2001 Volume 25 Pages 106-118
This paper intends to clarify the applicability of the so-called “Radbruchsche Formel” for the judicial legislation (sec. I)
Radbruch regarded the overcome of the past by law as possible, because to him the retroactive effect of ex post facto law was the essence of “judge made law” itself. According to such interpretation even under the NS-regime the content of “übergesetzliches Recht” (meta-legal law) remained valid as “ethische Auffassung des Volkes” (ethical idea of people) and therefore “unjust” acts have been punishable from the time of performance. From post-WWII up to nowadays, from the NS-lawsuits up to the recent “Mauerschützen”-lawsuits the “Formel” has served as reliable pattern. However, that common interpretation demands further explication, because national socialists interpretated “gesundes Volksempfinden” (sound susceptibility of people) as “übergesetzliches Recht” (sec. II and III).
Hereupon it is necessary to point out Radburch's conception of “Natur der Sache” (the nature of things) to achieve an improved understanding of his “Formel”. This shows the historicity of law and the relatively free developement of respective systems of law in a world historic process. Hence the national socialist's idea of law and right can neither be seen as “übergesetzliches Recht” nor as “Naturrecht” (natural law) which has been made positive. In conclusion the “Formel” should be applied for the overcome of the past only if the validity of certain laws is measured by his definition of “Natur der Sache” (sec. IV and V).
