Vogenauer Empire of Light2

to make a clean sweep of the entire past and to eradicate the existing doctrinal structure of the law: ‘doctrine’, they write, ‘is like an ant-hill where ... each of the authors ... only carries out quite modest work. From time to time the legislator kicks over the ant hill, but it is then built up once more. He never completely destroys it, as the existing doctrine is imposed on him to a certain extent’.26

3.Legal Luminaries II: Learning and Judicial Decision-making

A.Controlling Influence

The impact of legal scholarship on judicial decision-making can also be controlling, direct or indirect. Controlling influence is exerted if legal scholars themselves assume an adjudicating function. There is no sending of cases to professorial benches at the nearest law faculties anymore, the practice of the ius commune27 having been finally abolished in 1879. However, the German Statute Concerning the Judiciary and the Federal Regulation of Civil Servants’ Salaries explicitly provide for the possibility of academics serving as fullor part-time judges. A number of law professors thus hold a part-time post in a senate of one of the regional Oberlandesgerichte or Oberverwaltungsgerichte, the courts just below the Federal Supreme Court and the Federal Administrative Court. Even more importantly, the Federal Constitutional Court is dominated by academics who are on leave from their faculties in order to take up a 12 year full-time position at the Court. Currently eight out of the 16 Federal Constitutional Judges previously held a chair in law. Of course a professor who is appointed as a judge does not necessarily copy statements from his textbooks into his judgments. But his whole outlook and attitude have been shaped for a considerable period in academia, and he will not be able to deny this completely. Sometimes even specific legal solutions are transferred from scholarship to case law via such professorjudges. How controlling influence can work in practice can be shown by the careers of two 20th century lawyers: Hans Carl Nipperdey and Paul Kirchhof.

(i) Hans Carl Nipperdey

Nipperdey was born in 1895.28 He studied with two of the leading private lawyers of his time, Justus Wilhelm Hedemann and Heinrich Lehmann. His second thesis, the Habilitationsschrift, dealt with a major legal issue of the post-World War I era,

26Jestaz and Jamin, ‘Entity’, above n 16 at 426; cf. Philippe Jestaz, Les sources du droit (2005) at 119, 138.

27cf. Vogenauer, above n 3 at 486, 491–2, 493–4.

28The biographical data are collected from Theo Mayer-Maly, Gedenkrede auf Hans Carl Nipperdey (1970); Hermann Stumpf, ‘Hans Carl Nipperdey’ in Juristen im Portrait: Festschrift zum 225jährigen Jubiläum des Verlages C.H. Beck (1988) at 608–16; Klaus Adomeit, ‘Nipperdey, Hans Carl’ in W. Killy and R. Vierhaus (eds), Deutsche Biographische Enzyklopädie, vol. 7 (1998) at 421–2; Joachim Rückert, ‘Nipperdey, Hans Carl’ in Historische Kommission bei der Bayerischen Akademie der Wissenschaften (ed.), Neue Deutsche Biographie, vol. 19 (1999) at 280–2. A more detailed discussion of Nipperdey’s work can be found in Thorsten Hollstein, Die Verfassung als “Allgemeiner Teil”: Privatrechtsmethode und Privatrechtskonzeption bei Hans Carl Nipperdey (2005) and Klaus Adomeit, ‘Hans Carl Nipperdey als Anreger für eine Neubegründung des juristischen Denkens’ (2006) 61 Juristenzeitung 745.

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the obligation to contract with public service providers. It became a classic of 20th century legal doctrine. Elevated to a chair at the—even then—astonishing age of 30 years Nipperdey quickly established himself as the leading figure in the relatively new discipline of labour law. His contributions to the law of collective bargaining and collective agreements heavily influenced the social policy of the Weimar Republic. In 1928 he co-authored the leading textbook on labour law. Three years later he took over the authorship of the standard treatise on the General Part of the Civil Code. This monumental two-volume oeuvre of more than 1700 pages aimed at a complete and definite treatment of the subjectmatter. It was nevertheless widely read by students as a sort of general introduction to law. Nipperdey also worked on constitutional law, business law and intellectual property. Although his reputation was somewhat tainted by his participation in the most important national socialist commission for law reform, his career continued unblemished after 1945. Nipperdey was one of the scholars who helped to shape the doctrine of horizontal effect of fundamental rights provisions in private law.29 He founded the German Association of Labour courts, took over its presidency and became the editor of its influential law review.

All in all, Nipperdey’s list of publications adds up to more than 400 titles, not counting the roughly 800 case notes. His academic success was manifested by two Festschriften and various honorary doctorates and by the career of his disciples who continue to shape German labour law up to this day. But there was another dimension to Nipperdey’s personality. In 1954 he became President of the new Federal Labour Court. In this capacity he strongly influenced the Court’s 1955 landmark decision on industrial disputes or, more specifically, on the legitimacy of strikes and lockouts. Up to this day, the whole German law of industrial disputes, which has remained completely uncodified and is thus pure case law, rests on the foundations of this decision. Many other important doctrines of labour law were shaped in the first decade of the Court’s existence during which Nipperdey held office. That he regarded this post to be a most important part of his professional life became clear after his death in 1968 when, at his request, he was buried in his judicial robe.

(ii) Paul Kirchhof

The most recent biography which illustrates how legal scholars can exert controlling influence on judicial decision-making is that of Kirchhof, born in 1943, a staunchly conservative public lawyer from the University of Heidelberg specializing in constitutional law and tax law who served as a judge at the Constitutional Court from 1987 to 1999. In that capacity he drafted the court’s highly contentious Maastricht I judgment on the constitutionality of Germany’s ratification of the Treaty on European Union30 which has been described as ‘powerful’, ‘fascinating

29See text to n 41, below.

30BVerfGE (2 BvR 2134/92 of 12 October 1993) 89, 155, translated under the name of Brunner v The European Union Treaty [1994] 1 CMLR 57.

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and highly political’. It has been said that it marked the ‘perhaps most dramatic stage in the story’ of the Member States’ resistance to the doctrine of supremacy of Community law imposed upon them by the European Court of Justice.31 The decision was remarkable in that it did not only rule on Germany’s competence to ratify the Treaty at the time of the decision. It also issued a strong warning to the ECJ to remain within the limits of its powers by declaring what the Constitutional Court’s future position would be if the ECJ accepted attempts by the Community institutions to exercise powers which had not expressly been conferred upon it in the various Treaties by the Member States. This echoed widespread conservative fears of a loss of national sovereignty which had not gained the upper hand in the political decision-making process. Kirchhof was also responsible for a number of judgments on the constitutionality of tax legislation. By means of a daring interpretation of the Basic Law’s provision on the fundamental right to property he formulated the principle that capital income tax may not exceed roughly half of the capital income. Other decisions not only struck down taxing statutes as unconstitutional, but strongly predetermined future legislative measures for the taxation of families. This earned him widespread applause and an appointment to the Papal Academy of Social Sciences by John Paul II. But even observers who agreed with the political implications of these judgments criticized them for judicial usurpation of legislative powers.

Kirchhof could almost have gained controlling influence on the legislative process, too. Immediately after returning to his chair at Heidelberg he embarked on a joint project by tax academics and practitioners that aimed to solve one of Germany’s most pressing political problems: the incredible complexity and complete incomprehensibility of tax legislation. He elaborated a legislative proposal that would have radically simplified the legislation on income tax, compressing it to 23 short and comprehensible sections.32 It became the object of national debate when Angela Merkel, during the campaign leading up to the 2005 Federal elections, suggested that she would nominate Kirchhof as Minister of Finance in a future Christian Democrat cabinet. It is questionable whether this proposal would have survived the political decision-making process. In the end Kirchhof never took office because the Christian Democrats were not able to form a government without the Social Democrats. Ironically, it is generally assumed that Kirchhof’s nomination cost Merkel an election she would otherwise have gained safely because it enabled the Social Democrats to attack her for nominating an allegedly unworldly and ‘eccentric Professor’.33

31Paul Craig and Gráinne de Búrca, EU Law: Text, Cases, and Materials (3rd edn, 2003) at 292–4.

32Paul Kirchhof (ed.), Einkommensteuergesetzbuch: Ein Vorschlag zur Reform der Einkommenund Körperschaftssteuer

(2003).

33Justin Sparks, ‘Schröder will play US card in TV duel’, The Times, 4 September 2005.

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B. Direct Influence

Admittedly, cases like those of Nipperdey and Kirchhof are exceptional. The direct influence of scholarly activity on judicial decision-making is of much greater relevance. This is exercised in three different ways. First, law professors are allowed to practice and thus to act as counsel in court for one of the parties to litigation. This does not happen very often, but there are some high profile examples from criminal law, such as the proceedings against the former Federal Chancellor Helmut Kohl for accepting illegal party funding, against the former managers of the Mannesmann Corporation for breach of trust in the take-over battle with Vodafone plc, or against former tennis star Boris Becker for tax fraud. In the Federal Constitutional Court law professors also sometimes act as counsel, as was the case in the highly contested litigation on the constitutionality of the Immigration Act where, a couple of years ago, professors Josef Isensee of Bonn and Christian Starck of Göttingen, two of Germany’s leading constitutional lawyers, represented the governments of those Länder which challenged the constitutionality of the Act.34

Second, scholars frequently prepare legal opinions or empirical studies on issues being contested in a particular court proceeding. Empirical studies with the character of an American Brandeis brief by, say, a criminologist, a comparatist or a professor of legal sociology might make the difference to the outcome of an important constitutional or labour law case.35 Here, the academics usually act as neutral expert witnesses appointed by the court. As opposed to this, legal opinions are not commissioned by the court since, according to the old civilian maxim iura novit curia, German courts are supposed to know the law themselves. Professorial opinions are therefore ordered by counsel for one of the parties to litigation who then introduces them into the proceedings. This is done in every area of the law, particularly if there are high values at stake, as in banking law, corporate law or insurance law. In addition, professorial opinions are a regular feature in cases before the Federal Constitutional Court, such as the one just mentioned, where the Länder favouring the constitutionality of the Immigration Act mustered a number of opinions in support of their view as well. Only in exceptional cases are such documents mentioned in the written judgment of the courts, for instance, in a 1966 competition law case where the Federal Supreme Court repeatedly referred to ‘the opinion of Professor Dr F’.36 Thus it is usually very difficult to estimate the impact of such contributions on the process of judicial decision-making. On the one hand, they are intended to buttress counsel’s argument on a specific point of law and therefore lack impartiality and are only

34BVerfGE (2 BvF 1/02 of 18 December 2002) 106, 310.

35BVerfGE (1 BvR 550/52 of 10 May 1957) 6, 389, 398–413 (effects of homosexuality); BVerfGE (1 BvR 2378/ 98 of 3 March 2004) 109, 279, 337–8, 339 (effectiveness of telephone tapping in combat against organized crime).

36BGH (KZR 5/65 of 30 June 1966) (1967) 30 Neue Juristische Wochenschrift 343. The opinion was later published by Wolfgang Fikentscher and Georg Sandberger, Die Schallplatte als Verlagserzeugnis: Ein Rechtsgutachten

(1966).

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of limited value to judges. On the other hand, an opinion of a prestigious law teacher carries great authority and will not be easily dismissed.

Third, direct influence on judicial decision-making is exercised by the publications of legal scholars. Although, as it has been seen, this is far from being the only form of impact, it is the one most authors instinctively focus upon when they examine the relationship between learning and lawmaking. Legal literature can influence the courts in various ways. It can make suggestions as to the treatment of very specific legal problems and provide an exact solution for a case or a group of cases that have already arisen or might arise in the future. Such writing might be spurred by technological change, as recently has been the case with respect to the question of the formation of contracts via the internet. It might also be occasioned by legal developments, as currently is the case with respect to the aforementioned reform of the law of obligations which has led to a multitude of questions as to whether a particular fact pattern is or is not covered by one of the new provisions of the Civil Code. In addition, legal literature can deal with very general and sometimes even rather philosophical questions, the treatment of which nevertheless determines the outcome of particular cases. The great anti-formalist movement of the late 19th and early 20th century, for instance, which advocated a decidedly purposive approach to legal method, has long been integrated into the mainstream of legal scholarship, and it continues to shape the courts’ practice of dealing with statutes and precedents up to this day.

Direct influence through publications is highly visible because of the frequent citation of academic writings in judicial opinions. Comparatists have regularly pointed out that, in terms of the number of references per case, the German higher courts leave the judiciaries of other countries far behind. In 1985, cases reported in the official collection of the Federal Supreme Court contained an average of 13 citations to scholarly writings, as compared to an average of 0.77 in the decisions published in the All England Law Reports.37 Of course citation frequency cannot straightforwardly be equated with intellectual influence. Noncitation does not necessarily indicate an absence of influence, and different citations can embody strongly different degrees of influence.38 Thus, on the one hand, the impact of learning on judicial decision-making in France or Italy cannot be gathered from citation frequency, the terse style of judicial opinionwriting in these countries not allowing for any specific references at all,39 whereas the discursive style of German judgments leaves ample room for such citation. On the other hand, many quotations by German courts are not supposed to give additional persuasive effect to a certain, maybe controversial, legal

37Hein Kötz, ‘Scholarship and the Courts: A Comparative Survey’ in D.S. Clark (ed.), Comparative and Private International Law: Essays in Honour of John Henry Merryman on His Seventieth Birthday (1990) 183 at 188, 193. For earlier comparisons, see Folke Schmidt, The Ratio Decidendi: A Comparative Study of a French, a German and an American Supreme Court Decision (1965) at 13–14; Dawson, above n 11 at 494.

38Kötz, above n 37 at 185, 193–4.

39As to Italy and its specific legislative provision to this effect, see Braun, above n 10 at 670–5.

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proposition. Their function is simply to assert an undisputed and fairly evident proposition. Others merely indicate where the reader can find a brief survey of the relevant case law. Others, again, even refer to opinions that are explicitly rejected by the court. Still, the high number of citations at least bears witness to the willingness to take into account and engage in discussion with the academics’ views. And there is indeed a substantial number of cases where the courts simply adopt solutions proposed in legal literature. Three instances of this shall be given in the remainder of this section, each drawn from one of the three major areas of law: the constitutional law doctrine of indirect horizontal effect of fundamental rights, the private law theory of the principle of reliance as a source of obligations, and the so-called ‘Radbruch formula’ as to the retroactive invalidation of criminal law statutes.

(i) Indirect horizontal effect of fundamental rights

The doctrine of the indirect horizontal effect of the Constitution’s fundamental rights provisions is one of the cornerstones of modern German constitutional law.40 After the coming into force of the Constitution in 1949 one of the main issues was the question, which will sound all too familiar to the post-Human Rights Act United Kingdom lawyer, whether individuals could invoke at least some of these provisions not only ‘vertically’ against the government and public authorities, but also ‘horizontally’ against private parties and, if so, what effect fundamental rights should have on private law arrangements. The Constitution itself did not provide an explicit answer to these questions, but Nipperdey whose towering influence has already been mentioned put forward a solution in a 1950 law review article. He argued that at least some fundamental rights provisions should have effect as between individuals, and that this effect should be ‘direct’.41 As a consequence, a contract term in violation of a fundamental right would be invalid. Human conduct in breach of such rights would give a cause of action. Only a couple of years later, the Federal Labour Court in one of its first decisions (Nipperdey presiding) held that, in principle, an employee could claim unfair dismissal if the employer had in effect used the dismissal to curtail the employee’s right to free speech.42

At this stage the question had already been discussed by legal writers. Particular attention was paid to the contributions of Günter Dürig, because this Tübingen constitutional lawyer had already entered into what has been described as an

40For a useful summary of the debate in English see Christian Starck, ‘Human Rights and Private Law in German Constitutional Development and in the Jurisdiction of the Federal Constitutional Court’ in D. Friedmann and D. Barak-Erez (eds), Human Rights in Private Law (2001) 97 at 97–9.

41Hans Carl Nipperdey, ‘Gleicher Lohn der Frau für gleiche Leistung: Ein Beitrag zur Auslegung der Grundrechte’ (1950) 3 Recht der Arbeit 121 at 124–6. See also Hans Carl Nipperdey, ‘Die Würde des Menschen’ in F.L. Neumann, H.C. Nipperdey and U. Scheuner (eds), Die Grundrechte: Handbuch der Theorie und Praxis der Grundrechte, vol II: Die Freiheitsrechte in Deutschland (1954) 1 at 18–21, 35–6. For the role of Nipperdey see text to n 28, above.

42BAGE (1 AZR 150/54 of 3 December 1954) 1, 185, 192–4.

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‘academic dialogue’ with the Court.43 He had submitted views on various contested issues, such as the specific content of the constitutional guarantees of human dignity, personal freedom and property or the question whether the new Federal Republic was, from the point of view of public international law, identical with the former German Empire. His proposals had usually been more or less adopted by the Court, the respective decisions being annotated approvingly by Dürig afterwards. A similar pattern emerged with respect to the question of the impact of fundamental rights in private law. In a 1956 Festschrift essay, Dürig argued against both an exclusively vertical and an unfettered horizontal application. Instead he favoured a mere ‘indirect’ effect by which the values embodied in the fundamental rights provisions would inform the entire area of private law by guiding the judicial interpretation of open-textured private law provisions. By this means, especially the so-called ‘general clauses’, extremely vague statutory provisions, which require the judge to make value-judgments, would become the ‘points of entry’ or ‘inroads’ for fundamental rights into private law.44

Only a couple of months later the Federal Constitutional Court for the first time had the opportunity to rule on the issue. In the famous Lüth case it explicitly referred to Dürig’s views and subscribed to the theory of indirect horizontal effect, repeating some of his phrases verbatim.45 These passages—holding that the Constitution’s section on fundamental rights establishes an objective order of values which informs the interpretation of private law norms, and referring to the general clauses as ‘inroads’ for those rights—have been frequently repeated in the Court’s case law ever since. Incidentally, academic commentary and further evaluations and suggestions as to the refinement of the Court’s holding in Lüth began with a favourable case note by Dürig which was published only a couple of weeks after judgment had been given.46

(ii) The principle of reliance as a source of obligations

A prominent example of judicial reliance on private law scholarship relates to the theory of the sources of obligations. Following the prevailing 19th century doctrine, the Civil Code presupposes that obligations arise out of either contract or statute, the latter category covering actions from delict, unjustified enrichment

43As to ‘Dürigs Zwiesprache’ with the Court see W. Schmidt, ‘Grundrechte—Theorie und Dogmatik seit 1946 in Westdeutschland’ in D. Simon (ed.), Rechtswissenschaft in der Bonner Republik: Studien zur Wissenschaftsgeschichte der Jurisprudenz (1994) 188 at 196, 199. For a short biography see Hans-Ulrich Büchting, ‘Günter Dürig’ in Juristen im Portrait, above n 28 at 280–8.

44Günter Dürig, ‘Grundrechte und Zivilrechtsprechung’ in T. Maunz (ed.), Vom Bonner Grundgesetz zur gesamtdeutschen Verfassung: Festschrift zum 75. Geburtstag von Hans Nawiasky (1956) 157 at 160 n 5, 171 n 28, 176–84. See already Günter Dürig, ‘Freizügigkeit’ in Neumann, Nipperdey and Scheuner, above n 41, 507 at 525.

45BVerfGE (1 BvR 400/51 of 15 January 1958) 7, 198, 204–6, translated in Raymond Youngs, Sourcebook on German Law (1994) 504 at 515–9 and, without printing the full references to Dürig, in Basil Markesinis and Hannes Unberath, The German Law of Torts (4th edn, 2002) at 394–5. For a detailed discussion of the historical background see the contributions in Thomas Henne and Arne Riedlinger (eds), Das Lüth-Urteil aus (rechts-)histo- rischer Sicht (2005).

46Günter Dürig, ‘Zum “Lüth-Urteil” des Bundesverfassungsgerichts vom 15.1.1958’ (1958) 11 Die öffentliche Verwaltung 194. Not surprisingly, Hans Carl Nipperdey, ‘Boykott und freie Meinungsäußerung’ (1958) 73 Deutsches Verwaltungsblatt 445 was less appreciative.

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and negotiorum gestio. This dichotomy has the advantage of being fairly simple and clear-cut, but it also has the disadvantage of not covering a number of situations which are widely perceived to be in need of a remedy. This is, for instance, frequently the case if the defendant has negligently caused damage to the plaintiff during pre-contractual negotiations. There is no contractual liability, since there is no contract, and often there is no delictual liability either, since the relevant provisions of the Civil Code do not catch the specific situation. A suggestion as to how a great number of these cases could be solved was put forward as early as 1861, in a law review article by Rudolph von Jhering, one of the leading private lawyers of his time. He proposed to award damages in cases ‘where contracts are void or did not reach the situation of perfection’ because of fault in the formation of contract, culpa in contrahendo.47 The draftsmen of the Civil Code declined to introduce a general rule to this effect and chose to enact only a number of special provisions instead, dealing with a handful of particular instances pinpointed in Jhering’s article. Still, after 1900, the Imperial Court, sometimes explicitly referring to Jhering, started to move slowly towards the recognition of a general liability for negligence in pre-contractual situations. The judiciary eventually developed a doctrine of culpa in contrahendo that was even broader than that originally proposed,48 thereby creating what today is usually called a ‘quasi-contractual relationship arising ex lege’ which opens up a ‘third track’ between contractual and delictual liability.

Jhering had developed his theory through a characteristic exercise of the pandectist method of conceptual ‘construction’ on the basis of the Roman sources.49 As opposed to this, the Imperial Court did not offer a convincing and systematic explanation as to how the doctrine could be justified under the new Civil Code. Several attempts at a theoretical foundation were made in the legal literature, but a breakthrough was only achieved some decades later when one writer singled out the disappointment of the plaintiff’s reliance as the key element underlying the various instances grouped together under the heading of culpa in contrahendo.50 This thread was taken up by Claus-Wilhelm Canaris, one of the ‘Beckenbauers’ of private law referred to above.51 He argued that the special relationship which arises out of the negotiations and imposes special duties of care on both parties cannot be confined to the pre-contractual stage. On the contrary, liability should also be imposed for negligence after the formation of a contract that later turns out to have been void ab initio. If a valid contract has been formed, the collateral duty of protection arising ex lege out of the special

47Rudolph von Jhering, ‘Culpa in contrahendo, oder Schadensersatz bei nichtigen oder nicht zur Perfektion gelangten Verträgen’ (1861) 4 Jahrbücher für die Dogmatik des heutigen römischen und deutschen Privatrechts 1–112.

48For an account of this development see Reinhard Zimmermann, Roman Law, Contemporary Law, European Law: The Civilian Tradition Today (2000) at 88–92. The doctrine of culpa in contrahendo was finally codified by inserting s 311(2) and (3) into the Civil Code in 2002.

49cf. Vogenauer, above n 3 at 499–500.

50Kurt Ballerstedt, ‘Zur Haftung für culpa in contrahendo bei Geschäftsabschluß durch Stellvertreter’ (1950/51)

151Archiv für die civilistische Praxis 501.

51See n 25 above.

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relationship exists side by side with the primary contractual obligation to perform. In certain circumstances this duty can outlast performance so that there is even a post-contractual liability. In effect there is a ‘uniform protective relationship ex lege’ (einheitliches gesetzliches Schutzverhältnis) extending from the first contact to the very last effects of the transaction. Its foundation is to be seen, as Canaris extensively argued in his Habilitationsschrift, in the principle of reliance which constitutes an aspect of the general principle of good faith established in s 242 of the Civil Code. He then went one step further and claimed that, in the absence of a contract, even specific performance can be claimed if the defendant could reasonably rely on the plaintiff’s representations or conduct inducing such reliance.52 Whereas the latter proposition has not as yet been explicitly endorsed by the judiciary, the Federal Supreme Court took over various important elements of the theory of reliance and, for instance, referred to Canaris when it introduced a ‘post-contractual liability based on reliance’.53 Three decades after the publication of his Habilitationsschrift, Canaris, for his part, extensively analyzed the Court’s case law in this area, showing where the principle of reliance was at least tacitly underlying its decisions and encouraging the judges to take heed of his theory in those cases in which they had not followed him so far.54

(iii) The ‘Radbruch formula’ as to the validity of unjust statutes

An example taken mainly from criminal law can show how even highly abstract jurisprudential theories can directly influence judicial decision-making. It concerns the debate between positivists and non-positivists on the relationship between law and morality and its central issue, the legal validity of unjust law. In Germany, this question gained crucial importance in the wake of the Nazi era. Only a couple of months after the end of World War II the problem was tackled by the leading legal philosopher Gustav Radbruch in a newspaper article and in a contribution to a law review.55 Radbruch took a decidedly non-positivist stand. His central thesis was that a certain rule of positive law ceases to be law if it is not only unjust, but reaches an intolerable degree of injustice; this being the case if the rule conflicts with the most fundamental principles of law as carved out through the work of centuries and embodied in the declarations of human and civil rights.56 This proposition soon became known as the ‘Radbruch formula’

52Claus-Wilhelm Canaris, ‘Ansprüche wegen “positiver Vertragsverletzung” und “Schutzwirkung für Dritte” bei nichtigen Verträgen’ (1965) 20 Juristenzeitung 475 at 476–9 and Claus-Wilhelm Canaris, Die Vertrauenshaftung im deutschen Privatrecht (1971).

53BGHZ (II ZR 164/76 of 19 December 1977) 70, 337, 344.

54Claus-Wilhelm Canaris, ‘Die Vertrauenshaftung im Lichte der Rechtsprechung des Bundesgerichtshofs’ in C.W. Canaris and A. Heldrich (eds), 50 Jahre Bundesgerichtshof: Festgabe aus der Wissenschaft, vol I: Bürgerliches Recht (2000) 129 at 154–70, 176–91.

55For Radbruch see text to n 20 above.

56Gustav Radbruch, ‘Fünf Minuten Rechtsphilosophie und Rechtsgeschichte’ in Rhein-Neckar-Zeitung (Heidelberg), 12 September 1945; Gustav Radbruch, ‘Gesetzliches Unrecht und übergesetzliches Recht’ (1946) 1 Süddeutsche Juristenzeitung 105–8. Both texts are reprinted in A. Kaufmann (ed.), Gustav Radbruch-Gesamtausgabe, vol III: Rechtsphilosophie (1990) 78–82 and 83–93 and have been translated by Bonnie Litschewski Paulson and Stanley L. Paulson in (2006) 26 OJLS 1–15.

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(Radbruch’sche Formel) and was controversial enough to generate fierce jurisprudential controversy around the globe, as can be seen by the famous ‘Hart-Fuller debate’ which was occasioned by Radbruch’s views.57

Furthermore, the formula was immediately relevant to the decision of a number of post-war cases which depended on the validity of Nazi enactments.58 In the field of private law the Federal Supreme Court referred to Radbruch as early as in 1951 when, in a delictual action, the judges had to consider the legal force of Hitler’s order to shoot every deserter on the spot. Even if this order could be qualified as a piece of legislation, they held, every ‘statute has its limits where ... the contradiction of the positive law to justice reaches so intolerable a degree that the statute, being “incorrect” law, has to yield to justice. If the principle of equality is renounced altogether in enacting positive law the statute lacks legal character and is no law at all’.59 Radbruch’s emphasis on the principle of equality was of special importance in cases where Nazi enactments had singled out Jews for unfair treatment. The Court thus held that the regulations permitting authorities to expropriate Jewish citizens and to liquidate their shops were invalid.60 The Federal Constitutional Court held that a regulation that had been relied upon to strip a Jewish lawyer of his citizenship was void ab initio because of the ‘intolerable degree of its contradiction to justice’. Thus it became possible to decide a matter concerning a deceased’s estate on the basis that the lawyer had never lost his nationality.61 Quoting the Radbruch formula verbatim, the Federal Constitutional Court even acknowledged the theoretical possibility that provisions of the 1949 Constitution could be invalid if they were extremely unjust.62

In spite of these decisions the formula’s main field of application was in the area of criminal law. Here, defendants could argue that statutory offences introduced or aggravated by the Nazi regime were invalid.63 The typical constellation, however, concerned conduct which constituted a crime under the provisions of the Criminal Code, the defendants nevertheless pleading not guilty because their conduct had been justified on the basis of particular ordinances and regulations of the Nazi government. Thus, in a 1952 case, a handful of police officers who had participated in the deportation of Jews had certainly fulfilled all the elements necessary for a conviction for deprivation of liberty under the Criminal Code, but relied on a Presidential Ordinance of 28 February 1933 which had explicitly

57See H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard LR 593 at 615–21; Lon L. Fuller, ‘Positivism and Fidelity to Law—a Reply to Professor Hart’ (1958) 71 Harvard LR 630 at 644–8, 655–7.

58See H.O. Pappe, ‘On the Validity of Judicial Decisions in the Nazi Era’ (1960) 23 MLR 260.

59BGHZ (III ZR 168/50 of 12 July 1951) 3, 94, 107.

60BGHZ (II ZR 51/52 of 11 February 1953) 9, 34, 44; BGHZ (IV ZR 30/53 of 8 October 1953) 10, 340, 342–3 with further references; BGHZ (GSZ 4/54 of 28 February 1955) 16, 350, 353–4—all without reference to Radbruch. See also BGHZ (VIII ZR 71/56 of 29 January 1957) 23, 175, 181 (obiter) with reference to Radbruch.

61BVerfGE (2 BvR 557/62 of 14 February 1968) 23, 98, 106–7, confirmed in BVerfGE (2 BvR 842/77 of 15 April 1980) 54, 53, 68–9, concerning a similar statute. The first case was discussed eight years later in Oppenheimer

vCattermole [1976] AC 249.

62BVerfGE (1 BvL 106/53 of 18 December 1953) 3, 225, 232–3.

63BVerfGE (1 BvR 550/52 of 10 May 1957) 6, 389, 414–9.

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