Gustav Radbruch vs. Hans Kelsen: A Debate on Nazi Law*

Abstract

Can the label "law" apply to rules as amoral as the enactments of the Nazis? This question confronted the courts in Germany after 1945. In dealing with it, the judges had to take sides in the philosophical debate over the concept of law. In this context, the prominent voices of the legal philosophers Gustav Radbruch and Hans Kelsen could not go unheard. This paper draws on what could have been the "Radbruch-Kelsen debate on Nazi law." In examining the debate, it will argue for a substantive account of the morality of the law, as expressed in Radbruch's formula.