Statutory lawlessness and supra-statutory law (1946)

Oxford Journal of Legal Studies

Volumn 26, Issue 1, 2006, Pages 1-11

  Radbruch, Gustav ^a  

^a NONE

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EID: 33645572444     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqi041     Document Type: Article

References (34)

1. Military Criminal Code of 1940, §47.
2. [Translating 'Unrecht' as 'lawlessness' here - not as 'injustice', 'wrong', or 'evil', among other possibilities - and 'Recht' as 'law' - not as 'justice' or 'right' - underscores the legal context of the sharp distinction Radbruch draws between the two terms. Better reflecting the 'positivistic legal thinking' he mentions, the phrases themselves might read 'statutory (or positive-law) lawlessness' and 'supra-statutory (or supra-positive) law'.]
3. Heinz Kleine, in the Süddeutsche Juristen-Zeitung 1 (1946) 36.
4. [Post-war Germany was divided by the occupying powers into four zones - Russian, French, British, and American - for purposes of Allied administration of the devastated country.]
5. Thüringer Volk (Weimar), 10 May 1946. [In the immediate post-war period, official reports of judicial proceedings were not generally available, and so Radbruch quotes extensively here from newspaper accounts.]
6. Ibid. [Emphasis in original.]
7. In his edition of the Criminal Code in its Thuringian rendition (Weimar: Landesverlag Thüringen, 1946), 13, Prof. Richard Lange states that 'in those cases where the perpetrator has misused the judicial system to pursue his own criminal purposes (deception during litigation, political denunciation), much uncertainty has arisen about the concept of the indirect commission of a crime. Therefore, article 2 of the Supplementary Law of 8 February 1946 makes clear that the indirect commission of a crime is punishable even if the instrument that is employed has itself acted lawfully or in compliance with its official duty.'
8. [Control Council Law No. 10, article 2, paragraph 1(c): 'Crimes against Humanity. Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated'.]
9. [Ibid, article 2, paragraph 3: 'Any persons found guilty of any of the crimes above mentioned [in article 2, paragraph 1] may upon conviction be punished as shall be determined by the tribunal to be just. Such punishment may consist of one or more of the following: (a) Death. (b) Imprisonment for life or a term of years, with or without hard labour. (c) Fine, and imprisonment with or without hard labour, in lieu thereof. (d) Forfeiture of property. (e) Restitution of property wrongfully acquired. (f) Deprivation of some or all civil rights. Any property declared to be forfeited or the restitution of which is ordered by the Tribunal shall be delivered to the Control Council for Germany, which shall decide on its disposal.']
10. Criminal liability according to Allied Control Council Law No. 10 is not discussed in what follows, for German courts do not have primary jurisdiction here. See article 3, paragraph 1(d). ['Each occupying authority, within its Zone of Occupation, shall have the right to cause all persons so arrested and charged, and not delivered to another authority as herein provided, or released, to be brought to trial before an appropriate tribunal. Such tribunal may, in the case of crimes committed by persons of German citizenship or nationality against other persons of German citizenship or nationality, or stateless persons, be a German Court, if authorized by the occupying authorities.']
11. Thüringer Volk, above n 5 [emphasis in original].
12. Another proceeding involving denunciation took place before the Munich denazification panel, against those who had informed on the Scholls. [Siblings Hans and Sophie Scholl, leading members of the White Rose, a resistance group at the University of Munich, were distributing anti-Nazi leaflets when they were arrested on 18 February 1943. Condemned to death on 22 February 1943, they were executed the same day. Hans was 24 years old, Sophie 21.] Denazification is levelled against a politically and morally inferior sentiment, and need not enquire into the legality or legitimacy or the culpability of putting that sentiment into practice. It follows then that a line is drawn between denazification and criminal jurisdiction, but it also follows that the two overlap. Compare article 22 of the Befreiungsgesetz [Law for Liberation from National Socialism and Militarism, 5 March 1946].
13. Also requiring discussion here would be the extent to which the 'normative force of the factual' [Georg Jellinek] makes valid law out of systems that come to power by way of revolution. And my colleague Walter Jellinek has kindly pointed out that it would be inaccurate to suggest that the two-thirds majority was achieved only by eliminating the Communists.
14. Tägliche Rundschau (Berlin), 14 March 1946 [emphasis in original]. On criminal responsibility for unlawful judicial decisions, see also Friedrich Buchwald in his notable work, Gerechtes Recht (Weimar: Panses Verlag, 1946) at 3-8.
15. Liberaldemokratische Zeitung (Halle), 12 June 1946. [See above, n 8.]
16. Tägliche Rundschau, above n 14, 9 May 1946.
17. [The German 'Zweckmäβigkeit' is often translated, respectably, as 'utility' or 'expediency'. In the present context, however, any suggestion of utilitarianism would be misleading, as would the connotation of opportunism that attaches to 'expediency'. 'Purposiveness' has the virtue of stemming directly from 'purpose', thereby underscoring Radbruch's point.]
18. [The Holy Bible, King James Version, 1611, Hebrews 13:17 and Acts 5:29 respectively.]
19. [In 1932, five Nazi storm troopers were condemned to death by a court in Upper Silesia for the brutal murder of a Communist in the village of Potempa. Under pressure from the Nazis, their sentence was commuted to life imprisonment. After Hitler came to power, they were pardoned.]
20. [Wehrmacht officers and others, arrested following their failed attempt to assassinate Hitler on 20 July 1944, were tortured, viciously humiliated in a sham trial, and executed.]
21. [Jean Jaurès, an eloquent politician known as an intellectual champion of socialism, was assassinated in Paris in 1914 by a fanatical nationalist, Raoul Villain. Villain was taken into custody pending trial, but acquitted in 1919 by jurors who reportedly felt he was a patriot who had done France a favour by getting rid of the antiwar Jaurès.]
22. [Georges Clemenceau, a Radical Nationalist politician, survived an attempt on his life made in 1892 by a rival political group, taking revenge for his repudiation of their leader, General Boulanger, a convicted traitor who had committed suicide in 1891. The Boulangist who failed in his attempt to assassinate Clemenceau was unceremoniously executed.]
23. Völkischer Beobachter (Munich) [publication of the National Socialist Party], 26 August 1932.
24. Buchwald, too, argues for supra-statutory law in his book, above n 14, at 8-16.
25. And compare Walter Roemer, Süddeutsche Juristen-Zeitung 1 (1946) 9-11.
26. ['Entwerten' (translated 'invalidate' here) appears in the Wolf editions of Radbruch's Rechtsphilosophie, but 'entwerfen' ('to draft') is used in the original printing as well as in the Collected Works, above at asterisk note. In the context here, 'invalidate' is clearly the better fit.]
27. See also Kleine's article in the Süddeutsche Juristen-Zeitung, above n 3.
28. See §II, case no. 4, above.
29. [See §II, case nos 1-3, above.]
30. [See §II, case no. 1, above, and see above, n 6.]
31. It is of course the height of subjectivism in the doctrine of complicity, that criminal intent - in the form of a 'subjective element of wrongdoing' - entails in the person of the indirect perpetrator illegality that is lacking in the person of the direct agent or instrument.
32. §336 and §344 of the Criminal Code.
33. [See also §II, case no. 4, above.]
34. Karl Binding, Lehrbuch des Gemeinen Deutschen Strafrechts, Besonderer Teil, vol. 2 (Leipzig: Engelmann-Verlag, 1st edn, 1905) 569.