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									Prof. dr Miodrag A. Jovanović,
Faculty of Law, University of Belgrade Human Dignity as the Ultimate Criterion of Law’s Positivity? On Relevancy of Radbruch’s Formula Miodrag A. Jovanović, This paper challenges the widely shared assumption of the contemporary Anglo-American legal theory that on the matter of defining the criterion of law’s positivity the hatchets has been buried between legal positivism and natural-law theory. While this might be indeed so when referring solely to the key proponents of both Anglo-American camps, like Hart and Finnis, the German legal theory is by and large still reluctant to announce that the truce was being made between the opposing schools of thought. In this paper, I subscribe to that tradition of the post-War German legal theory, which places the problem of legal validity within the extreme context of a totalitarian regime. In that repspect, I argue that it was exactly the totalitarian experience of countries like Germany or South Africa that pushed them in the posttotalitarian era towards stipulating human dignity as one of the fundamental values of their constitutional orders. This paper offers a brief overview of the developments of Gustav Radbruch’s legal philosophy and it makes a case for his well-known formula, according to which the ‘unbearably unjust’ laws shall cease to be treated as valid (positive) law. In arguing so, this paper dismisses Hart’s criticism of Radbruch’s formula, because it fails on its own accounts to support the positivists’ thesis that in no circumstance our moral evaluation should determine what should count as valid law. In this regard, the final conclusion, taken in line with Radbruch’s formula, is that, in regular circumstances, the positivity of law will be determined according to the conventional criterion of validity of a given legal order. However, in the most extreme cases of the laws that violate the fundamental human rights, and in particular human dignity, it would be the value criterion that would ultimately determine law’s positivity.

Key words: human dignity, positivity (validity) of law; legal positivism; natural law theory; Radbruch’s formula; the ‘unbearably unjust’ laws


								
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