The significance of Radbruch’s formula(s): some remarks on a still contemporary debate

Abstract

Radbruch’s Formula(s) is(are) an important landmark for the development of inquiries on Jurisprudence and the Philosophy of Law since the Second Post-War. Their content and reach are subject to remarkable debates in legal scholarship, in which Robert Alexy’s and Brian Bix’s readings are particularly notable. The first holds that the Formula(s) is(are), simultaneously, claims regarding the concept of Law and prescriptions to judicial decision-making. The latter advocates that the Formula(s) is(are) solely directed to decision-makers. Júlio Aguiar de Oliveira, after detailed scrutiny of these arguments, suggests a third interpretation, according to which the Formula(s) is(are) only conceptual claims. The present article, in this scenario, addresses the terms of this debate, departing from a panoramic analysis of the stakes of each argument, while emphasising their different (and irreconcilable) perspectives. It sustains, at last, that the context in which the Formula(s) was(were) first enunciated strongly corroborate Bix’s thesis, in the sense that it(they) is(are), at least primarily, prescriptions to judicial decision-making.