Study On The Relativism In Legal Philosophy Of Radbruch

In Radbruch’s view, the traditional natural law theory cannot provide correct knowledge of law with the method of interpreting be to ought to be, and it confuse the boundaries of ideal and factual. It’s Kant who successfully refutes the natural law theory. Kant denied the existence of the order of the universe and the eternal law that the traditional natural law theory pursuits, he argued that the priori concept of rechtrichtiges (right law) has universal validity while the specific content of the rechtrichtiges is given and judged according to materials. Kant interpret ought to be from the free will of person, and strictly distinct be and ought to be. Radbruch inherited this methodendualismus(dualism method) of Kant.In R. Stammler’s view, in the society, someone’s purpose may be others’method, so the will in law is the sum of these wills and methods, the essence of law is the external principle to constraint all these wills, and the content of law is a result of all these wills. R. Stammler thinks that law is law only when it accepts the remedy of the idea of law, the content of legitimate law is changeable, but the idea of law never changes. Radbruch inherited R. Stammler’s re-establishing of the independence evaluation of the value of law besides the evaluation of the legal reality.With the dualism method, Radbruch distinguishes spiritual and reality. Radbruch realized that there are four stands when we recognize the reality:wertblinde (value-free), bewertend (value-evaluative), wertbeziehende (value-related) and-wertuberwinden.de (value-surmounting). Rechtsphilosophie (legal philosophy) is a value-evaluative think of law. Subjective value judgment leads value judgment relative. Thus dualism method must lead to the relativism rechtsphilosophie.Radbruch’s relativism rechtsphilosophie is reflected in the idea of law, the concept of law, the content of law, and the efficiency theory of law. Gleichheit (equality), zweckmaβigkeit (purposiveness, or purposefulness, or utility), rechtssicherheit (the legal certainty) are three indivisible components of the idea of law, although it’s able to recognize the contradictions between the elements of the idea of law, but the task of the rechtsphilosophie is not to resolve these contradictions. The concept of law of Radbruch is a transcendent concept of legal positivism and natural law, thus it’s a concept of relativism. Radbruch believes that the content of law is determined by the will of the state, but he does not point out which ideology is correct or superior to others, thus Radbruch held relative stance in the content of law. Radbruch turns to legal science, history-sociology and rechtsphilosophie for the efficiency theory of law. In legal science, the validity of a rule can only be deduced from another rule, to go beyond this limitation we can only search outside the legal science. History-sociology efficiency theory of law presents in two forms, power theory and the theory of recognition, power theory is actually a theory of recognition, while in the recognition theory, recognize is only a necessary assumption. The efficiency theory of law can only be established on the basis that the right law cannot be perceived, the efficiency theory of law in rechtsphilosophie cannot be proved by philosophy, rational and science but can only be proved by the will and power.When facing the Nuremberg racial laws, Radbruch puts forward the Radbruch formula. Some people think that the formula means that Radbruch shift from emphasizing the legal certainty to equality, others think that it means he shift from legal positivism to natural law theory, but either before or after World War Ⅱ, it’s difficult to regard Radbruch as legal positivism or natural law, one reason why people take the Radbruch formula as a proof that Radbruch turned to the natural law is that people misunderstand the idea of law of Radbruch as the traditional concept of natural law. Hart’s misunderstanding of Radbruch mislead people mistakenly think that Radbruch shift to natural law theory, but after all Radbruch consists his legal philosophy.