The Research On Radbruch’s Idea Of Law

Radbruch is one of the most great and profoundly German jurists in 20 century who inherits and carries forward the tradition of New Kant theory and proposes a concept as jurisprudence of content in his book LEGAL PHILOSOPHY which analyzes law not limited in transcendental and necessary aspect, but also including content and value judging. Radbruch argues that as a kind of culture phenomenon, the connotation of law must be guided by civilized law. And law can only be understood under the presupposition of value-relevant while determined its rules by consciously value judging. Inherited the Sollen —— Sein dividing methodology,Radbruch points out that the concept of law can ―never be proved by general induction method‖ but on the contrary based on deduction which should be a realistic conc ept consciously servicing the value judgement, thus it is a reality consciously servicing the value and idea of law. Based on value judgement, Radbruch develops a systematic theory about idea of law which takes justice as its core while with other factor a s Rechtssicherheit(stability of law) and Zweckmaessigkeit(teleonomy). Those three of factor somehow are contradict to each other while well-organized in this theory. However, given Radbruch has not provided detail reasoning process but reckons that conc lusion depending on his ―personal belief ‖and ―the nature of things‖, the idea of law as justice does not come from no where while still need to be proved how it comes to terms. Certainly, this kind of theory is contradict to positivism. But if regarding positivism’s primary purpose as objectively analyze law which not involved in criticizing nature law, and considering the value judging function of justice from the aspect of whole legal system, then we may find a possibility that two theory are not such incompatible. At the last part of paper, author will try to prove the fundamental function of justice in legal system constructing using social contract theory through analyzing the cooperation and confliction of individuals in nature society context to argue that authority only with power which no justice relevant is illegal from the beginning.