The Radbruch Formula versus Cathrein Formula

Abstract

An analysis of Victor Cathrein’s comment on values and positive law allows one to extract such formulations that can be called, by way of analogy to the Radbruch formula, the Cathrein formula. A comparison of views held by Gustav Radbruch and Victor Cathrein has not been, it seems, a subject of legal-philosophical research. Radbruch himself never directly pointed to his inspiration by Cathrein’s views, although he was well acquainted with the legal-philosophical work entitled: Recht, Naturrecht und positives Recht. Eine kritische Untersuchung der Grundbegriffe der Rechtsordnung (Freinburg im Breisgau, 1901). In 1911, he wrote a review of the second edition of 1909.

Although Gustav Radbruch is known as a representative of Baden School of Neo-Kantianism, a fact which obviously refers us to his predecessors and mentors, yet it remains a mystery what the theoretical grounds are for a change in his position, or a “different arrangement of focal points” in the post-war era. He then realigned his theory. From then on, he associated the notion of law with values which were not relative. With regard to the lawmorality relation (whether and under what circumstances positive law may not be applied if it infringes the basic moral principles), Radbruch’s response does not contradict Acquinas’ reply. It seems justified to ask whether Neo-Kantianism still plays any constructive role. With due respect for interpretations of Radbruch’s formula created to date, the presented article attempts an analysis from a different perspective. This Christian perspective, particularly in the context of Cathrein’s views, constitutes the object of the presented study.