Nazileafletswhen theywere arrestedon 18 February
1943. Condemnedto deathon 22 February1943, theywereexecutedthesameday.Hans was 24 yearsold, Sophie21.]
Denazificationis levelledagainsta politicallyand morallyinferior sentiment,and need not enquireintothe legality
or legitimacyor the culpabilityof puttingthatsentimentintopractice.It followsthenthata line is drawnbetween
denazificationand criminaljurisdiction,but it also followsthat the two overlap. Compare article 22 of the
Befreiungsgesetz[Law forLiberationfromNational Socialism and Militarism,5 March 1946].

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SPRING 2006 Lawlessness
Statutory Law (1946)
and Supra-Statutory 5
2. In fact, the Chief Public Prosecutor of Saxony, Dr J.U. Schroeder,
announces in the press the intentionof enforcingthe principleof criminal
'responsibilityfor inhuman judicial decisions', even when such decisions are
based on National Socialiststatutes:
oftheNationalSocialiststate,on thebasisofwhichdeathsentences
The legislation
likethosecitedherewerepronounced,hasnolegalvaliditywhatsoever.
Act' [of24 March1933],
restson theso-called'Enabling
NationalSocialistlegislation
whichwaspassedwithout theconstitutionally
required two-thirds Hitlerhad
majority.
forcibly
prevented the Communist representativesfromparticipatingin the parlia-
mentary sessionbyhavingthemarrested, in spiteoftheirimmunity. The remaining
namely
representatives, fromtheCentreParty, werethreatenedbyNazi stormtroopers
(theSA) andthereby compelled tovotefortheemergency powers.13
A judgecanneveradminister justicebyappealing thatis notmerely
to a statute unjust
We appealto humanrights
butcriminal. laws,andwe appealto
thatsurpassall written
immemorial
theinalienable, lawthatdeniesvaliditytothecriminal ofinhuman
dictates
tyrants.
whohave
I believethatjudgesmustbe prosecuted
In lightof theseconsiderations,
handeddowndecisionsincompatible withthepreceptsof humanityand havepro-
nounced the death sentencefortrifles.'4

3. A reportcomes fromHalle that the executioner'sassistants,Kleine and

Rose, are condemned to death for activelyparticipatingin numerous lawless
executions.From April 1944 to March 1945, Kleine took part in 931 execu-
tions,forwhichhe was paid 26,433 RM. The condemnationofKleine and Rose
seems to be based on the Allied Control Council Law No. 10 (crimesagainst
humanity).'Both ofthe accused practicedtheirgrislytradewillingly, since every
executioner'sassistantis freeto abstainfromhis activityat any time,forhealth
reasonsor otherwise.'15
4. In Saxony again, the followingcase comes to lightin an articleby Chief
Public ProsecutorJ.U. Schroeder: A soldier fromSaxony, assigned to guard
prisonersofwar on theeasternfront,desertedhis post in 1943, 'disgustedbythe
inhumantreatment theyreceived.Perhapshe was also tiredof servingin Hitler's
army.'While on the run,he could not resiststoppingby his wife'sapartment,
where he was discoveredand was to be taken into custodyby a sergeant.He
succeeded, unnoticed,in gettinghold ofhis loaded servicerevolverand shotthe
sergeantin the back, killinghim. In 1945, the deserterreturnedto Saxonyfrom

13 Also requiringdiscussion here would be the extentto which the 'normativeforce of the factual' [Georg
Jellinek]makesvalid law out ofsystemsthatcome to powerbywayofrevolution.And mycolleagueWalterJellinek
has kindlypointed out that it would be inaccurateto suggestthatthe two-thirdsmajoritywas achieved only by
eliminatingthe Communists.
Rundschau(Berlin), 14 March 1946 [emphasisin original].On criminalresponsibility
4 Tiigliche forunlawful
Recht(Weimar:Panses Verlag,1946)
judicialdecisions,see also FriedrichBuchwald in his notablework,Gerechtes
at 3-8.
15LiberaldemokratischeZeitung(Halle), 12 June1946. [See above, n 8.]

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6 OxfordJournalofLegal Studies VOL. 26

Switzerland.He was arrested,and theofficeofthepublicprosecutorpreparedto

chargehimwithhavingmaliciouslykilledtheofficial.
The ChiefPublicProsecutor,
however,ordered his release and the abandonmentof criminalproceedings,
appealingto section54 of the CriminalCode and arguingthatthe soldier,hav-
ing acted out ofnecessity,was blameless,since
whatthejudiciarycalledlaw thenis no longervalidtoday.In ourviewof thelaw,
theHitler-Keitel
deserting armyis no misdemeanordishonouringthedeserter
andjus-
his
tifying punishment; he is not because
blameworthy ofit.16

With statutorylawlessnessand supra-statutory law serving,then,as pointsof

the struggleagainstpositivismis beingtakenup everywhere.
reference,

III.
Positivism,with its principlethat 'a law is a law', has in fact rendered the
Germanlegalprofessiondefencelessagainststatutesthatare arbitrary and crimi-
nal. Positivismis, moreover,in and of itselfwhollyincapable of establishing
the validityof statutes.It claims to have provedthe validityof a statutesimply
by showingthatthe statutehad sufficient power behind it to prevail.But while
power may indeed serve as a basis forthe 'must' of compulsion,it neverserves
as a basis forthe 'ought' of obligationor forlegal validity.Obligationand legal
validitymust be based, rather,on a value inherentin the statute.To be sure,
one value comes with everypositive-lawstatutewithoutreferenceto its con-
tent:Any statuteis alwaysbetterthan no statuteat all, since it at least creates
legal certainty.But legal certaintyis not the onlyvalue thatlaw must effectu-
ate, nor is it the decisive value. Alongside legal certainty,thereare two other
values: purposiveness17and justice. In rankingthese values, we assign to last
place the purposivenessof the law in servingthe public benefit.By no means is
law anythingand everything that'benefitsthe people'. Rather,whatbenefitsthe
people is, in the long run, only that which law is, namely,that which creates
legal certaintyand strivestowardjustice. Legal certainty(whichis characteris-
tic of everypositive-lawstatutesimplyin virtueof the statute's having been
enacted) takes a curiousmiddleplace betweenthe othertwo values,purposive-
ness and justice,because it is requirednot onlyforthe public benefitbut also
for justice. That the law be certain and sure, that it not be interpretedand
applied one way here and now, anotherway elsewhereand tomorrow,is also a
requirementof justice. Where there arises a conflictbetween legal certainty
and justice,between an objectionablebut duly enacted statuteand a just law

16 Tdgliche
Rundschau,above n 14, 9 May 1946.
"
[The German'Zweckmdf3igkeit' is oftentranslated,respectably,
as 'utility'or 'expediency'.In thepresentcon-
text,however,anysuggestionof utilitarianism would be misleading,as would theconnotationof opportunismthat
attachesto 'expediency'.'Purposiveness'has thevirtueof stemmingdirectlyfrom'purpose', therebyunderscoring
Radbruch'spoint.]

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SPRING 2006 StatutoryLawlessness
and Supra-StatutoryLaw (1946) 7
that has not been cast in statutoryform,thereis in trutha conflictof justice
with itself,a conflictbetween apparent and real justice. This conflictis per-
fectlyexpressed in the Gospel, in the command to 'obey them that have the
rule overyou, and submityourselves',and in the dictate,on the otherhand, to
'obey God ratherthan men'.18
The conflictbetween justice and legal certaintymay well be resolved in
this way: The positive law, secured by legislation and power, takes prece-
dence even when its contentis unjust and fails to benefitthe people, unless
the conflictbetween statute and justice reaches such an intolerable degree
thatthe statute,as 'flawed law', must yield to justice. It is impossible to draw
a sharper line between cases of statutorylawlessness and statutes that are
valid despite theirflaws. One line of distinction,however,can be drawn with
utmostclarity:Where thereis not even an attemptat justice, where equality,
the core of justice, is deliberatelybetrayed in the issuance of positive law,
then the statuteis not merely'flawed law', it lacks completelythe verynature
of law. For law, includingpositivelaw, cannot be otherwisedefinedthan as a
systemand an institutionwhose verymeaning is to serve justice. Measured
by this standard,whole portionsof National Socialist law never attained the
dignityof valid law.
The most conspicuous characteristicof Hitler's personality,which became
throughhis influencethepervadingspiritofthewhole ofNational Socialist'law'
as well, was a complete lack of any sense of truthor any sense of rightand
wrong.Because he had no sense of truth,he could shamelessly,unscrupulously
lend the ringof truthto whateverwas rhetorically effective at the moment.And
because he had no sense of rightand wrong,he could withouthesitationelevate
to a statutethe crudestexpressionofdespoticcaprice.There is, at thebeginning
ofhis regime,his telegramoffering sympathy to thePotempa murderers,19 at the
end, the hideous degradation of the martyrsof 20 July1944.20The supporting
theoryhad been providedby the Nazi ideologue, AlfredRosenberg,writingin
responseto the Potempa death sentences:People are not alike,and murdersare
not alike; the murderof the pacifistJaures21was properlyjudged in France in a
differentlightthanthe attemptto murderthe nationalistClemenceau;22forit is
impossibleto subjectthepatrioticallymotivatedperpetrator to thesamepunishment

'8 [TheHolyBible,King JamesVersion,1611, Hebrews 13:17 and Acts 5:29 respectively.]

19
[In 1932, fiveNazi stormtrooperswerecondemnedto deathby a courtin Upper Silesia forthebrutalmurder
of a Communistin the villageof Potempa. Under pressurefromthe Nazis, theirsentencewas commutedto life
imprisonment. AfterHitlercame to power,theywerepardoned.]
20 [Wehrmachtofficersand others,arrestedfollowingtheirfailedattemptto assassinateHitleron 20 July1944,
weretortured,viciouslyhumiliatedin a sham trial,and executed.]
21[JeanJaurs, an eloquentpoliticianknownas an intellectualchampionofsocialism,was assassinatedin Paris in
1914 by a fanaticalnationalist,Raoul Villain.Villainwas takenintocustodypendingtrial,but acquittedin 1919 by
jurorswho reportedly felthe was a patriotwho had done France a favourby gettingridof theantiwarJaur&s.]
22 [GeorgesClemenceau, a Radical Nationalistpolitician,survivedan attempton his lifemade in 1892 by a rival
politicalgroup,takingrevengeforhis repudiationof theirleader,General Boulanger,a convictedtraitorwho had
committedsuicide in 1891. The Boulangistwho failedin his attemptto assassinateClemenceau was unceremoni-
ouslyexecuted.]

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8 JournalofLegalStudies
Oxford VOL.26

as one whose motivesare (in the view of the National Socialists)inimicalto the
people.23The explicitintentionfromtheverybeginning,then,was thatNational
Socialist 'law' would extricateitselffromthe essentialrequirementof justice,
namely,the equal treatmentof equals. It therebylacks completelythe very
natureof law; it is not merelyflawedlaw, but ratherno law at all. This applies
especiallyto those enactmentsby means of whichthe National Socialist Party
claimedforitselfthe whole of the state,floutingtheprinciplethateverypolitical
partyrepresentsonlya partof the state.Legal characteris also lackingin all the
statutesthattreatedhumanbeingsas subhumanand denied themhumanrights,
and it is lacking,too, in all the caveats that,governedsolelyby the momentary
necessities of intimidation,disregardedthe varyinggravityof offencesand
threatenedthe same punishment,oftendeath, forthe slightestas well as the
mostseriousof crimes.All theseare examplesof statutory lawlessness.
We mustnot failto recognize--especially in lightof the eventsof thosetwelve
years--whatfrightful dangersforlegalcertainty therecan be in thenotionof 'stat-
utorylawlessness',in dulyenactedstatutesthatare deniedtheverynatureof law.
We must hope that such lawlessnesswill remainan isolated aberrationof the
Germanpeople, a never-to-be-repeated madness.We mustprepare,however,for
everyeventuality. We mustarmourselvesagainsttherecurrence ofan outlawstate
like Hitler'sby fundamentally overcomingpositivism,whichrenderedimpotent
everypossibledefenceagainsttheabuses ofNationalSocialistlegislation.24

IV.
That looks to the future.In the face of the statutorylawlessnessof the past
twelveyears,we must seek now to meet the requirementof justice with the
smallestpossible sacrificeof legal certainty.Not everyjudge actingon his own
initiativeshould be allowed to invalidate25statutes;rather,this task should be
reservedto a highercourt or to legislation.26 Such legislationhas alreadybeen
enactedin theAmericanZone, based on an agreementin the Council of German
States. It is 'Act No. 29, on the Redressof National SocialistWrongsCommit-
ted in the Administrationof CriminalJustice' [31 May 1946]. A provision
accordingto which'politicalacts undertakenin resistanceto National Socialism
or militarismare not punishable'surmountsthe difficulties, forexample,of the
previouslymentionedcase of the deserter.27On the otherhand, the companion
statute,'Act No. 22, concerningthe Punishmentof National Socialist Crimes'

23 Vilkischer
Beobachter
(Munich) [publicationof theNational SocialistParty],26 August1932.
24Buchwald,too, arguesfor law in his book, above n 14, at 8-16. And compareWalterRoemer,
supra-statutory
Siiddeutsche Juristen-Zeitung 1 (1946) 9-11.
25 ['Entwerten' (translated'invalidate'here) appears in the Wolf editionsof Radbruch's Rechtsphilosophie, but
'entwerfen'('to draft')is used in theoriginalprintingas well as in theCollectedWorks,above at asterisknote. In the
contexthere,'invalidate'is clearlythebetterfit.]
26See also Kleine's articlein the above n 3.
Suiddeutsche
Juristen-Zeitung,
27See ? II, case no. above.
4,

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SPRING 2006 Lawlessness
Statutory and Supra-Statutory
Law (1946) 9

[31 May 1946], applies to the otherthreecases discussedhere28onlyifthe deed

in questionwas criminalaccordingto the law at the timethe deed was done. We
have to considerthe criminality oftheseotherthreecases, then,accordingto the
law oftheGermanCriminalCode of 1871, withoutreference to thelaterstatute.
In the case ofthe informer Puttfarken,theviewthathe was guiltyofindirectly
committing murderis unchallengeableifhe intendedto cause G6ttig'sdeath,an
intentionhe realized by using as his instrumentthe criminalcourt and as his
means the legal automatismof a criminalproceeding.Accordingto the opinion
submittedby ProfessorLange,29such an intentionexistsespeciallyin thosecases
'in which the perpetratorhad an interestin gettingrid of the person he
denounced,whetheran interestin marrying his victim'swife,takingoverhis vic-
tim'shome or job, or an interestin revengeand thelike'.30Justas a personis the
indirectperpetratorwhere,forcriminalpurposes,he has abused his power of
commandoversomeone bound to obeyhim,so also is a persontheindirectper-
petratorwhere, for criminalpurposes, he has set the judicial apparatus into
motionby informing on someone. The use of the courtas a mereinstrument is
especially clear in thosecases where the indirectperpetrator could and did count
on a politicallytendentiousexercise of the officeof the criminaljudiciary,
whetherowing to the political fanaticismof the judge or pressureapplied by
thosein power.Suppose, on theotherhand, thattheinformer had no such crim-
inal intent,but intendedinsteadto providethecourtwithevidenceand leave the
restto the court'sdecision.Then theinformer can be punishedforcomplicity-
havingbroughtabout the convictionand indirectly the executionof the person
he denounced-only ifthe courtitself,in virtueof its decision and the carrying
out of its sentence,is guiltyof havingcommittedmurder.This was in factthe
routetakenby the courtin Nordhausen.
The culpabilityof judges forhomicidepresupposesthe simultaneousdetermi-
nationthattheyhave pervertedthe law,31since theindependentjudge's decision
can be an object ofpunishmentonlyifhe has violatedtheveryprinciplethathis
independencewas intendedto serve,the principleof submissionto the statute,
thatis, to the law. Objectivelyspeaking,perversionof the law existswherewe
can determine,in lightofthebasic principleswe have developed,thatthestatute
applied was not law at all, or thatthe degreeof punishmentimposed-say, the
death sentencepronouncedat the discretionof the judge-made a mockeryof
anyintentionof doingjustice.But whatof judges who had been so deformedby
the prevailingpositivismthattheyknewno otherlaw than enacted law? Could
such judges,in applyingpositive-lawstatutes,have had the intentionof pervert-
ingthelaw?And even iftheydid have thisintention,thereremainsone last legal
28 [See ? II, case nos 1-3, above.]
29[See ? II, case no. 1, above, and see above, n 6.]
30It is of course the heightof subjectivismin the doctrineof complicity,thatcriminalintent-in the formof a
'subjectiveelementof wrongdoing'-entailsin the personof the indirectperpetrator illegalitythatis lackingin the
personof thedirectagentor instrument.
31? 336 and ? 344 ofthe CriminalCode.

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10 OxfordJournalofLegal Studies VOL.26

defenceforthem,albeit a painfulone. They could invokethe stateof necessity

contemplatedin section 54 of the CriminalCode32 by pointingout that they
would have riskedtheirown liveshad theypronouncedNational Socialistlaw to
be statutorylawlessness.I call this defencea painfulone because the judge's
ethos oughtto be directedtowardjusticeat any price, even at the price of his
own life.
The simplestquestionto deal withis thatof the culpabilityof the two execu-
tioner'sassistantsforcarryingout death sentences.One cannot allow oneselfto
be influencedeitherby one's impressionof people who make a businessout of
killingotherhumanbeingsor by theboomingprosperity and profitability ofthat
business at the time. Even when theiroccupationwas stilla trade of the sort
passed down fromgenerationto generation,executionersrepeatedlytookcare to
excuse themselvesby pointingout thattheyweremerelycarryingout sentences,
and that the task of pronouncingsentencebelonged to the lord judges. 'The
lords and mastershold evil in check,and I carryout theirfinaljudgment.'This
1698 maxim,or somethingsimilar,appears frequently on the blades of execu-
tioners'swords.Justas a judge's pronouncementofthe death sentencecan con-
stitutemurderonlyifit is based on perversionofthe law, so the executionercan
be punishedforhis deed onlyifit fitsthe circumstancedescribedin section345
of the CriminalCode: the deliberatecarryingout of a punishmentthatshould
not be carriedout. Karl Binding,withreferenceto thiscircumstance,writesthat
the relationof the executionerto the enforceablesentenceis analogous to the
relationofthe judge to thestatute;his single,totaldutylies in itspreciserealiza-
tion. The executioner'sentireactivityis determinedby thesentence:
His actionis just,inso faras itcomplieswiththesentence. It becomesunjustinso far
as it deviatesfromthesentence.This amountsto a disavowalofthesingleauthority
thatmatters fortheexecution as such,andtherein liesthekernelofguilt.The delict[in
section345] ... canthereforebe characterized
as 'perversionofa sentence'.33
Verificationof the legalityof the sentenceis not incumbenton the executioner.
The suppositionof its illegality,then,cannot be damagingto him, nor can his
failureto resignhis post be chargedagainsthim as culpablenonfeasance.

V.
We do not share the opinion expressedat Nordhausen that 'scruples of legal
form'tend 'to obfuscate'the plain facts.Rather,we are of the opinionthatafter
twelveyearsof denyinglegal certainty, we need morethaneverto arm ourselves
withconsiderationsof 'legal form'in orderto resistthe understandabletempta-
tions thatcan easilyarise in everypersonwho has lived throughthoseyearsof

32[See also 5II, case no. 4, above.]

33Karl Binding,Lehrbuchdes Gemeinen Besonderer
DeutschenStrafrechts, Teil,vol. 2 (Leipzig: Engelmann-Verlag,
1stedn, 1905) 569.

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SPRING 2006 Lawlessness
Statutory and Supra-Statutory
Law (1946) 11

menace and oppression.We must seek justice,but at the same time attendto
legal certainty,forit is itselfa componentof justice. And we must rebuild a
Rechtsstaat, a governmentof law thatservesas well as possiblethe ideas of both
justice and legal certainty.Democracy is indeed laudable, but a governmentof
law is like our dailybread, like waterto drinkand air to breathe,and the best
thingabout democracyis preciselythatit alone is capable ofsecuringforus such
a government.

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