Page 104 - kpi17968

93

and it has also been wrong most of the time in the German
understanding. Actually, the development of rule of law in
Germany probably came very much from the natural law concept
and this natural law concept were not only formalistic but also
quite substantive in their main contents. We then had, in the 19
century, started this period of very positivistic view which you
could argue that it is more formalist approach.

I am reminded of this quote of the famous author of legal
philosopher in Germany, Gustav Radbruch (1878-1949). He was
the Minister of Justice in Germany during 1920’s and a Social
Democrat. He made a lot of reforms in criminal law system in
Germany. He was also a legal philosopher and he was one of the
positivist. He was convinced of the idea that the law is the law
because it is the law. The approach behind is that it takes
legitimacy from the process of law making from that was a
democratic process of law making. Since they are democrat, they
say we have no alternative, we cannot say we do not respect the
law and stand above the parliament who is the elected body and
who made that law. In light of what happen, then, with the
national socialist in Germany that crimes during 1933-1945, it
was obvious that the formalist approach got in a very big pressure
because we learn the consequences that at least the understanding
of that time was that even democracy can demolish itself and you
can elect a kind of tool to have direct dictatorship which commit
all kind of crimes. So, the pure formalist approach was then under
criticism and has to be revisited.

Radbruch famously wrote an article from 1946 which called
“Five Minutes of Legal Philosophy”. I think it was one of the
nicest texts of legal philosophy because it was only 5 minutes long.
It was so substantive and it started with those words “An order is
an order, the soldier is told, a law is a law save the jurist.” And
then, he discussed this point and at the end he said that we still
had this concept of legitimacy because the law is made by
parliament. It has the assumption of being legitimate source of
law, but law can be so unjust that we cannot accept as law at all in
the end. So, there has to be an exception to the rule of this
assumption. I think that important thing is the standard of our

การอภิปรายรวมระหวางผูแทนจากตางประเทศ