法の効力について : G・ラートブルッフの哲学的効力論

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This subject this essay is found in Chapter 10 of "Rechtsphilosophie" (1973), Gustav Radbruch's main work. In a passage inttroducting his main point, he says. "but does not such a philosophical doctrine of validity necessarily identity identify the valid with the right law the right with the valid law, positive validity with absolute validity? Does it not relapse into the errors of natural low which denied the validity of wrong law just because it is wrong law ascribed validity to right law just because it is right? No doubt if the purpose of the law and the means necessary to attain it could be known with scientific clarity, the conclusion would be inescapable that natural law, once it was scientifically recognized, must extinguish the validity of positive law deviating there from, just as the disclosure of truth must extinguish the exposed error. The validity of demonstrably wrong law cannot conceivably be justified. However, any answer to the question of the purpose of law other than by enumerating the manifold partisan views about it has proved impossible - and it is precisely on the impossibility of any natural law, and on that alone, that at the validity of positive law many be founded. At this point relativisms, so far only the method of our approach, enters our system as a structural element. Ordering their living together cannot be left to the legal nations of the Individuals who live together, since these different human beings will possibly issue contradictory direction. Rather, it must be uniformly governed by a trans individual authority. Since, however, in the relativistic view reason and science are unable to fulfill that task, will and power must undertake it. If no one is able to determine what is just, somebody must lay down what is to be legal; and if the enacted law is to fulfill the task of terminating the conflict of opposing legal views by authoritative fiat, law must be enacted by a will which is able also to carry law through against any contrary legal view. "Justice is the second great task of the law, while the most immediate one is legal certainty, peace, and order." But such cannot remain the last word of legal philosophy on the question of validity. Only this has been established, that legal certainty too is a value and that the legal certainty which positive law affords may justify even the validity of unjust and inexpedient law. Not established, though, has been any absolute precedence of the demand of legal certainty, which is fulfilled by any positive law, over the demands of justice and expediency, which it may possibly have left unfulfilled. The three aspects of the idea of law are of equal value, and in case of conflict there is no decision between them but by the individual conscience. So the absolute validity of all positive law as against every individual cannot be demonstrated. It would indeed be miranculous it something real should have value and validity throughout. The individual conscience usually will, and properly may, deem an offense against positive law more objectionable than the sacrifice of the individuals own legal conviction, but there many be shameful law swhich refuses to obey." Kadbruch, who used to advocate relativism of values, wrote, after experiencing the tragedy of Nazi Germany, a paper entitled "Injustice of the positive law and the law that surpasses enacted laws" criticizing positivism, which repudiated human rights, and indicating his fascination with the natural law. He says, "Relativism advocates universal tolerance but it should stop short of tolerating intolerance." This essay discusses the degree of his receptivity to the natural law shown in his pet theory, "philosophical doctrine of validity". (Grundlegend Erik Wolf, Gustav Rudbruchs Leben und Werk, Einleitung des Herausgebers, Rechtsphilosophie, 1973, SS. 17〜〜77. und Zong Uk Tjong, Der Weg des rechtsphilosophischen Relativismus bei Gustav Radbruch, 1967, SS. 58〜75.)
札幌学院大学の論文
2005-03-30

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鈴木敬夫
札幌学院大学

法の効力について : G・ラートブルッフの哲学的効力論

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