Accommodating Nazi Tyranny? The Wrong Turn of the Social Democratic Legal Philosopher Gustav Radbruch After the War

2016 ◽  
Vol 34 (3) ◽  
pp. 649-688
Author(s):  
Douglas G. Morris
Keyword(s):  
World War Ii ◽  
Legal Theory ◽  
Social Democrats ◽  
Positive Law ◽  
The Social ◽  
Legal Thinking ◽  
Principles Of Justice ◽  
Law And Justice ◽  
Nazi Era ◽  
The Relationship

What is the relationship between Nazism and natural law—the notion of universal standards, which arise from either God, revelation, nature, rationality, or morality, and which human-made statutes cannot break? In 1946, in the wake of World War II, Gustav Radbruch, one of Germany's most respected Social Democrats and legal philosophers, published his influential article, “Statutory Injustice and Suprastatutory Law,” which grappled with a pressing issue of postwar justice. Should courts deem judges criminally responsible for having earlier convicted defendants, and often sentenced them to death, based on denunciations by family, neighbors, or rivals, denunciations that the Nazi regime had encouraged but that a fair-minded government must condemn? As a matter of jurisprudence, Radbruch set forth his famous formula, which declared that judges must adhere to positive or statutory law, except in rare circumstances in which such law violated fundamental principles of justice. In his words, “[P]ositive law, secured through legislation and power, prevails, even if it is substantively unjust and inexpedient, unless the tension between positive law and justice reaches such an intolerable level that the law as ‘false law’ must yield to justice.” As a matter of history, Radbruch excused Nazi-era judges who had missed his jurisprudential point, because they had succumbed to the legal theory of positivism that had long permeated German legal thinking. “Positivism,” Radbruch wrote, “with its belief that ‘law is law’ rendered the German judiciary defenseless against arbitrary and criminal laws.”

Marxist Legal Thought in Poland

Slavic Review ◽  
1967 ◽  
Vol 26 (3) ◽  
pp. 382-394 ◽  
Author(s):  
Grzegorz Leopold Seidler
Keyword(s):  
World War Ii ◽  
Legal Theory ◽  
Legal Consciousness ◽  
World War ◽  
Legal Norms ◽  
The Past ◽  
Positive Law ◽  
The Law ◽  
The Relationship ◽  
Practical Implications

Since World War II, Polish legal theory has focused principally on the sociological aspect of the law, dealing with its origin and social function. Detailed research and analytical studies have supplied information about which social groups have in the past influenced the enactment of legal norms, what their motives were, and what benefits they derived from these laws. As a result of this research the law lost its sacred character. It ceased to be thought of as something extraordinary and came to be regarded realistically as an instrument for the realization of the interests of those groups which had influenced the enactment of the law. This kind of research, however, proved to be insufficient and somewhat one-sided. Consequently, new problems are being considered, and, of these, three are receiving special attention: (1) the evaluation of positive law, (2) the relationship between legal consciousness and socialist consciousness (which might also be called Marxist consciousness), and (3) comprehensive legal research. All of these problems have practical implications for us which, I trust, justify a brief discussion of them here. Inasmuch as these problems are still being investigated and discussed, I will confine myself to mere presentation of them and mention of the efforts that have been made toward their solution.

Czech Social Democracy and its “cohabitation” with the Communist Party: The story of a neglected affair

2008 ◽  
Vol 41 (3) ◽  
pp. 317-338 ◽  
Author(s):  
Lubomír Kopeček ◽  
Pavel Pšeja
Keyword(s):  
Communist Party ◽  
Democratic Party ◽  
Social Democratic Party ◽  
Pragmatic Approach ◽  
Social Democrats ◽  
Unsuccessful Attempt ◽  
Social Democratic ◽  
The Social ◽  
The Right ◽  
The Relationship

This article attempts to analyze developments within the Czech Left after 1989. Primarily, the authors focus on two questions: (1) How did the Czech Social Democratic Party (ČSSD) achieve its dominance of the Left? (2)What is the relationship between the Social Democrats and the Communist Party of Bohemia and Moravia (KSČM)? We conclude that the unsuccessful attempt to move the KSČM towards a moderate leftist identity opened up a space in which the Social Democrats could thrive, at the same time gradually assuming a pragmatic approach towards the Communists. Moreover, the ability of Miloš Zeman, the leader of the Social Democrats, to build a clear non-Communist Left alternative to the hegemony of the Right during the 1990s was also very important.

scholarly journals The (Immediate) Post-World War II Period

2020 ◽  
pp. 168-189
Author(s):  
Antonello Tancredi
Keyword(s):  
World War Ii ◽  
International Law ◽  
Interwar Period ◽  
World War ◽  
Post World War Ii ◽  
Theoretical Approaches ◽  
The Social ◽  
International Legal Order ◽  
The Relationship ◽  
Domestic Law

This chapter addresses the development, after World War II, of two different currents of thought inherited by the Italian international law doctrine from the interwar period: dogmatism and structuralism. The analysis of some fundamental writings concerning topics such as the foundation and the social structure of the international legal order tries to offer a reading lens on some of the most important scientific trends (especially ‘realism’ and ‘neo-normativism’) of the post-World War II period and on the scholars that animated such approaches. Thanks to the identification of some structuring ideas, it will then be possible to briefly examine other issues concerning, for instance, the relationship between international and domestic law after the 1948 Republican Constitution, sovereignty, etc. The evolution of the methodology of international law will have a relevant part in the analysis of theoretical approaches developed by Italian scholars in this period.

scholarly journals Liberal Globalization and Peripheral Justice

2004 ◽  
Author(s):  
Weigang Chen
Keyword(s):  
Ethical Life ◽  
The West ◽  
Post Cold War ◽  
Cultural Conflicts ◽  
Public Reasoning ◽  
The Social ◽  
Full Explanation ◽  
Principles Of Justice ◽  
The Relationship ◽  
Marxist Tradition

The increasing salience of cultural conflicts in the post-Cold War era brings the problem of peripheral justice, defined as the equal attainment of social justice, to the center of current debates on globalization. Specifically, they force us to directly confront the toughest challenge posed by the Weberian tradition: If the principles of justice and equality are beyond the peculiarity of the Occidental civilization, how then may we give a full explanation as to why in the West-and only in the West-the ideal of public reasoning by private people has been materialized? The present study seeks to address this fundamental challenge by drawing on the Marxist tradition of public hegemony developed by Confucian Marxists and Gramsci. I argue that at the core of the problem of peripheral justice is an intrinsic linkage between Eurocentricism and the liberal paradigm of "civil society." The prospect of equal justice, therefore, hinges on the development of a new conception of the "social" that reverses the liberal interpretation of the relationship between bourgeois subjectivity and the "social" and derives from the primacy of the ethical life for social formation.

Ordoliberalism, the Social-Market Economy, and Keynesianism in Germany, 1945–1974

2017 ◽  
Author(s):  
Harald Hagemann
Keyword(s):  
Economic Policy ◽  
World War Ii ◽  
Market Economy ◽  
German Economy ◽  
Social Market Economy ◽  
West German Economy ◽  
Federal Republic Of Germany ◽  
Social Democrats ◽  
The Social ◽  
Social Market

The chapter deals with the development of the welfare state in the first three decades after World War II, in which the West German economy ran through a remarkable catching-up process. Economic policy in the new Federal Republic of Germany in that period was decisively shaped and influenced by the ordoliberal ideas of Walter Eucken and the Freiburg school and the principles of the social-market economy. Whereas Keynesianism of the Hicks-Samuelson neoclassical synthesis had already evolved into the dominant view in the academic sphere during the 1950s, it took until the 1966–67 recession for Keynesianism to find a late (and short) entry into German economic policy with the entry of the Social Democrats into government and their charismatic minister of economics, Karl Schiller.

Reconciling the Irreconcilable? Left-Wing Ukrainian Nationalism and the Soviet Regime

2019 ◽  
Vol 47 (3) ◽  
pp. 341-354
Author(s):  
Christopher Gilley
Keyword(s):  
Soviet Union ◽  
Soviet Regime ◽  
Left Wing ◽  
Common Currency ◽  
Social Democrats ◽  
Great Famine ◽  
The Soviet Union ◽  
The Social ◽  
Form Of Government ◽  
The Relationship

AbstractThis article examines the attempts by left-wing Ukrainian nationalists to reconcile the seemingly irreconcilable: Ukrainian nationalism and Soviet socialism. It describes how leftist Ukrainian parties active during the Revolution and Civil War in Ukraine 1917–1921 advocated a soviet form of government. Exiled members of the two major Ukrainian parties, the Social Democrats and the Socialist Revolutionaries, then took this position further, arguing in favor of reconciliation with the Bolsheviks and a return to their homeland. After the Entente recognized Polish sovereignty over Eastern Galicia and Soviet Ukraine introduced a policy of Ukrainization in 1923, many West Ukrainian intellectuals took up this call. The Great Famine of 1932–1933 and the Bolsheviks’ purge of Ukrainian Communists and intellectuals all but ended the position. However, it was more the Soviet rejection of the Sovietophiles that ended Ukrainian Sovietophilism than any rejection of the Soviet Union by leftist Ukrainian nationalists. Thus, an examination of the Ukrainian Sovietophiles calls into question the accounts of the relationship between Ukrainian nationalism and the Soviet Union that have common currency in today’s Ukraine.

The Italian Socialist Party: A Case Study in Factional Conflict

1962 ◽  
Vol 56 (2) ◽  
pp. 372-390 ◽  
Author(s):  
Raphael Zariski
Keyword(s):  
World War Ii ◽  
Political Development ◽  
Democratic Party ◽  
Party System ◽  
Socialist Party ◽  
Major Party ◽  
Social Democrats ◽  
The Social ◽  
Political Spectrum ◽  
The Right

The Italian Socialist Party (PSI) is one of the three major groupings—the Social Democrats, the Socialists and the Communists—that have cultivated the ground to the left of center (i.e., to the left of the ruling Christian Democrats) in Italian politics since World War II. As recently as 1951, the PSI appeared to be inextricably linked with the Communists; but the Socialists have gradually worked themselves around to the position, early in 1962, of openly supporting a Left-Center coalition government still headed by the Christian Democrats. This drastic alteration in the Italian political spectrum has created new possibilities for Italy's political development. It has already permitted the long-awaited “opening to the Left”—as a basic alternative to governments dependent on the Center-Right—under which Italy will be ruled by a coalition of Christian Democrats, Republicans, and Social Democrats, with the PSI offering its support in Parliament in exchange for a bold program of economic planning and social reform. But some Socialists see a further possibility: the so-called “Socialist alternative.” They hope for the possible development of the PSI into a second major party in a two-party system which would absorb the great bulk of the Italian electorate, with the exception of minor extremist fringes to the right and left. To be sure, the success of the “opening to the Left” and the eventual emergence of a “Socialist alternative” both depend on the continued supremacy of the more progressive factions within the ranks of the Christian Democratic Party.

scholarly journals FILSAFAT HUKUM DALAM PUTUSAN PENGADILAN/HAKIM

2015 ◽  
Vol 9 (1) ◽  
pp. 91
Author(s):  
Marihot Janpieter Hutajulu
Keyword(s):  
Social Context ◽  
Court Ruling ◽  
Philosophy Of Law ◽  
Legal Consideration ◽  
Positive Law ◽  
The Social ◽  
The Law ◽  
Law And Justice ◽  
Sense Of Justice ◽  
Legal Product

<p><strong>Abstrak</strong><br />Putusan pengadilan merupakan produk hukum yang dihasilkan oleh hakim berdasarkan suatu pertimbangan mendalam atas fakta-fakta hukum yang diajukan kepadanya untuk diputuskan berdasarkan hukum dan keadilan. Oleh karena itu, hakim dalam memutuskan perkara yang diperiksanya, selain harus mendasarkan diri kepada hukum positif, ia juga perlu menggali rasa keadilan yang berkembang di dalam masyarakat. Tulisan ini mencoba untuk menganalisis pengaruh filsafat hukum khususnya yang menyangkut masalah keadilan dalam putusan hakim. Hal ini disebabkan putusan hakim selalu dipandang sebagai sebuah upaya menghadirkan hukum yang kontekstual bagi para pencari keadilan. Hakim oleh karenanya harus dapat menemukan hukum yang bersandar kepada nilainilai yang hidup di dalam masyarakat, khususnya konteks sosial dari perkara sedang yang diperiksanya. Untuk menemukan hukum seperti itu, hakim harus berani keluar dari paradigma legal-positivistik dalam melakukan penafsiran hukum, terutama dalam isi pertimbangan hukum putusannya.</p><p> </p><p><strong><em>Abstract</em></strong><br />The court ruling is a legal product that is generated by a judge based on a deep consideration of the legal facts submitted to him/her to be decided based on law and justice. Therefore, in addition to relying on positive law, in deciding cases it is also necessary for the judge to discover the developing sense of justice in the society. This paper attempts to analyze the influence of the philosophy of law, especially concerning the issue of justice in the judge's decision. This is relevant due to the assumption that a judge's decision is an effort to bring the law in context for those seeking justice. The judge must therefore be able to find the law based on the living values of the society, especially in the light of the social context of the particular case being examined. To find such law, the judge had to venture out of the legal-positivistic paradigm on its interpretation of law, particularly in the content of the legal consideration of his/her ruling.</p>

scholarly journals Analiza terminów „stosunek społeczny” a „stosunek prawny”

2018 ◽  
Vol 4 (1) ◽  
pp. 146-158
Author(s):  
Tomasz Bekrycht
Keyword(s):  
Social Relationship ◽  
Legal Theory ◽  
Social Systems ◽  
Legal Rule ◽  
Legal Philosophy ◽  
Correct Description ◽  
Positive Law ◽  
Legal Relationship ◽  
The Relationship ◽  
Insight Into

Analysis of terms ‘social relationship’ and ‘legal relationship’ in the literature of legal theory and legal philosophy encounters many difficulties especially because of the ambiguity of such terms as ‘law’, ‘positive (statutory) law’, ‘rule’, ‘legal rule’, ‘norm’ and ‘legal norm’. Insight into the mentioned above literature points out that particularly the former pair of these notions have been so far wrongly considered as equivalent. It does not result a correct description of the relationship between different normative social systems such as statutory (positive) law, morality, religion and customs. Next it translates into a numbers of disputes about the content of positive law both in law-making’ and law-applying’s decisions.

scholarly journals The Role of Justice in the Relationship of Sexism and Violence Against Women

2021 ◽  
Vol 55 (3) ◽  
pp. e1591
Author(s):  
Tamyres Tomaz Paiva ◽  
Cicero Roberto Pereira
Keyword(s):  
University Students ◽  
Romantic Relationships ◽  
Violence Against Women ◽  
Social Inequalities ◽  
The Social ◽  
Scope Of Justice ◽  
Principles Of Justice ◽  
Relationship Of ◽  
The Relationship

The application of the principles of justice is restricted in romantic relationships, contributing to the acceptance of violence against women. The objective was to analyze whether the perception of university students about the scope of justice will be the element that justifies the acceptance of violence against women. 305 university students participated. The results showed that the most sexist people, who also believe that the world is a fair place, are the ones that restrict the scope of justice application the most, that is, they perceive marriage as being excluded from that scope. Therefore, this study adds important data in studies on the role of the social context in legitimizing social inequalities.

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