Reinterpretationof “Radbruch Formula”

Since the middle of the 20 th century, “Radbruch Formula” has become one of the key topics of Jurisprudence, and aroused a new academic debate of “whether the evil law is law”between the school of natural law and the school of positivism.The school of positivism argue that “Radbruch Formula”is the continuation of natural law for denyingthe validity of the unjust law.In view of the criticisms,the author reinterprets “Radbruch Formula” based on the analyses of “Recht” and “Gesetz”, “unrichtiges Recht” and “des Unrechts”, “des Unrechts” and “die Rechtsnatur”. The author holds the point that the school of positivism wrongly interpret “Radbruch Formula”. Actually, “Unertraglichkeitsformel”,which does not deny the validity of the unjust law, isused by judges to realize judicial equity. In extremely specialsituations, judgesmay use “Verleugnungsformel” to deny the validity of the evil law. Through the analysis of Radbruch’s legal philosophy, we can also find arguments to supportthe author’s point of view. On the other hand, Radbruchdealt with different cases in different ways.In cases of “Puttfarken” and “assistant executioners”, Radbruchdid not deny the validity of the Nazi’s law.In the case of “the deserter”, Radbruchapplied the new law inaccordance with the principle of criminal law.Only in the case of “the judge”, Radbruch denied the validity of the Nazi’s law.The author contradict the criticisms raised by the school of positivism based on the reinterpretation of this article.“Radbruch Formula” does not damage Rechtssicherheit.“Radbruch Formula”has a clear applicable standard.Radbruch had not changed his legal philosophy from the school of natural law to the school of positivism. In the last part of this article, the author respectively explain the significance of “Radbruch Formula”from three ways: “the observer’s perspective”, “the burden of following the law” and“the risk effect”.