ABSTRACT
I am, of course, borrowing my title and ambition from Gustav Radbruch. 1 The Social Democratic politician and legal philosopher was born in 1878 and served as Justice Minister during the early years of the Weimar Republic. He died in 1949. The ‘Five Minutes’ anticipated and captured the gist of his famous 1946 Lawlessness essay, 2 in which he observed that the Nazi judiciary had been rendered ‘defenceless’ by Legal Positivism. He went on to state that the discrepancy, however, between Nazi ‘law’ and law built on Zweckmäßigkeit (expediency) and Gerechtigkeit (justice) had been so significant that the former could not have been ‘law at all’. In his 1945 sketch for the Rhein-Neckar-Zeitung newspaper, we find this idea expressed already in succinct form, delivered in five short paragraphs. The first paragraph (‘Minute’) states that for both soldiers and lawyers/judges, the Nazi formula was that orders had to be obeyed, but in law it is required of the judge to evaluate whether there is an unbearable discrepancy between what is the ‘law’ and what ‘ought’ to be the law in light of considerations of expediency and justice. Minute 2 was devoted to the pronouncement that not all that serves the people would count as ‘law’, but rather that only what ‘is’ law serves the people. In Minute 3 he stated that law had to strive for justice, which meant that it must be committed to the respect for the individual and strive for equal protection for all. The next Minute, the fourth, is crucial as Radbruch here addresses the final element to accompany expediency and justice. That element – legal certainty – however, can of course be central to any authoritarian or non-authoritarian rule of law: in response to the concept’s attractive elusiveness and instrumentalizability, 3 Radbruch formulates the phrase later famously endorsed in the Lawlessness essay: legal certainty has to back down where the gap between the law and what we think law must be becomes unbearably wide. In the fifth Minute, he provides us with the justificatory basis on which to evaluate and bridge the gap; referring to a core content of natural law, as it evolved over the course of centuries, Radbruch suggests that it is God’s law that will ultimately strike the balance.
