Gustav Radbruch: Legal Thinker, Philosopher, and Social Democrat

Author: (German) Kaufmann, translated by Shu Guoying
Publisher:
Publishing Date: 2004-01-01
Features: The postscript I myself can't quite explain why I have been particularly fascinated by Radbruch in recent years: not only for his legal theory, but more importantly, for Radbruch the person. Radbruch is a mystery waiting to be unveiled: he established the doctrine of relative value in law, but we seem unable to grasp the systematic nature 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 in his writings about legal phenomena, yet he did not inherit the unique dialectical tradition of the Germans (especially represented by Hegel and Kant) to construct a purely deductive conceptual (formal) system for his theoretical framework; he had a natural aversion to legal scholarship, yet he chose to pursue criminal law research, which requires a talent and interest in dogmatics (hermeneutics), as his career, and surprisingly achieved remarkable accomplishments in both criminal law research and legal philosophy; he yearned for a complete life like Goethe, but unfortunately, he was born at the wrong 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 and 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) on him. But unfortunately, the results of this effort only deepened my doubts: some introductions to Radbruch are vague and lack detail when it comes to the finer points. Fortunately, at the same time, my colleague Professor Mi Jian brought back from Germany Arthur Kaufmann's "Life of Radbruch," published in 1987. I borrowed it and felt like I had found a treasure. Arthur Kaufmann was one of the most important legal philosophers in Germany after World War II and was Radbruch's last disciple before his death. It should be said that he knew Radbruch's life, personality, and scholarship like the back of his hand. Moreover, he had a bird's-eye view, excellent summarization skills, and precise commentary abilities (as can be seen in his other works), making him the most suitable person to write an academic biography of Radbruch (in fact, there are dozens of such biographies of Radbruch available). In fact, Kaufmann did not disappoint the expectations of many scholars. With his lively and engaging writing style, 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 enlightened sage, stepping into his little-known life and inner world. 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 must first familiarize themselves with their life, so that we can achieve a spiritual connection with the subject itself. 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 Press in October 2001) ten days before his death, I understood that he had already absorbed some of Radbruch's spiritual qualities. Professor Kaufmann's attention and support for my translation work were the guarantees that allowed me to complete the translation. In his letter dated December 3, 1998, he wrote: "If I can provide any form of assistance, please do not forget to let me know." Professor Kaufmann was a man of his word, and 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 saddened 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 my grief, in November 2001, I had the fortune of meeting Professor Keifu Suzuki of the Faculty of Law at Sapporo Gakko University in Japan (Prof. Dr. Keifu Suzuki), who is also a devoted scholar of Radbruch. At the time, he was giving lectures at several universities in Beijing. According to Professor Suzuki, his predecessor, Professor Toshita Tokiwa, was the only Japanese student Radbruch ever mentored. With such academic ties, it is no wonder that Professor Suzuki is deeply committed to Radbruch's scholarship and truly embodies his spirit (he once said: "My research on Radbruch is a spiritual destiny." And how about me? I feel the same way!). His magnum opus, "Introduction to Legal Philosophy" (published by Seiyo Shobo in 1988), primarily 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 works such as Radbruch's "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. During our short conversation, he told me about the process of Radbruch's visit to Oxford University and the state of Radbruch research in Japan and South Korea. What is even more valuable is that after returning to Japan, Professor Suzuki provided me with some materials on researchers mentioned in Kaufmann's biography, such as the edited volume "In Memory of Professor Tjong Zong Nk" by Hans-Heinrich Jescheck, Professor Tjong Zong Nk's doctoral dissertation "The Path 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 "The Life of Gustav Radbruch" by Professor Nakayoshi Kiyoshi and Professor Nakayama Keiichi. 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 Tanaka Kōtarō. These materials were very helpful for me to revise the translations of important concepts and book titles in this book. 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, and the United Kingdom), I had completed the initial translation. After returning to Beijing, I proofread the initial translation based on the Japanese translation by Nakayoshi Kiyoshi and Professor Nakayama Keiichi, and completed the first round of revisions on March 16, 2002. I then sealed the manuscript and put it aside, 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 Press by the end of 2002. With deadlines looming, I had to make do with the urgent task. Once the urgent debts were settled, I would have the time and energy to revisit the old manuscript, and my mind felt much more at ease. The initial translation had been on the desk for a full year, and coincidentally, Professor Keifu Suzuki returned to Beijing for another visit of study. It was truly a remarkable coincidence! Perhaps this is a testament to Radbruch's "happy uncertainty." Everything happened naturally, like the wind, invisible and boundless, yet it left 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, during 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, reducing the number of errors in the translation as much as possible. After completing the initial draft, Professors Zhang Shoudong and Ms. Zhou Qingfeng helped verify the biblical references, Mr. Xiao Han sent me 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 materials were also very helpful for me to revise the translation. Additionally, during my life and academic pursuits, 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 inquiries and assistance. I would like to express my gratitude 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 (supra-legal law). The translation of these terms has been a point of contention 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, I have tried to use footnotes in this translation to explain the changes (as well as terms, figures, and allusions that may be unfamiliar 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 the 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 the German legal master Gustav Radbruch, written by Arthur Kaufmann, a renowned contemporary German legal scholar and Radbruch's personal disciple, 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 Radbruch's disciple, 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) Returning to Academia; (7) In Spiritual Exile; (8) The Innovation of Law; (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.