Famous scholars from Kiel:
The lawyer and SPD politician was Minister for Justice in the Weimar Republic. He taught at Kiel University from 1919 to 1926. Professor Robert Alexy introduces the eminent legal philosopher
Gustav Radbruch is the first German lawyer, who was granted the honour of an entire edition as a lawyer, in other words not like Goethe as a poet or Max Weber as a sociologist. The 20 volumes of this edition, which preceded an eleven volume comprehensive Japanese edition, show how widely Radbruch's interests were spread. Legal philosophy, however, was always the centre of his attention. Without legal philosophy his work would not have the same importance.
Radbruch was born on 21st November 1878 in Lübeck as the son of a wealthy merchant. From 1898 he studied law in Munich, Leipzig and Berlin, where he was awarded a doctorate in 1902. Only one year later he received his "Habilitation" (qualification to teach at a university) in Heidelberg. This rapid momentum was followed by stagnation: From 1904 until 1910 Radbruch remained an associate professor, from 1910 to 1914 he was an associate professor without the status of a civil servant. In this period of career standstill he developed his thinking further. Radbruch absorbed the Heidelberger neo-Kantian principles. He received particular encouragement from the sociologist Max Weber (1864-1920) and the philosopher Emil Lask (1875-1915). In 1910 the "Einführung in die Rechtswissenschaft" (Introduction to Law) was published, which reached its 13th edition in 1980. This was followed in 1914 by the "Grundzüge der Rechtsphilosophie" (Fundamentals of legal philosophy), from which his main work, the "Rechtsphilosophie" (Legal Philosophy), which was published in 1932, emanated. In addition to the basic elements of his legal philosophy, it was during this time that Radbruch's political tendencies also developed: he first became involved with the Progressive People's Party (Fortschrittliche Volkspartei) and then increasingly with social democracy.
At the beginning of 1914 Radbruch finally received a call to Königsbergs as an associate professor. Owing to his involvement in the First World War, which broke out shortly afterwards, he could only assume his new position sporadically. At the end of 1918 he joined the Social Democratic Party of Germany (SPD). In 1919 he was offered a professorship in Kiel, initially against the wishes of the faculty as an associate professor of public law, which was actually not Radbruch's field. Shortly afterwards, this time with the consent of the faculty he was offered a chair in criminal law. At the same time he received a call to Cologne. It was therefore now, 15 years after his doctorate, as noted ironically in his autobiography, that he had finally been released from his "associate professor illness". His seven "Kiel years" had started.
The most dramatic event of this time for Radbruch was the coup of radical right-wing forces under the leadership of Wolfgang Kapp against the Berlin imperial government. After he had heard about the coup in Berlin on 13 March 1920, together with Hermann Heller, who later was to become one of the most important constitutional law lecturers of the Weimar Republic, he went to the workers who had joined the general strike and who had occupied the Kiel imperial shipyard and were trying to arm themselves. Radbruch and Heller wanted to negotiate a ceasefire with the military commander in Kiel, rear admiral von Levetzow, but were captured and temporarily imprisoned. After the collapse of the coup, Radbruch attempted to contain the anger of the workers, which had erupted by this time. On 24 March he gave the funeral eulogy for 25 victims of the coup at the Eichhof cemetery. As a result of his actions during the coup, Radbruch had become so highly respected by the social democrats that he was given a safe seat on the social democratic imperial list. He therefore sat in the Reichstag from 1920 until 1924. During this time he was twice the Imperial Minister of Justice. After 1924 his desire to return to academic life prevailed. Radbruch again focussed all his attention on his Kiel university position. In the summer term of 1926 he became dean of the Faculty of Law.
The Kiel years ended in 1926 with the offer of a chair in Heidelberg. On his return to Heidelberg, during the final years of the Weimar Republic Radbruch wrote the third and final edition of his "Legal Philosophy". Offers of professorships in Hamburg and Berlin show his rising reputation. However, he refused these offers. On 9 May 1933 he was the first university professor to be dismissed owing to the infamous law "for the Restoration of the Professional Civil Service" (Imperial Law Gazette I 1933, page 175) not for racist but for political reasons. Radbruch remained in Germany, but mainly had to publish abroad. He was forbidden from accepting appointments at the universities of Kaunas in Lithuania and Zurich. However he was able to take up a one-year study visit to the University College in Oxford in 1935/36, which was recorded in particular in his book "Der Geist des englischen Rechts" (The Spirit of English Law) which was published in 1945.
The year 1945 was another year of change for Radbruch. He returned to his chair as the first Heidelberg post-war dean. In this period Radbruch writes his renowned late works, of which the essay "Gesetzliches Unrecht und übergesetzliches Recht" (Legal injustice and law not regulated by law), published in 1946, is probably the most important. Radbruch died in Heidelberg at the age of 71 years.
This contribution is an abbreviated version of an article by R.A. on G.R., which he published in the »Christiana Albertina«. Professor A. is the holder of the Kiel Chair for Public Law and Philosophy of Law at the Faculty of Law.
The enduring significance of Radbruch's legal philosophy is chiefly based on his thesis on the relationship of justice, legal certainty and usefulness, which find their final expression in the "Radbruch's formula" of 1946. It states: "The conflict between justice and legal certainty should be able to be solved because positive law secured by statutes and power even takes priority when its contents are unjust and inappropriate, unless the contradiction between positive law and justice reaches such an extent that law as "unjust legislation" gives way to justice. It is impossible to draw a sharper line between the cases of statutory injustice and the laws which still remain valid despite incorrect content; however another line can be drawn with more preciseness: where justice is not even aimed at, where equality, which is at the core of justice, is consciously repudiated when laying down positive law, then the law is not even only "incorrect law", but completely dispenses with the legal structure."
This is one of the most influential legal philosophical theses of the 20th century and can be summarised as: extreme injustice is not law. It is based on the case law of the German courts to correct the national socialist injustice and was taken up again for the purposes of judgment of GDR injustice in the trials over the Berlin wall shootings. However, it has also been fiercely criticised. This discussion has a breadth unequalled by almost any other legal, philosophical debate.