PHL271H1 Chapter Notes - Chapter 126-140: Gustav Radbruch, Positivism, Strafgesetzbuch
Document Summary
One of the points of disagreement between hart and fuller was about german legal philosopher gustav radbruch. Radbruch: argued that the merits of legal positivism had to be rethought in the light of the experiences of nazism. "radbruch formula": extreme injustice is no law has been used by german courts after german reunification in order to facilitate the prosecution of east german border guards who has shot people trying to escape to the west. 2 maxims used by national socialism (nazi) to bind its followers to itself, soldiers and jurists respectively. A jurist was always restricted in its applicability. While soldiers had no obligation to obey orders serving criminal purposes. -> it expressed positivistic legal thinking that held sway over german jurists for many decades unchallenged. "statutory lawlessness" was a contradiction in terms, just as "supra-statutory law" was. Example: recently german journal commented on a decision of wiesbaden.
