Meta-Ethics and Legal Theory The Case of Gustav Radbruch

The received view among legal theorists has been that Gustav Radbruch’s post-war standpoint was that law and morality are conceptually connected, and that therefore laws that are intolerably unjust are flawed law and must yield to justice; whereas Radbruch’s pre-war stance had been that of a legal positivist and a moral relativist. But recently Stanley Paulson has challenged the received view, arguing that Radbruch really wasn’t a legal positivist before the war, and that Radbruch’s pre-war analysis is actually compatible, indeed continuous, with the post-war analysis.In this article, I argue that Radbruch’s pre- and post-war analyses are indeed incompatible, because they involve incompatible claims about the existence of a conceptual connection between law and morality. I also argue that the pre-war analysis is to be preferred to the post-war analysis. For whereas the pre-war analysis presupposes meta-ethical relativism, the post-war analysis presupposes moral objectivism, and meta-ethical relativism, but not moral objectivism, is a defensible meta-ethical theory.