Gustav Radbruch: Legal Thinker, Philosopher, and Social Democrat

Author: Arthur Kaufmann
Publisher:
Publishing Date: 2004-01-01
Features: Postscript: I myself can't quite explain why I have become particularly fascinated with Radbruch in recent years. It's not just about his legal theory, but more importantly, about Radbruch the person. Radbruch is a mystery waiting to be unveiled: he established the theory of relativistic value in law, but we seem unable to grasp the systematicity and coherence of his theory; he always tries to transcend the dichotomy between ought and is, value and reality, legal positivism and natural law, but he is always struggling and wavering in this binary contradiction, sometimes even falling into the awkwardness and embarrassment of inconsistent statements; he demonstrates profound insights and extraordinary wisdom about legal phenomena in his writings, but he did not inherit the unique dialectical tradition of the Germans (especially represented by Hegel and Kant) to build a purely deductive conceptual (formal) system for his theoretical framework; he was naturally averse to legal academia, yet he chose to pursue criminal law research, which requires a talent and interest in dogmatics (hermeneutics), as his career, and achieved remarkable accomplishments in both criminal law research and legal philosophy; he yearned for a complete life like Goethe, but he was not born at the right time and suffered repeated misfortunes in his youth and middle age; he was criticized by many in Western countries, but he was revered like a deity in East Asia (Japan, South Korea), to the extent that we can say his works, when translated into Japanese, reshaped the minds and theoretical interests of Japanese legal scholars and thus changed the direction of legal development in Japan after World War II. So, what kind of person was Radbruch? With this question in mind, I tried to find some answers by reading existing Chinese literature (research and translation works). But unfortunately, the results of this effort only deepened my doubts: some introductions to Radbruch are vague when it comes to the details. Fortunately, at the right time, my colleague Professor Mi Jian brought back from Germany Arthur Kaufmann's "Radbruch: A Biography," published in 1987. I borrowed it and considered it a treasure. Arthur Kaufmann was one of the most important legal philosophers in Germany after World War II and was a disciple of Radbruch, belonging to his last student before his death. It should be said that he knew Radbruch's life, personality, and scholarship like the back of his hand. Additionally, he had a bird's-eye view, excellent summarization skills, and precise commentary abilities (which can be seen in his other works), making him the most suitable person to write an academic biography of Radbruch (in fact, there are already dozens of such biographies). In fact, Kaufmann did not disappoint the expectations of many scholars. With his lively and vivid writing, he objectively and meticulously described Radbruch's thoughts, advances, and retreats: he pointed out the paths forward when we were lost, did not impose excessive judgments where Radbruch himself had doubts, but instead raised questions and inspired deep reflection. It can be said that Kaufmann presented to us a vivid Radbruch: a wise man who integrated scholarship and life. As we read this biography, we will follow Kaufmann's guidance step by step to get closer to this wise man who has achieved enlightenment, and enter the world of his little-known life and mind. This is far more important than simply understanding the simplified views of Radbruch through "textbooks." I always believe that to study a person's thoughts and theories, one should first familiarize themselves with their life, so that we can achieve a spiritual connection with the subject of study. In this sense, I have always regarded Radbruch as one of my mentors in shaping my character, and his personal experiences are also common to people of our age (the so-called age of no regrets). Of course, this is also the late-life experience of Professor Kaufmann, because when he wrote a heartfelt preface in Chinese for Radbruch's "Maxims of Legal Wisdom" (translated by me and published by the Legal System Press in October 2001) ten days before his death, I understood: his heart had already absorbed some of Radbruch's spiritual qualities. Professor Kaufmann's attention and support for my translation work were the guarantees that enabled me to complete the translation. In his letter dated December 3, 1998, he wrote: "If I can provide any form of help, please do not forget to let me know." Professor Kaufmann was a man of his word. When I later wrote to explain that I would first translate Radbruch's "Maxims of Legal Wisdom" and then his biography, he not only agreed but also actively helped with copyright matters. Unfortunately, on April 11, 2001, illness finally took his life. I was deeply sorry that he did not live to see the publication of the Chinese translation of his works, and I also lamented the loss of such a knowledgeable and wise mentor. Just as I was feeling low due to grief, in November 2001, I had the fortune of meeting Professor Keifu Suzuki of the Faculty of Law at Sapporo Gakko University in Japan (Professor Dr. Keifu Suzuki), who is also a dedicated scholar of Radbruch's work and was giving lectures at several universities in Beijing at the time. According to Professor Suzuki, his predecessor, Professor Dr. Toshita Tokiwa, was the only Japanese student Radbruch ever taught. With such academic ties, it is no wonder that Professor Suzuki is deeply devoted to Radbruch's studies and truly embodies his spirit (he once said: "My research on Radbruch is a spiritual destiny." And how about me? I am no different!). The main part of his seminal work "Introduction to Legal Philosophy" (Chugakudō, 1988 edition) focuses on Radbruch's theories (methodological dualism, value relativism, the socialization of law and "the nature of things" and so on). Additionally, Professor Suzuki has translated and published Radbruch's works such as "Maxims of Legal Wisdom" (Japanese translation "Maxims for Legal Thinking") and "The Magic Flute and Criminal Law," demonstrating his expertise as a Radbruch scholar in Japan. In the short time we talked, Professor Suzuki told me about the process of Radbruch's visit to Oxford University and the of Radbruch studies in Japan and South Korea. What is even more precious is that after returning to Japan, Professor Suzuki provided me with some materials on researchers mentioned in Kaufmann's biography, such as the "Festschrift for Professor Tjong Zong Nk" edited by Hans-Heinrich Jescheck, Professor Tjong Zong Nk's doctoral dissertation "The Way of Gustav Radbruch's Relativistic Legal Philosophy" (1967, German), Professor Kim Jisu's doctoral dissertation "Methodological Dualism and 'The Nature of Things' in Gustav Radbruch's Thought" (1966, German), Professor Lin Wenxiong's "Legal Positivism" from National Taiwan University, and the Japanese translation of "Gustav Radbruch: A Biography" translated by Professor Nakayoshi Kiyoshi and Professor Yasushi Yamanaka. In April 2002, Professor Suzuki took the opportunity of his visit to Germany to purchase Radbruch's "Legal Philosophy" (Student Edition, edited by Ralf Dreier and Stanley L. Paulson, 1999, German) for me and generously gifted the Japanese translation of Radbruch's works by Professor Tanaka Kōtarō. These materials were highly valuable for my revision of the translation of important concepts and book titles. Overall, the translation process went relatively smoothly. Starting from September 2001, I began the translation work during my spare time from teaching, and by January 2002, when I accompanied the Peking University delegation on a visit to Europe (Italy, Germany, France, the Netherlands, the United Kingdom; this trip was very fruitful, and details can be found in my article "Notes on a European Journey: From Rome to Oxford" in the "Journal of Comparative Law Research" 2002, Issue 4), I had completed the initial translation. After returning to Beijing, I proofread the initial translation based on the Japanese translation by Professor Nakayoshi Kiyoshi and Professor Yasushi Yamanaka, and completed the first round of revisions on March 16, 2002. I then sealed the manuscript and left it until now, because according to the contract, I had to deliver the translation of another book (Robert Alexy's "The Theory of Legal Argumentation") to the Legal System Press by the end of 2002. With deadlines looming, I had to make do with the urgent task. Once the urgent debts are settled, I will have the energy to revisit the old manuscript, and my mind will be much more at ease. It has been a full year since the initial translation was set aside, and coincidentally, Professor Keifu Suzuki has once again come to Beijing for academic research—truly an astonishing coincidence! Perhaps this is the very essence of Radbruch's "happy uncertainty." Everything arises naturally, like the wind that is formless and the water that knows no bounds, yet it leaves a lingering sense of "serendipity." Throughout the entire translation process, I also received selfless assistance from many friends and colleagues. Professor Fei Anling, Dr. Cheng Chunming, Dr. Wu Rihuan, and Dr. Li Juxian devoted great effort to translating and proofreading the Italian, French, and Korean names mentioned in the book. Additionally, at the translation seminar organized by the editorial committee of "Contemporary Masterpieces of German Law," Professors Rolf Knütel of Bonn University, Harro von Senger of Freiburg University, Robert Heuser of Cologne University, and Urlich Manthe of Passau University provided in-depth analysis of German translation itself, which benefited me greatly. My colleague Professor Zheng Yongliu carefully reviewed the manuscript, minimizing errors in the translation. After completing the initial draft, Professors Zhang Shoudong and Zhou Qingfeng helped verify the biblical references, Mr. Xiao Han sent me Dr. Heather Leawoods's English paper "Gustav Radbruch: An Extraordinary Legal Philosopher," and Professor Lin Duanyong of the Sociology Department at National Taiwan University kindly gifted me the Chinese translation of Radbruch's "Introduction to Jurisprudence" (translated by Wang Yiping and Lin Hongtao, Commercial Weekly Publishing House, 2000). These contributions were also highly helpful in revising the translation. Additionally, during my journey of survival and scholarship, Professors Xu Xianming, Wang Renbo, Long Weiqiu, Dr. Wang Yong, Dr. Zhang Sheng, and Dr. Wang Renjie of the Taiwan Jiaotong University have provided long-term support and assistance. I am grateful to them all.
Finally, I would like to make a few necessary remarks about the translation itself. As the saying goes, translation is the most challenging task. The process of translation is also one of continuously approaching the original meaning through reading and understanding. Since there are few translations of Radbruch's works in China, I had to spend a lot of time deliberating on the translation of names, such as Natur der Sache (the nature of things), Gestalten (people, figures), richtiges Recht (correct law), gesetzliches Unrecht (legal injustice), and übergesetzliches Recht (supralegal law). The translation of these terms has been a subject of debate among the members of the editorial committee of "Contemporary Masterpieces of German Law" to this day, and even my own translations of these terms have changed over time. Careful readers may have noticed this discrepancy when comparing my translation of Radbruch's "Maxims of Legal Wisdom" with this biography. To avoid confusion in understanding, I have tried to use footnotes in this translation to explain the changes (as well as unfamiliar terms, figures, and allusions to Chinese readers). Additionally, all footnotes in the German edition have been converted to continuous numbering in the Chinese edition. I hope this will not cause inconvenience to readers.
Although the translation is now complete, it is like walking on thin ice—only by doing one's best can one find peace.
Shu Guoying
March 16, 2003, at Fengying Hall, Peking University
This book is a biography that recalls the life journey and academic thoughts of Gustav Radbruch, a great legal scholar in Germany, written by Arthur Kaufmann, a close disciple of Radbruch and a renowned contemporary legal scholar in Germany, and translated by Professor Shu Guoying of Peking University. Gustav Radbruch is well-known in the field of Chinese legal studies, but little is known about his upbringing, the formation of his legal thought, and his direct participation and influence on German legislation as the Minister of Justice in two German governments. These are precisely the values of this book. As a disciple of Radbruch, the author not only inherits but also develops his own legal thought, so in this book, he objectively reflects Radbruch's real life and inner world, clearly explains the origin of Radbruch's legal thought, and provides convincing interpretations for many of its ambiguities. The main content of the book includes: (1) The First Encounter with Gustav Radbruch; (2) Life's Confusions; (3) Professor and Socialist; (4) The Period of Political Activities; (5) The Weimar Democratic Constitution; (6) Return to Academia; (7) In Spiritual Exile; (8) Legal Innovation; (9) Culture and Religion; (10) War and Peace; (11) Humanitarian, Scholar, Giant. The book is accompanied by a chronology of Radbruch's life and a bibliography of literature on Radbruch. The translator, Professor Shu Guoying, has captured the philosophical essence of the German text while using clear and accessible language suitable for Chinese readers, making it a masterpiece. This book is suitable for undergraduate and graduate students in law schools, as well as for law teachers, judges, and lawyers.