General Antecedents of Philosophy by Gustav Radbruch

摘要

According to Radbruch, legal philosophy is a part of philosophy. He considers it essential to discuss general antecedents of philosophy. He points out that his views are based on the ideas of Windelband, Rickert and Lask. According to Radbruch, our life experience is formed by objective reality which represents a "raw material", and in which reality and value are chaotically intertwined with each other and have unregulated relationship. We apperceive the people and the objects by their values, whether they have or not. He believes that the initial task of mind is the necessity of separating our own "self" from reality, confronting ourselves to it and thus, separate value from reality. Mind learns to turn off its evaluative consciousness or use it purposefully on occasions. Thus, at the beginning we unconsciously create "realm of nature" from chaos, as nature is nothing else than objective reality— a datum at present which is free from evaluation. After the mind determines particular scale of values and their interconnection as a "realm of values" , it opposes the "realm of nature". Considering these general principles, Radbruch argues that justice should be understood within the framework of categories which belong to values. In his opinion, justice is the part of culture, same as the fact which is attributed to values. The notion of justice can be defined as a "datum at present" and its essence is the realization of the idea of justice. As far as the idea of justice belongs to the realm of values, its cognition and examination is feasible only with special evaluative reasoning method. This is the purpose of legal philosophy. As far as justice is concerned as a reality or the element of culture, it is to the subject of "legal theory" research. Radbruch defines legal philosophy as a science concerning legal values. As for the idea of justice, Radbruch perceives it in Kantian viewpoint that is the concept of perfection which we can approach to though cannot be fully attained. It can be the source of positive law making and the criteria of evaluating legal reality.