Oldal 86 [86]
even though that ís what made ít possibly to nullify the (social)
contract and formed the basis of the right of resistance. Even the
Marquis de Sade, for whom sadism is named, was disgusted by
those events.
There is a thinker who has been unfairly forced into the back¬
ground by the fame of Karl Schmidt. In 1932 Gustav Radbruch
defined law as the structure of the general arrangement of human
coexistence (Inbegriff der generellen Anord-nungen fiir das menschliche
Zusammenleben) (Radbruch 2003. p.38.) and gave the term “jus¬
tice” (Ibid p.34.) a prominent place. It is precisely these ideas that
underpin the notion of “legalized illegality.”
The term is, without exaggeration, ingenious: legalized ille¬
gality. It precisely suggests that legality is not simply compliance
with the rules of legislation, nor the totality of positive law and its
application and observance in accordance with official procedure.
Behind it there is the concept of justice. As we can see, it is a con¬
struction purely from natural law. A typical example of “legalized
illegality” is Nazi law, whose actions were in accordance with the
rules, if we look only at the structural elements. The state thus
created a law and it was observed—and enforced—by the judici¬
ary (judges, prosecutors). How can a law passed under the rule of
law be called illegal? This is an important question for lawyers as
well, because it is clear that racial laws, even if they are enacted
in full accordance with legislative practice, cannot be called just.
That is, compliance with the rule of law does not automatically
mean compliance with the principle of justice. A parliament in a
dictatorship usually makes decisions unanimously, but its actions
do not (necessarily) meet the criteria of justice. Legalized illegality
(injustice) means that the law is opposed to “the law above the law,”
which rests on the principle of justice and takes precedence over
statutory law. It is the law that exists naturally and does not depend
on a positive set of rules enacted by states. It does not depend on
legislative acts. On the contrary, legislative acts depend on it. The
Radbruch Formula, which formed the basis of the Nuremberg prin¬
ciples, among others, builds on natural law and appeals to common