The Dilemma: Conflicts between Law and Justice
In a major speech in 2010, Professor Frank Schneider1 quoted a prominent legal philosopher’s profound statement about the conflicts between law and justice. This was in reference to his subject matter: the acceptance by his profession, psychiatry, both during and after the Third Reich of not simply its laws but the thinking behind such laws as forced sterilization and euthanasia.
[Schneider]: Human dignity is always the dignity of the individual human being. No law may ever be allowed to disregard this.
In 1946 Gustav Radbruch described the conflict between law and justice. ‘In principle, the law takes precedence over justice:’
[Radbruch] “unless the extent to which a positive law contradicts justice is so intolerable that it must yield to justice as ’wrongful law’. […] When justice is not even aspired to and when equality, the very essence of justice, is deliberately flouted when drafting a positive law, such law is not only ’wrongful’, it is completely devoid of legality.”2
However, is it only justice that yields to positive law? Must the faith of individuals yield to it, too?
That is the question confronting the nation of Germany in the case of the Communities of the Twelve Tribes in Wörnitz and Klosterzimmern.3
Professor Radbruch thoughtfully distinguished between normal and extraordinary situations when positive law has so far departed from the basis of justice that it has no authority as law. However, in his seminal document, “Five Minutes of Legal Philosophy,” written in 1945—in the immediate aftermath of those terrible days—he was far more expansive in his claims for individuals led by their consciences.
Led by that inner compulsion to do right—to obey the natural law, in other words—Professor Radbruch held that individuals could make a valid legal claim for protection from laws that violated their consciences.
Reckonings sometimes come late, but they do come. In the case of the German judiciary, it was not until 2002 that the President of the Federal Criminal Court addressed fundamental issues of injustice both tolerated and indeed justified by the German judiciary.
In his profoundly important speech, he detailed the extensive, inexcusable compromise of the German judicial system both during and after World War II. Obviously, the most morally offensive aspect of that behavior is what happened after the war. What Professor Hirsch dealt with was not euthanasia or forced sterilization, but what he called “judicial murder.”
In his speech, he formally aligned German justice with the “Radbruch formula,” as he put it, “according to which positive law is not applicable if it contradicts justice to such an intolerable degree “that the law being incorrect law has to give way to righteousness.”
He had good cause to set a new course for German justice. For in that speech Doctor Hirsch spoke of 50,000 unatoned for judicial murders.4 That is, murders that happened during the days of the Third Reich which were not ever prosecuted after the days of that government.
No justice ever came to the many individual judges and prosecutors involved. The basic idea that the Führer’s word made up the substance of both law and justice, thus lived on after the war. To quote Professor Doctor Hirsch:
“With his [Carl Schmitt] essay “The Fuhrer protects the law” he gave the murderers of the so-called “Röhm Putsch” not only the justification of a state emergency above the law, but declared the Fuhrer’s deed to actually have been true jurisprudence.5 It was per se not under the authority of justice but was itself supreme justice. Theodor Maunz, Ernst-Rudolf Huber, Ulrich Scheuner, Ernst Forsthoff – the list of prominent university lecturers the Nazis were able to refer to is long. Karl Larenz deprived the Jews in Germany of their legal capacity and thus of their civil existence with the phrase, “The only fellow partaker of law is he who is a fellow national; the only fellow national is he who is of German blood.”
This then is what he intended to undo as President of the German Federal Supreme Court of Justice. These judicial murders were committed during the War by jurists abandoning conscience to a dictator’s use of positive law.
They became unatoned for judicial murders after the war because the German judiciary still acknowledged the legitimacy of those wartime judgments. That is, they held guiltless those responsible for what Professor Hirsch would later call “judicial murder.”
Thus, Five urgently important Minutes
Such was the extraordinary situation when “law is completely devoid of legality” that Gustav Radbruch saw in the nation that had recently perished in 1945: Nazi Germany. He was very concerned about the nation that would rise from its dust. Could his words help guide it back into the fold of civilization it had so willfully departed from?
Would the new Germany be, Phoenix-like, a revised, modified, but still recognizable continuation of what had been trampled underfoot by its enemies? Or would it embark on a new, and more hopeful course, with laws restrained by the natural law and the respect for people’s inalienable rights, that mark all civilized societies?
What of more “normal” situations?
What is normal? Who today can decide that for others? But there is a guide that Gustav Radbruch held to, that allowed him to speak his prophetic words of justice and hope. Let us turn to his “Fifth Minute” to hear what he had to say.
“There are principles of law, therefore, that are weightier than any legal enactment, so that a law in conflict with them is devoid of validity. These principles are known as natural law or the law of reason. To be sure, their details remain open to question, but the work of centuries has in fact established a solid core of them, and they have come to enjoy such far-reaching consensus in the so-called declarations of human and civil rights that only the dogmatic sceptic could still entertain doubts about some of them.
“In the language of faith, the same thoughts are recorded in two verses from the Bible. It is written that you are to be obedient to the authorities who have power over you (Hebrews 13:7), but it is also written that you are to obey God rather than men (Acts 5:29)—and this is not simply a pious wish, but a valid legal proposition. A solution to the tension between these two directives cannot be found by appealing to a third—say, to the dictum: ‘Render to Caesar the things that are Caesar’s, and to God the things that are God’s’. (Mark 12:17) For this directive, too, leaves the dividing line in doubt. Or, rather, it leaves the solution to the voice of God, which speaks to the conscience of the individual only in the particular case.”
A Valid Legal Proposition
Thus an individual’s appeal to the natural law—to it’s demand of righteousness on his life, over and above that of any positive law—is a “valid legal proposition” that he may arm himself with in the legal defense of his rights of conscience.
An individual’s claim that a law in violation of natural law is in fact “devoid of validity” — because of the depth of his convictions and his faith in the Word that God has spoken to his heart — must and will be considered by any judicial system that is truly founded on “the Radbruch doctrine”. And such Professor Doctor Hirsch claimed for Germany:
…that the German judiciary have found their way back to Radbruch’s doctrine [stating] that there is a higher law than the written law.
This has come to the test in the nation of Germany.
Our claim as parents to authority in our children’s life is neither new nor novel nor harmful. The law that we cannot have authority is, on the other hand, all those things.
The right of parents to raise and rule over their children is as old as mankind itself. It has been instinctively known to all men and women throughout all time. It is echoed in the creation around us, in the animals that naturally and instinctively train and even discipline their young.6 It is an enormous perversion of the natural law and of nature itself to deny to parents the right to love their children in this way.
Whoever spares the rod hates his son, but he who loves him is diligent to discipline him. (Proverbs 13:24)
the law has to give way to righteousness
So Professor Radbruch said many years ago: “that the law being incorrect law has to give way to righteousness.” That too is the cry of the God of Heaven to the Seed of Abraham, through whom all the nations will be blessed:
For I have chosen him, that he may command his children and his household after him to keep the way of the Lord by doing righteousness and justice, so that the Lord may bring to Abraham what he has promised him. (Genesis 18:19)
Will a place for the sons of Abraham by faith be found in Germany today? Or will that faith, that way, be banished from the land?
If so, there is in fact no higher law than the written law.
For many, such legal certainty is enough. As we have heard in our Town Meetings: “…About parenting: The argument that, “We live in a constitutional state, where all must obey the law,” seems to remain an insurmountable hurdle for many people. (See the brief post, “The Law Changes, the Conscience Doesn’t.”)
This is the shadow of the past. It is not seventy years old, as a reader could think we are saying. It is five hundred years old.
- Professor Frank Schneider is head of the Department of Psychiatry and Psychotherapy at the University Hospital Aachen and former president of the German Society for Psychiatry, Psychotherapy and Neurology (DGPPN). ↩
- Radbruch, G., “Legal injustice and justice beyond the law” (“Gesetzliches Unrecht und übergesetzliches Recht”), Süddeutsche Juristenzeitung 1, 1946, pp. 105–108, specifically p. 107 ↩
- The above words of Professor Schnieder were first quoted in the post, “Registered, Persecuted, and…” detailing the hundreds of thousands of Germans denied the right to live, on the one hand, and the right to reproduce, on the other hand, that German doctors and psychiatrists were complicit in. This very much seems to be the course in store for us, too: registration, persecution, and… ↩
- The professor doctor clearly knew that according to the Scriptures, unatoned for blood pollutes the land. See Numbers 35:30-34) ↩
- To quote Professor Hirsch about him: “Let me mention here the distinguished teacher of constitutional law, Carl Schmitt, who ended up being the gravedigger of the Weimar Constitution and the “crown jurist of the Third Reich.” ↩
- Will the United Nations now outlaw animals from training their young, too? ↩