forages the fruits of Radbruch’s Legal Philosophy of 1932, taking into account his writings after the horrors of National Socialism in Germany. This contribution builds on the findings of my chapter concerning Radbruch’s inquiry into the origins of the criminal law, in Foundational Texts in Modern Criminal Law. In that chapter I present the rise of the sovereign state as a precondition for a Rule of Law that institutes a balancing act between the different powers of the state. In the current article I briefly present the rise of the Rule of Law in the course of the nineteenth and twentieth centuries, exemplified by the rise of the German Rechtsstaat, the French État de Droit and the Anglo-American Rule of Law. This provides the background for a discussion of the contribution that Radbruch’s antinomian concept of law can make to a better understanding of the difference between legalism and legality. I argue that a mistaken view on legality informs the prevalent confusion around the notion of the Rule of Law. The investigation is complemented with the introduction of a procedural conception of both law and the Rule of Law, taking the discussion beyond formal and substantial conceptions of both. Finally, I integrate an analysis of Schmitt’s keen attention to the institution of law, observing that legalism and legality align with different institutionalizations, different legal orders and different modes of existence of law and the Rule of Law.Hildebrandt comments
Radbruch’s legal philosophy is a complex refinement of a particular strand of neo-Kantian philosophy, which understands concepts such as law, state, punishment, or property as inherently value-laden concepts. Radbruch believes that such concepts can only be properly understood if they are related to the idea that informs them. Contrary to rationalist natural law thinkers this idea is not a universal value that can be defined outside the context of its inception. For Radbruch these concepts are Kulturbegriffe (cultural concepts) that describe a value-laden reality, and the task of the legal philosopher is to clarify the values that give meaning and significance to the reality they inform. Radbruch’s antinomian conception of law shows that law in a constitutional democracy is a fundamentally contradictory phenomenon that implies a reiterative balancing act between the values of legal certainty, justice and expedience. The shifting emphasis on either of these values is not arbitrary but operates on the nexus of the concept of law, the idea that gives direction to its interpretation, and on the societal needs these values serve. Radbruch’s postwar emphasis on justice as potentially overruling legal certainty has led some to interpret his postwar writings as a return to natural law and a change in his position. However, in his seminal text on the origin of criminal law of 1938 Radbruch already found that the arbitrary power of the pater familias to punish his serfs entailed that the jurisdiction within the household of the pater familias should be understood as a prelegal order, closer to administration than to law. In line with this, we should expect that insofar as absolute sovereignty allows for arbitrary rule, Radbruch would have qualified it as a non-legal order, even before his experience of Nazi brutality.
In this article, my aim is to uncover the added value of Radbruch’s understanding of law for contemporary debates on both law and the Rule of Law. First, I will briefly present the rise of the Rule of Law in the course of the nineteenth and twentieth centuries, exemplified by the rise of the German Rechtsstaat, the French État de Droit and the Anglo-American Rule of Law. This provides the backbone for my discussion of how Radbruch’s antinomian concept of law helps to better understand the difference between legalism and legality. In fact, I often find that legality is defined as legalism, and I believe this triggers the prevalent confusion around the notion of the Rule of Law. Building on, for instance, Waldron, I will argue that we need a procedural concept of both law and the Rule of Law, to get a better picture of the difference between legalism and legality, taking the discussion beyond the dichotomy of formal and substantial conceptions. Finally, to substantiate the pivotal role of procedure, I integrate an analysis of Schmitt’s keen attention to the institution of law, observing — however — that legalism and legality align with different institutionalizations, different legal orders and different modes of existence of law and the Rule of Law.She concludes
It is clear that for Radbruch the artificiality of positive law is not a problem to be solved, but a consequence of the concrete incompatibility of the aims of the law, coupled with the fact that people will not agree on what should be the purpose of their society, collective or community. The artificiality is a productive, creative outcome of human adversity. The constructive nature of law - from Radbruch’s perspective - does not concord with a legal positivism that reduces law to the legal certainty of positive law (what Schmitt saw as the hybrid concoction of normativism and decisionism). On the contrary, the challenge to compatibilize the aims of positivity with those of justice and instrumentality is what triggers construction and reconstruction. This is an ongoing process and it cannot be taken for granted - as Radbruch testified after his experience of Nazi rule. At some point, the lawyer - whether judge or legislator - must acknowledge that the procedural enactment of legal code or case law fails to even aim for justice and legal certainty and instrumentality. At that point the lawyer is called upon to decide on the exception: to deny validity to what looks like positive law. Not because of her own moral preferences but because law has been separated from the values that enable us to qualify a statute or verdict as law.
The productive nature of artificial, positive law, however, does not, in itself, protect individual citizens against injustice. Even if artificial law is explained in terms of the choices that must be made when justice and legal certainty, or justice and instrumentality, or legal certainty and instrumentality are incompatible in concrete situations, we need institutional arrangements to see to it that reasonable choices are made. We need to make sure that such incompatibility is not used as an argument to push for an agenda that allows for decisions with a bias against vulnerable adversaries or, simply, for decisions biased to protect the interests of already privileged groups. This requires a situation établie with effective countervailing powers, checks and balances, and equitable procedures. Contrary to Schmitt’s suggestion, this situation établie cannot be understood and preserved on the basis of its concrete reality; to be sustainable it requires keen attention to the normative framework it embodies and the backing of sovereign power. Norm, decision and institution are mutually constitutive or interdependent. On top of that, to qualify as law, their interplay should vouch for the ends of justice, legal certainty and the law’s own instrumentality, in all modesty.