Beyond Judgement

In the conclusion to Grundfragen einer Rechtstheologie, the theologian Gottlieb Söhngen cited a maxim, which Gustav Radbruch had included in a book of quotes which he sent to his son Anselm, when he served at the Russian Front, in 1941. ¹ The maxim, written by the poet Albrecht Schaeffer, declared that the objectivity of law is a prerequisite for justice. ² Yet, to be objective is to become like an object and, hence, inhuman, and to be inhuman is to be unrighteous and unjust. With this passage, Radbruch, the former Minister of Justice of the Weimar Republic, reminded his son that even the foundations of law—objectivity and legal certainty—could become instruments for injustice, as he explicitly insisted in 1948: “Objectivity and legality are sufficient as long as the state is in respectable hands. But if, to quote St. Augustine, the state becomes a large band of robbers, then only faith in higher values can help, and in that case, the hot iron of justice must prevail over all considerations and fears.” ³ The problem for Radbruch was whether equity, objectivity, and even justice could protect the state from the threat of such “statutory lawlessness.” ⁴