Seow Hon TAN

Publication Type

Journal Article

Version

publishedVersion

Publication Date

11-2024

Abstract

Suppose a 'law' required individuals to report neighbours of a certain race for extermination. If individuals complied with such a 'law' to avoid the penal sanction of a death sentence, should a tribunal involved in the process of transitional justice in a successor regime punish them? Radbruch suggests that intolerably unjust 'laws' are not legally valid. According to Radbruch's Formula, reporting the neighbour would not be justified by law. The logical implication of this Formula is that the act of reporting was, in substance, abetment to murder (or possibly, genocide). Yet, punishing individuals who complied with the purported 'law' in the predecessor regime seems unfair, particularly as some legal positivists would regard the law as valid. Individuals might have acted according to what they believed was law and under duress (out of fear of penal sanction for failure to comply) in the predecessor regime. I examine whether these are valid considerations in proceedings before a tribunal prosecuting individuals for acts done in compliance with intolerably unjust 'laws' in predecessor regimes. While the perceived unfairness might militate against acceptance of Radbruch's Formula, if the considerations are not valid, Radbruch's Formula is unobjectionable.

Keywords

criminal law, legal validity, Radbruch, transitional justice, unjust law

Discipline

Criminal Law

Publication

Israel Law Review

Volume

57

Issue

3

First Page

480

Last Page

506

ISSN

0021-2237

Identifier

10.1017/S002122372400013X

Publisher

Cambridge University Press

Copyright Owner and License

Authors CC-BY

Additional URL

https://doi.org/10.1017/S002122372400013X

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