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法哲学年報
Vol. 2003 (2004) P 157-166,229

記事言語:

http://doi.org/10.11205/jalp1953.2003.157


Gustav Radbruch (1878-1949) presented his famous formula under the direct influence of 12 years of National Socialism. It reads: “Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely ‘false law’; it completely lacks the very nature of law.” Many scholars claim that this proposition differs from the legal philosophy expressed in his earlier works. I will argue that his legal philosophy has commonly been misinterpreted in such a way that it is apparently inconsistent with this proposition, and that when correctly interpreted, it supports the proposition. The reinterpretation presented in this paper is based on two arguments. The first concerns Radbruch's concept of law. Many scholars believe that Radbruch developed his concept of law with reference to Heinrich Rickert's “value-reference”, according to which any false statute is acknowledged as “law”. However, I will argue that Radbruch developed this concept under the guidance of Emil Lask's teleological principle. The second argument concerns Radbruch's theory about the purposes of law, and his closely interrelated notion of relativism. I will present a manuscript that Radbruch wrote for his lecture at the University of Kiel in 1919 (Gustav Radbruch. Rechtsphilosophische Tagesfragen [Current Questions of Legal Philosophy]. Ed. Hidehiko Adachi and Nils Teifke. Nomos-Verlag: Baden-Baden 2004). In this manuscript, Radbruch gave preference to what he called the “transpersonal view”, in which personality values and collective values (i. e., the values of nations) are subservient to work values. However, he added to this the argument that personalities and nations are at the same time the precondition of any true community of work. In addition, relativism, from which standpoint he developed his theory before 1919, is critically described in this paper. Pursuant to this, I will maintain that his legal philosophy after 1919 should be reinterpreted as non-relativistic and that, as argued in his proposition, any statute that completely denies one of three given values is non-law.

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