Radbruch’s formula: conceptual analysis and practical importance

The article provides an analysis of the key theses of Gustav Radbruch, known as the Radbruch Formula, which reflect the position of the prominent German legal philosopher of the first half of the 20th century regarding the judge’s duty not to apply «intolerably unjust laws». This preference is given to the principle of justice over the principle of legal certainty in certain categories of «hard cases». The article analyzes Radbruch’s formula regarding the nature of law itself and the evaluation of statutes as either having or lacking legal character, as well as their validity. The authors’ foundational approach in analyzing the Radbruch Formula is based on considering the dynamics of Radbruch’s philosophical-legal system, as a representative of Southwest (German) School of neo-Kantianism, in relation to the balance between the principles of legal certainty and justice as components of the idea of law. Radbruch’s views on the nature of law, which from the second half of the 20th century have formed the foundation of modern non-positivist legal theory in its «inclusive version», are also examined. The main characteristic of the Radbruch Formula is highlighted through three key theses of Radbruch concerning the relationship between the principles of legal certainty and justice, and their combination into two formulas. This epistemological approach enables a more detailed analysis of the ideas embedded in the Radbruch’s Formula. Under normal conditions of law and order, the first thesis indicates the need to give priority to the legal certainty of the law in law enforcement. The first formula, or the «intolerability thesis», describes the condition under which a law, as «incorrect law» or unjust law, is not recognized as legally binding from the moment of its creation. Intolerable injustice serves as the criterion for determining that the law is not law. Only intolerably unjust laws, among those that are to some extent unjust in content, lack legal force and cannot be applied by judges in the process of adjudication. The second formula, or the «rejection thesis», describes the criterion by which to distinguish between existing laws as «incorrect law» and laws that are, by their nature, non-legal and should be denied recognition as law. This criterion for a law is its «service» to justice, whose core is the equality of all people, thereby precluding racial, religious, and other forms of discrimination. The authors view Radbruch’s theses as an integral construct of the Radbruch Formula, as taking into account their essential connections, which refer to the concept and idea of law, provides a comprehensive understanding of the nature and purpose of legal certainty, the value of justice, the degree of permissible injustice, and the purpose and nature of law itself.