RADBRUCH LEGAL PHILOSOPHY 7 185

184 GUSTAV
#) ‘suffer the consequences of his actions. (We repeat what has been said
the law of inheritance is confronted with its social function, and ‘ore:) The'thief, by violating another’s ownership, wants to establish
right of inheritance is placed under the axe of the law.
ership of his own; thus he in principle affirms that the legal interest
violates is worthy of protection; consistently, he must approve the
‘punishment of the disturber which is indispensable to protect that legal
SECTION 22 "initerest, hence his own punishment, The forger of a document claims
" for the forged document the very faith of the public which he himself
Tue Penat Law violates by his forgery— thus, he again affirms what is implicit-in the
Whether he’s to spare or punish,
egal interest worthy of protection and in the legal provisions necessary
He must see men humanl y.
— Goethe for its protection, namely, the penal law under which he falls, By thus:
“regarding as willed by the perpetrator through his deed what he consist-
In the theory of penal law it is traditional to distinguish doctrin ently would have.to will, the criminal, in Hegel’s words, is honored as a
concerning the justification and doctrines concerning the end, of p tional being and the punishment is deemed his own right which his
ment. tion involves.
While the theory of consent represents the individualistic’ justification
punishment, the theory of retaliation, the justification of punishment
The Justification of Punishment. The quest for the justification ‘on the ground that it is deserved, is: based on authoritarian lines of
punishment sprang from the very particular historical situation of a
jought 1 — even though its principal representative is the great founder
time when the individual was faced by the state as something foreign, ‘autonomy: Kant. The justification of punishment ‘by the theory of
state, not yet based on the popular will, in which he had no active iation, independent of individual consent and individual. interest,
In that situation, the punishment required by the purpose of the been expressed in that. famous parable of Kant’s: ‘‘Even if a civil
was still in need of special justification in the eyes of the indivi ciety dissolved itself upon the agreement of all its members (for in-
For, as Kant says, “man may never be treated as a mere means to | ce, the people inhabiting an island resolved to break up and disperse
designs of another and mingled with the objects of the law of prop er’ roughout the world), the last murderer’ in jail would first have to be
being protected therefrom by his innate personality” —the sta uted in order that everyone may suffer what his acts deserve and
simply “another” as against the individual! In such a view of the blood-guilt shall not rest upon the people.” Quite unexpectedly,
punishment by the state is justifiable in two ways only: by sho people” appears here not as a sum of individuals but as carrying a
either that it is willed by the criminal himself or that it is desery sindividualistic: value of
; f its own, which outlasts the individual
« by him.
ests. oe th
” Theories of Consent and of Retaliation. The first theory, that of SS |
The End of Punishment. In both its forms, the justification of punish-
sent, was advocated by Feuerbach in his early days, in the s
assuming an actual consent of the real criminal to his punishmen: it without regard to the state belongs to the past. The state which is
don the popular will, whether on an arithmetical majority or on
who commits the crime, knowing the penal law—which Feue
ent to the ©
— consents
requires as the presupposition of punishm e other kind of “integration,” faces the individual no longer as
other” but rather as “we all.” The justification of the people’s state
tion by engaging in the conditional act. On him, punishment may b
posed with the same right as entitles one to claim fulfillment of a Ss understood includes the justification of the punishment necessary
its preservation. So the doctrine of the justification of punishment is
tract once it is made. This empiristic doctrine is cast in a more sp
form by assuming a contract which either is similar to the social con « Ricarp Schmit, Die STRAFRECHTSREFORM® IN IHRER STAATSRECHTLICHEN
or is possibly inserted therein as'a clause. By such a contract, the POLITISCHEN BEDEUTUNG (1912) 10. R. Schmidt finds a transindividualistic
vidual, in the event he should commit a crime, has submitted in ad: ‘Mm retaliation only in so far as it is a justification of punishment; he sees a
to: punishment— not. indeed. the real individual, but the indiv al government-of-laws view in retaliation in so‘far as it is an end of punish-
cf. infra, n, 2.
thought of as a rational being, to whom is imputed the consistent y |
186 GUSTAV RADBRUCH LEGAL PHILOSOPHY 187

mergedin the doctrine of the justification of the state. What remains _ tive degrees of culpability, However, while the doctrine of retaliation
only the doctrine of the end of punishment, that is, of the necessity “may be fully developed ‘out of the conception of commutative justice,
punishment for the state or, speaking more precisely, for the state the conception of distributive justice is not sufficient to derive therefrom
society, or the legal order. These different possibilities of determinin the theories of the end of punishment. To be sure, distributive justice of
the end of punishment will. unfold themselves as we proceed now unishment means that the equally: incriminated ought to be punished
develop the idea of punishment from the idea of law and its threefol¢ equally, and the unequally incriminated in proportion to their incrimi-
ramification in justice, expediency, and legal certainty. - nation. But it leaves us in doubt, on the one hand, by what standard
we are to measure equality or difference of incrimination, whether by
Penal Law and Justice: Commutative and Distributive. 1. Justic _ culpability, dangerousness, or what else. On the other hand, it tells us
offers first the form of commutative justice.as a possible basis of punish- - only the relation of penalties.to one another but not their’ absolute
ment. Just as the price corresponds to the goods, the wage to work,” _ severity and kind, only the place of any penalty within a given system
compensation to damage, so punishment would then correspond to th _ of penalties but not that system of penalties itself; not whether that
crime — as retaliation. To:be sure, in preceding ‘discussions we hay system should at the bottom start with jail and flogging and at the top
recognized commutative justice, justice between co-equals, as end with cruelly aggravated death penalties or whether it should start at
justice of private law. In fact, subjecting punishment to the standard the bottom with fines and. end at the top with life imprisonment. The
commutative justice takes us back to a time when penal law was. stil " answer to these questions, which the theory of justice leaves unanswered,
private law, when the state inflicted punishment in lieu of the venge _ can be derived only from the second element of the idea of law, that is,
withheld from the injured, chiefly in order to give satisfaction to: _ expediency. In thus reaching back to purpose and expediency, however,
injured. But even after penal law is reorganized as public law adr punishment at the same time steps out of the framework of the specific
istered by the state in its own interest, it has not become nonsensical dea of law, justice, in order to become subservient to the purposes of
measure punishment by commutative justice. For it is of the essenceo he state and society.
a government of laws that the superior state'in many relations s
Penal Law and Expediency: Theory of General Prevention. 2. Once
betake itself to the level of co-equality: with its citizens: in civil suits
which the treasury is a party,in criminal procedure, or before an ad gain, in this connection, we meet a liberal, government-of-laws view
istrative tribunal. So the doctrine of retaliation could be interpreted of punishment, which, however, is related this time to the idea of ex-
jediency and the state, unlike the theory of retaliation which is related
a liberal, a government-of-laws view* of the penal law.? However,
separably mixed with this view was an authoritarian-transindividua the idea of justice and the law. This is the deterrent theory, in the
— quite in accordance with the “national liberal” conception m cast by Feuerbach. Indeed, in Feuerbach’s thought on penal law,
view
in that of the period of Enlightenment, the deterrent theory paradoxi-
the Bismarck Empire; witness Binding’s theory of penal law, whic
ly serves to bind penal law to the terms of the statute and its state of
oriented entirely toward the conception of authority.
ts, and to safeguard the proportionality between crime and punish-
The theory of justice of the penal law contrasts with the theories
its ends. But they too lay claim to justice — though to distrib t. In this respect it is close to the theories of retaliation.? By the
ne token, both the deterrent and the retaliatory theories separate the
rather than to commutative justice. According to them, just punis
ed from its perpetrator and the perpetrator from the human being.
is not the punishment corresponding to the crime, but one crimin
€ concept of the perpetrator, on which penal law is thus based, cor-
punishment proportioned to another’s in the proportion of their resp
ponds to the concept of the person in private law. Just as in tradi-
* [Le., “liberal” in the sense of the nineteenth-century Jaisses-faire concepti private law, say, the laborer is the possessor of his ability to
the state. See infra, §26, and n.a.] : '
21 am abandoning my former one-sided transindividualistic interpretatio:
‘k, is the seller of the “commodity
of labor,” without any individuality
the retaliatory end of punishment, presented in my article in (1908-09) 5 ASCE ls own, so in a deterrent and retaliatory: penal law the lawbreaker is
FENBURGS MonatsscHRiet 1 ef seg., due to the convincing arguments of R perpetrator of his deed, with no individuality of his own. The rela-
Scout, Diz STRAFRECHTSREFORM IN IHRER STAATSRECHTLICHEN, UND POLITISC!
(1912) 189 ef seg. Cf. also Dannensenc, LiseratisMus UND St The deterrent and retaliatory theories are closely related also in that both may
Beprvrune
(1925). : i ven a transindividualistic turn. Cf. infra, p. 188. ’
RECHT IM 19. JAHRHUNDERT
 RADBRUCH LEGAL PHILOSOPHY 189
188 GUSTAV
hip, — the new Italian Penal Code of 1930 quite explicitly starts from the
tionship created by penal law is thus turned into a partial relations
but only by the perpetra to Fascist view of the state as an organism. ‘‘The state represents no longer
entered into not by the whole human being
Just as in the individua listic view of the employm ent rela: the arithmetic sum of its component individuals but the product, syn-
of this deed.
thesis, and concentration of its constituent individuals, groups, and
' tionship one sells as a commodity his ability to work, so in the corre- interests,
” classes, with its own life, its own purposes, its own needs and
sponding view of penal law one expiates his ‘crime.* In the merely
law the liberal character of © which reach and Jast beyond the lives of the individuals, groups, and
partial nature of the relationship of penal
and deterrent theories is especiall y clearly expressed . For classes and extend over all past, present, and future generations.” The
the retaliatory penal law of that state is characterized not as the defense of society
liberalism everywhere loosened the personal legal ties of man to his
— (difesa sociale, in the sense of Ferri) but as the defense of the state
fellow men in their totality and replaced them with clear-cut partial
— sin the relationship of penal law no less than in that of _ itself (difesa propria dello Stato); it finds the means of such defense in
relationship
ij _ the deterrence and incapacitation of criminals, which results from ex-
employment. _ tremely numerous threats of capital punishment. “This state, which
Expediency: Theory of Special Prevention. The liberal, governm _ presupposes the superman as leader, assumes that men are not weak,
of-laws theories of retaliation and deterrence contrast with the doctrine helpless, needful of support, but that they are strong. The criminal is
of custody and correction, which is the theory of social penal law. For, therefore basically dealt with as the rebellious enemy of the régime of
as.shown above, it is peculiar to social as opposed to individualistic la _ the state, against whom the most important function of the penal power
that it is cut out not for the. abstract and isolated. individual, thi q of the state is to deter him and render him harmless.” 5
person, the perpetrator, but for the concrete individual within societ
Just as in labor law it has been recognized that the ability to work is ni _ Expediency: Soviet Penal Law. Another regeneration of terroristic. °
something separable. from.the human being but is the whole hu " penal law is to be found in Soviet penal law. The Soviet Penal Code’ of
being as seen from a particular point of view, so it is recognized in a _ 1926 is the penal law of a state in transition, an odd mixture of author-
penal law that the crime is not separable from the human being but _ itarian penal law, which corresponds to the dictatorship of the prole-
again the whole human being from a particular viewpoint. The ne tariat, and of social penal law which foreshadows and anticipates the
penal law has been summed up in the slogan: ‘‘Notthe deed, but tl Classless society of the future. Corresponding to the social view of penal
perpetrator”; one should rather say: not the perpetrator, but the ‘law, the Soviet law expressly declares that its “task is not to retaliate
It is the concrete human. being with his psychological and sociologic: ‘and to punish.” But corresponding to the authoritarian view, it main-
peculiarities that enters the ken of the law. From the viewpoint of t tains that to deter, especially from political crimes, is no less an end of
custodial and corrective theory, the concept of the perpetrator resol punishment than to keep in custody and to correct; and this end is
pe into manifold characterological and sociological types: the habitu bodied especially in the “supreme measure of social protection,” the
and the occasional, the corrigible and incorrigible, the adult and th penalty, which is‘ copiously employed. .
juvenile, the fully and partly responsible criminals. So the new, scl Even more characteristic than the admixture of authoritarian elements
of penal law may rightly call itself the “sociological school’; for i Penal law is the complete renunciation of government-of-laws guar-
put within the judicial ken facts that hitherto belonged only to-socio ees in the Soviet Penal Code. Acts for which the statute threatens
nishment are not crimes if in the individual case they lack the char-
Expediency: Fascist Penal Law, However, the deterrent theory | of a danger to the common good; acts for which no punishment is
fol
experienced a rebirth, not indeed in its liberal, government-of-laws eatened are crimes if they turn out to be dangerous to the common
which has just been described, but in a transindividualistic transfo tthe clause Nullum Crimen sine lege» does not apply in Soviet
tion: in the terroristic penal law of Fascism, The memorial attached s ia. Even the principle Cogitationis poenam nemo patitur© is im-
(1929) 149 e&
“EB. PascHuxKants, Aticemermve RECHTSLEBRE UND MARXISMUS i EBERHARD SCHMIDT, STRAFRECHTSREFORM UND KULTURKRISE (STAAT UND
of
seq., interprets the parallel relation as a sheer causal relation: The thought CHT, No. 79, 1931) 18.
is s
taliation is determined by: the “basic form to which modern society No crime without a (previously enacted) law.]
66 f
namely, the form of equivalent exchange.” Contra: Kelsenin (1931) _ * [Nobody suffers punishment for his thoughts.]
FUR SOZIALWISSENSCHAFT UND SOZIALPOLITIK 483 et seq.
 190 “GUSTAV RADBRUCH LEGAL PHILOSOPHY I9I

paired not only by penalizing preparatory acts. generally but by

subjecting to the measures of social protection persons who “represent SECTION 23
danger by their connection with the environment of criminals or”
their previous activities.” Tur DEATH PENALTY

Penal Law and Legal Certainty. 3. If consistently carried through, Who gave you this power over me, hangman? — [Goethe, Faust:] Gretchen in jail
custodial and corrective theory would, indeed, lead to those conclusio:
were they not precluded by the thought that forms the third part of Only a transindividualistic view of the law is able to justify the death
idea of law, namely, the conception of legal certainty. Undeniably, | _ penalty; it alone can attribute to the state any right at all over life and
theory of special prevention is complicated by the fact that it cannot - death,
itself determine the shape of penal law, which is derived rather fr
the interplay of the special preventive purpose with the ideas of jus _ Transindividualistic Justification. Says Bismarck, in his speech of
and legal certainty. That interplay, moreover, is largely counteracti "March 1, 1870: “A human force which feels within itself no justification
The tension within the idea of law is represented quite clearly within 1 “from above is not strong enough to wield the executioner’s sword.” That
i ji ;
The idea of legal certainty saves “the turn away from an individualistic view of the state provides the
particular problem of penal law.from its extreme conclusion, from background for the re-introduction of the death penalty was expressed
doctrine of special prevention
tending punishment even to preparatory acts, attitudes, and though especially in the memorial on the new, Fascist, Italian Penal Code, in
Again, the conception of justice, which requires even unequal pers erms which celebrate the renewed death penalty as an outright triumph
* . and circumstances to be treated to some extent equally, opposes f this view of the state: “Such a reform represents another happy sign
carrying of individualization to that ultimate extreme which would the changed spirit of the Italian nation, of the regained virility and
from the conception of special preventive purpose. As against this ergy of our people, of the total liberation of our juridical and political
nomic formation of a penal law founded upon corrective and cus suilture from the influence of foreign ideologies directly involving the
punishment, the doctrine of retaliation discloses greater method. olition of the death penalty.” Those ideologies are expressly stated to
efficacy: it serves both to justify punishment and to determine “the individualistic ideas which triumphed beyond the Alps,” “the
purpose, it fulfills within itself both the conception of justice and t ‘or of Kant’s affirmation that the individual, as an end unto himself,
of legal certainty. : t y not be abaséd to the level of a means.” “It is, om the contrary, true
Finally, the legal institution molded upon the idea of retaliat t society, regarded as an organism comprehending innumerable
doubtless represents “punishment,” whereas a penal law consister of generations, and the state which: is its juristic organization,
molded according to the theory of correction and custody ultimat ve ends of their own and live for their sake, while the individual is
ceases to be “penal.” Indeed, Ferri’s draftof a code, and again the Pena hothing but an infinitely small-and transitory element of the social
Code of the Soviet Union, consistently with the doctrine of spe anism to the ends of which he must subordinate his acts and his very
prevention, have replaced the name of “‘punishment” with other 1 " i mpi . i
sten ice,”

“sanction,” “measure of social protection.” However, it need hardly

stressed that the concept of punishment is not a norm and limit det ath Penalty and Contract Theory: Beccaria, Rousseau, Kant. On
minative of the future shape of what used to be called “penal” law, asis of the individualistic ideas condemned by Fascist Italy, the
more than the methodical convenience of the doctrineof retaliat h penalty was opposed for the first time by an Italian, hitherto con-
which renders possible a single solution of all problems of penal a glory of Italy: Cesare Beccaria (On Crimes and Punishments?
theory, is a criterion of truth. Indeed, on the contrary, the developm (6). He proved the incompatibility of the death penalty with an in-
of penal Jaw may well turn out one day to step beyond penal law, 7 listic view of the state, as embodied in the doctrine of the social
the reform of penal’ law opening not into an improved penal law, fact. He argued that the death penalty contradicted the social
jnto a corrective and custodial law that would be better than penal
both more intelligent and more humane than penal law. © (Det perrrri £ Dette pene.)
 194 GUSTAV. RADBRUCH LEGAL PHILOSOPHY 195
may be his own neighbor” [i.e., may still think of his own interest established by it are not at the moment accessible. Therefore, the state
closest to him].? of nature, including the right of self-defense, is restored as of right, yet
But does not the contract theory prove too much? Does not its ar; within the framework of the state of law and with the recognition of
ment deny the’state any right to ask its members to stake their li the legal order. Thus the right of self-defense is an original right of
say, in a war? By no means! Staking, that is, endangering, one’s _ man that is left to the person attacked, while the right to the death
life may still be shown to be within the interest of the one who, thou; " penalty is only conceivable as a right created on the basis of the social _
endangered, may well survive. But sacrificing one’s life, certain deat contract,-or rather is inconceivable as such upon individualistic grounds.
even in wartime is commonly not required by the state as a matter ' But above all, there is stil] another point to be made against the argu-
principle: volunteers are called for in such cases. For the volun _ ment for the death penalty as a right of self-defense: That the right of
sacrifice of one’s life for an idea is not contradictory even to individ - self-defense is directed toward repelling the attack, or toward destroying
ism; it means to realize life’s full value in surrendering one’s life. § _ the ability to attack, as the case may be, and though it may in fact bring
fulfillment of life by the surrender of life may, indeed, occur also ur about the attacker’s death, it is not specifically directed toward that
the death penalty, namely, in a case where the culprit by his own killing; not toward destroying
so even this right is directed but only
has accepted the penalty as atonement. Even in that case, hov - toward endangering life. On the part of those killed in self-defense or
there remains the conceptual distinction between the death pe _ by the death penalty, this conceptual difference is expressed in the very
which is imposed and the atogement which is voluntarily accepted.* | real mental fact that the former believed in the possibility of escape till
the last moment while the latter had to suffer the terrible feeling of the
_ Death Penalty as Self-Defense. Of greater weight is another objectii _ inescapability of a death precisely fixed in time.
to the individualistic argument against the death penalty, an obje These discussions have been devoted less to the question of the death
that was also raised in that speech of Bismarck’s: the admissibility penalty itself than to the task of showing the difficulty as well as the
killing in self-defense. The authorities as well as individuals are und _ fruitfulness of the conceptual form of the social contract in an individual-
some circumstances entitled for preventive purposes to kill an attacke istic doctrine of law. The decisive arguments against the death penalty
who need not even be a murderous — then why
one should they _are to be sought on levels both higher and lower than legal philosophy:
prohibited from killing the convicted murderer for repressive purpo: on the one hand, in ethical and religious arguments against its admis-
Indeed, Beccaria has considered this objection.> He acknowledges sibility, and on the other hand, in statistical psychological proofs of
admissibility of the killing of others if it “should really be the experiencé against its necessity.
means of restraining the others from committing crimes”; and in
connection he thinks of “the case of open tumult and uproar wi
could be quelled instantaneously by killing the rioters who resist.”
in such killings he sees “the consequence of a real declaration of SECTION 24
which could not be founded upon the law and the social contract 5
only upon power, though upon just and necessary power. Let us q : Mercy
his reasoning through in terms of the contract theory! In the emerge a
of self-defense, the social contract is inadequate to protect ‘the 1 ‘The quality of mercy is not strained . . .— Shakespeare
goods for the protection of which it was entered into, because the org J Dengerrb ;
; _ The legal institution of mercy implies a: frank recognition of how
same argument as here is used by Mess, NrerzscHe ars GESETZG
‘questionable all law is, with its relations of tension within the idea of
*The
(1930) 7o-71. - and its possibilities of conflict between the idea of law and other
«That the inescapability of the death penalty renders it distinctive in kind’fi feas such as the ethical and the religious. For this very reason, during
voluntarily staking one’s life in any way, no matter how hopeless, is shown i eriods of unquestioning confidence in the complete and sole rule of
statement by Dostoevski, quoted by Sarpm, Dosroyewsxy unp' TorsTor 11.
€ason, as in the age of natural law and the enlightenment, the power
® Beccarta, User VERERECHEN UND SrraFen’ ([German] ed. by Esselborn, 1
108, N. I, 192. ‘ f pardon was opposed: first by Beccaria (of. cif., sec. 20) and, follow-