Punishing individuals who complied with intolerably unjust 'laws' in predecessor regimes

• Main Author: TAN, Seow Hon
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2024
• Subjects: criminal law; legal validity; Radbruch; transitional justice; unjust law; Criminal Law
• Online Access: https://ink.library.smu.edu.sg/sol_research/4545; https://ink.library.smu.edu.sg/context/sol_research/article/6503/viewcontent/punishing_individuals_pvoa_cc_by.pdf
• Institution: Singapore Management University

Suppose a 'law' required individuals to report neighbours of a certain race for extermination. If individuals complied with such a 'law' to avoid the penal sanction of a death sentence, should a tribunal involved in the process of transitional justice in a successor regime punish them? Radbruch suggests that intolerably unjust 'laws' are not legally valid. According to Radbruch's Formula, reporting the neighbour would not be justified by law. The logical implication of this Formula is that the act of reporting was, in substance, abetment to murder (or possibly, genocide). Yet, punishing individuals who complied with the purported 'law' in the predecessor regime seems unfair, particularly as some legal positivists would regard the law as valid. Individuals might have acted according to what they believed was law and under duress (out of fear of penal sanction for failure to comply) in the predecessor regime. I examine whether these are valid considerations in proceedings before a tribunal prosecuting individuals for acts done in compliance with intolerably unjust 'laws' in predecessor regimes. While the perceived unfairness might militate against acceptance of Radbruch's Formula, if the considerations are not valid, Radbruch's Formula is unobjectionable.