DECONSTRUCTION OF GUSTAV RADBRUCH'S BASIC LEGAL IDEA OF ZWECKMÄßIGKEIT

Abstract

This study seeks to clarify a misunderstanding in the interpretation of one of Gustav Radbruch’s fundamental legal ideas, namely zweckmäßigkeit, which is often construed as utility in a utilitarian sense. This study employs a socio-legal research method to examine the literature on Radbruch and arrive at two key findings. First, Radbruch’s thought was shaped by the socio-political context of the Nazi regime, in which law was instrumentalized to legitimize injustice. His conception of justice was also influenced by several philosophers: (1) from Kant, Radbruch adopted the distinction between sein (being) and sollen (ought); (2) from Hegel, the idea of the moral rationality of society; and (3) from Stammler, an orientation toward substantive justice. The synthesis of these ideas culminated in the Radbruch Formula, which asserts that positive law must be consistent with the principles of justice. Second, zweckmäßigkeit is more appropriately understood as purposiveness, as supported by historical, linguistic, and philosophical approaches. This notion emphasizes the alignment of law with specific purposes and is distinct from Bentham’s utilitarianism. Within this concept of purposiveness, three core values emerge—individual, collective, and creative—which reflect individualism, collectivism, and transpersonalism.