The Application of Radbruch’s Formula as a Limitation of the Principle of nulla poena sine lege by the Federal Constitutional Court of Germany

Abstract

The most important questions for legal philosophy are not only the question of “What law is” or “whether a legal norm that violates the concept of justice valid as a law”, but also “What should we do if that is the case?”. The great example for the situation was after the second world war, when Germany faced the most challenging task to restore its collapsed legal system.

Gustav Radbruch was a German legal philosopher; whose article were highly influential for German legal system in that time. “Radbruch’s Formula” is important not only in academics, but also in legal profession. It provides the solution of the conflict between legal security and justice, which the supreme court and the federal constitutional court of Germany acknowledged and applied to the cases.

In this article, I would like to explore Radbruch’s fundamental idea that led to his famous formula and then show how the federal constitutional court of Germany apply it to the case of the Berlin wall snipers as a limitation of the principle of “nulla poena sine lege”