Radbruch's Formula revisited: The 'Lex Injusta Non Est Lex' Maxim in constitutional democracies

Abstract

According to German legal philosopher Gustav Radbruch, laws that are substantively unjust to an intolerable degree should not be regarded as legally valid, even if they were promulgated according to stipulated procedure. Radbruch's Formula (as his position has been termed) contradicts the central tenet of legal positivism, according to which the existence of laws does not necessarily depend on their merit. While some legal positivists suppose that legal invalidity based on the content of particular laws is a central tenet of natural law theory, natural law theorists such as John Finnis opine that the lex injusta non est lex maxim has been no more than a subordinate theorem of classical natural law theory. In Finnis's view, unjust laws give rise to legal obligation "in a legal sense."