CRITICAL EVALUATION OF RADBRUCH’S FORMULA

Abstract

Under the influence of the political and historical context in the eve of World War II – Gustav Radbruch, postulated the formula of intolerability and refutation. Through them, he developed his thesis that a judge should not apply laws which are iniquitous, meaning they breache the priciple of equalty, which is also the core of justice. A problem with such an authorisation inevitably imposes itself through the question of subjectivity of an individual judgement, because justice is evaluated in relation to values. Such a demand of justice does not tell us whom to consider equal. In this paper an attempt will be made to find a solution which would least compromise legal certainty by moral relativism – on the basis of Kelsen’s and Rawls’ ideas of justice, as well as the hypotesis that the goal of law is to serve individuals of the community which it regulates. It will be assesssed whether it is more consistent to modify Radbruch’s idea, through an indipendant body with extralegal authorities – grounded on democratic insitutes.