The law – morality conundrum: on the multifaceted sources of normativity

Research output: Contribution to journalArticle

Abstract

The paper addresses the substance of what is known as Radbruch’s formula: even though in plain cases law can contradict some principles of morality, if the law is extremely unjust it should not be applied/it cannot be considered as law at all. The paper analyses it from the perspective of the addressees of this formula. My hypothesis is that the instances of manifest injustice cannot be explained without analyzing the issue of individual will, which so far has not received sufficient attention in legal philosophy. This implies that, unlike most of the literature on Radbruch’s formula, this paper takes the bottom-up and not the top-down approach, being primarily concerned with the addressees rather than the addressors of the formula. I will put forward then the concept of individual autonomy, which should ultimately mitigate the prima facie doctrinalism of exclusive legal positivism without destroying its core premises.
Original languageEnglish
Pages (from-to)1-28
Number of pages28
JournalRechtstheorie
Volume44
Issue number1
Publication statusPublished - 2013

Keywords

  • law-morality conundrum
  • Radbruch’s formula
  • exclusive legal positivism
  • individual autonomy
  • the nature of rights

Cite this