PHI 3395 Lecture Notes - Lecture 6: International Criminal Court, Axis Powers, On Liberty
1 Oct 2016
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Radbruch statutory lawlessness (1946) [in law and morality] Positivists claim a concern for morality: avoid confusing it with what is law/legal at any time. What is important is not just what the doctrine says, but what the actual tendency is. You have to look at the general tendencies of what is taken from the. Allies vs axis powers: the winners" made the rules, radbruch: the underlying theory behind the winners" making the rules is incorrect. Radbruch in 1946 after wwii: criticises legal system of hitler"s nazi germany, uphold prosecutions of nazi officials, denounces positivism as obstacle. Judges who punished by death, critics, deserters, resisters etc: radbruch"s answer yes. This is statutory lawlessness (126) radbruch"s formula extreme injustice is no law applies later in. Germany after reunification, to prosecute east germany border guards: guards simply shot people who tried to escape. The core idea is that certain extreme elements of injustice and immorality negate some status of law.
