RADBRUCH Y EL ARCO GÓTICO

Abstract

Radbruch’s philosophic system is, from my point of view, both tense and complex, but not contradictory. Security fights against justice; the judge subject to law fights against the ethos of the judge, which is justice; positive law is uncompatible with natural law; relativism does not admit a blind faith in values; natural law is against, even, the nature of the thing, etc. In the face of all this what is more intelligent is a relativism with the aim of objectivity. A relativism which bases law on tolerance and freedom, whose moral duty of obedience is in security. But there are extremely inhuman and shameful circumstances in which the laws can be unjust and harmful to such a degree that not even elemental security can justify them, so that there is a real moral duty to deny them validity. In this case, the moral duty of disobedience is founded on justice, that is on principles that are stronger than any legal provision and which are called natural law. I see no contradiction whatever that in normal circumstances the moral grounding of the validity of positive norms is centered on the value of security and that, in exceptional circumstances, it is the most elemental justice (natural law) which denies validity and obedience to extremely inhuman laws. I see no contradiction then in the path that runs from relativism to iusnaturalism, passing through, I would say, the so called “nature of the thing”.