Radbruch’s formula from the perspective of Herbert L.A. Hart’s critique

Abstract

The aim of the article is the analysis of Radbruch’s formula from the point of view of Herbert L.A. Hart’s critique. For the purposes of this text, I distinguish two fundamental arguments present in Hart’s considerations. I name them as a conceptual one and an empirical one. The conceptual argument claims that the problem of the existence of law should not be confused with the issue of following this law. The empirical argument consists in negating the claim that German society’s submission to Hitler’s criminal rules was rooted in adopting a positivist way of thinking.
The main hypothesis of this article claims that there are much more interesting interactions between the conceptions of these two giants of the philosophy of law than it would appear from Hart’s arguments. Moreover, it seems that the tension between these two ways of thinking does not have to be as strong as the author of the Concept of Law presents, and how it is often claimed today.
I complete the task outlined above in a few steps. After introductory remarks, I resolve the problem of the basis for reconstruction of Radbruch’s formula. Then I recreate the content of this formula, signalling some doubts in its interpretation. Next, I reconstruct the objections made by Hart against it, proposing to reduce them to two basic ones. In the following parts of the text, I discuss these arguments and formulate the proposal of reconfiguring the dispute.
This proposal refers on the one hand to the work of Brian H. Bix, and on the other hand to Kant’s figure of cooperation between theoretical and practical reason. I indicate the rule of recogni-tion as the place of Hart’s concept in which Radbruch’s formula can be entered. The author of the Concept of Law does not determine the shape of the rule of recognition in specific legal order, but only creates a general theoretical model. He does not exclude, therefore, that in some legal order there will be such a rule of recognition which is connected with the moral criterion. At this point, the work of theoretical reason is ending and the work of practical one is beginning . Radbruch’s formula can be treated as an appeal of practical reason — resulting from a traumatic historical situation — to include its clauses into the rule of recognition. Practical reason therefore chooses one of the possi-bilities left by theoretical reason.