Legal philosophy

Author: [German] Radbruch / Wang Pu
Publisher:
Publish Date: 2005-03-01
Features: The Philosophy of Law is Radbruch's magnum opus and has had a profound influence in the field of legal philosophy. For every author, there comes a moment—because he himself feels the necessity—when he needs to organize, conclude his work, and dedicate the rest of his remaining time to other tasks. This book is the author's summary of his work in the field of legal philosophy. It is the third edition of The Outline of the Philosophy of Law. The second edition was merely a reprint of the 1922 edition, so the publication year on the second edition still reads the year of the 1914 edition. At that time, a new edition was needed, but a complete rewrite was impossible. However, after the epoch-making events of war and revolution, we have come to realize the necessity of a comprehensive revision. The original publication year is still marked in the new edition, which also shows that this new version does not necessarily reflect the author's state of mind when he first published the book. The new edition presented to the readers is based on a record of a full re-reading of the entire book. Rather than being a new version, it is more like a new book—for example, some chapters of the general theory (chapters 11–15) and the special theory (chapters 16–29) have been newly included. In the special theory, the author did not take it upon himself to provide a detailed discussion of every aspect of the special theory, but rather began to explore the objects pointed to by the views emphasized in the general theory and tested their correctness with an example from the general theory. However, at the same time, State Philosophy (Staatsphilosophie) was excluded, and in this sense, it was also separated from legal philosophy. Even parts discussed in the old edition were revised in various ways. Some revisions were corrections of previous errors, such as giving the purposefulness (Zweckmigkeit) of justice in law an independent meaning. Other revisions, such as the discussion on the problem of free will (Willensfreiheit), were removed—not because the author considered this section incorrect, but because it was redundant in the context. Additionally, many of the previous detailed explanations were shortened. Some wording and the overall tone of the book may have changed, because things that sounded natural coming from a young person's mouth two decades ago now seem unrealistic when spoken by an aging person. Of course, it is possible that some people will find the old edition (VII) better than the new one. However, the old edition is not far from us, and the new edition has not replaced it but rather stands beside it. Nevertheless, the author has always adhered to a certain way of thinking: "willing to remain in the long night that people call the pre-Enlightenment" (Larenz) rationalism (Rationalismus) and "taking oneself as a completely non-scientific theoretical result" (Sauer) relativism (Relativismus), while relativism does not follow the fashion of irrationalism. Of course, the rationalism advocated in this book does not believe that this world can be divided by reason without remainder; it sees its task in the rational revelation of ultimate contradictions, not in the fog of irrationalism. The author also gives contemporary relativism a greater significance than when this book first appeared. Because relativism is the ideological prerequisite for democracy: democracy refuses to equate itself with definite political views and is willing to entrust the leadership of the state to any political view that can gain a majority. It does not find a clear standard to measure the correctness of political views and does not believe that there can be a party-transcendent stance. Relativism and its doctrines hold that no political view can be proven or refuted. This is very suitable for resisting the common arrogance in political struggles around us, which claims to see only stupidity and hostility in its political opponents: if no party's view can be proven, then we should fight for the views that stand in opposition to every stance; if no view can be refuted, then every view that stands in opposition to every stance should be attended to. In this way, relativism teaches us at the same time the firmness of our own views and the justice of opposing views. Here, the philosophy of law of 1914 is included as a small contribution in a series of research papers, which was restarted after a decades-long pause in legal philosophy research—during which only Rudolf Stammler upheld the banner of legal philosophy. Since then, the number of publications has grown immeasurably, and the author is also unable to study all of them in this book. Given that there is sufficient documentation in other textbooks (Stammler, Sauer), the author considers it unnecessary to list them all here. The author believes that it is better to let learners know what legal philosophy is, rather than what it is like, and he wants to guide them less toward results and more toward thinking about legal philosophy. He wants to let those fellow seekers, especially the friends—whom he likes to regard as his readers—recall the verse of Horace: Farewell, and good luck! You have far more wisdom than I do, so tell me honestly: where I am foolish, let us share the experience together.