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Radbruch and Hart on the Grudge Informer: A Reconsideration[Note 1. I wish to thank Robert Alexy, Stanley L. Paulson, ...]
Author(s) -
Mertens Thomas
Publication year - 2002
Publication title -
ratio juris
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.344
H-Index - 10
eISSN - 1467-9337
pISSN - 0952-1917
DOI - 10.1111/1467-9337.00204
Subject(s) - law , verdict , argument (complex analysis) , statutory law , statute , morality , political science , face (sociological concept) , philosophy , sociology , biochemistry , chemistry , linguistics
Hart's defense of the separation of law and morality is partly based on his refusal to accept Radbruch's solution of the well‐known grudge informer case, in his famous article “Statutory Injustice and Suprastatutory Law.” In this paper, I present a detailed reconstruction of the “debate” between Radbruch and Hart on this case. I reach the conclusion that Hart fails to address the issue that was Radbruch's primary concern, namely the legal position of the judiciary when dealing with criminal statutes. I suggest that Hart's separation thesis cannot be upheld in the face of this concern. In my argument, Hart's mistaken understanding of the verdict of the Oberlandesgericht Bamberg that he refers to plays a crucial role.