Abstract:
The subject of this work is the so called 'Radbruchsche Formel', its influence on the criminal assessment of the fatal shots at the former internal German border and the discussion about the rulings of the supreme courts in regard to the 'Radbruchsche Formel'.
For the second time in the 20th century, the german criminal law courts had to deal with the heritage of a non-legal system. In this exceptional situation, the tension between law and moral, which is normally hidden under the surface of the legal system, came now into the centre of the attention. This tension with its central question of the normative relationship between positive law and material justice or, – in other words – the question of the validity of positive law being in contrast to the idea of justice, was now in centre of the debate.
The 'Radbruchsche Formel' represents the philosophical core on which the supreme courts passed their sentences of the markmen on the Berlin wall.