Universality of punishment

It is enough to think of the ius commune of tenth-century continental Europe (not to mention the ius gentium of the Romans) to realise that the concept of law has been undergoing an irreversible process of maturation towards rational universality, at least on the level of ideas, a process which has been particularly intense in the twentieth century. The stage currently reached is best characterised by the three predicates that we shall attempt to clarify below: Supra-statutory law. The expression is taken from the title “Statutory lawlessness and supra-statutory law” of a famous paper by Gustav Radbruch (Gesetzliches Unrecht und übergesetzliches Recht, in “Süddeutsche Juristen-Zeitung,” 1946), wherein “supra-statutory” translates “übergesetzliches.” What is its significance? It is best expressed in the thesis that a law (statute, Gesetz) is not by itself the law (Recht). To refer to a decision by the German Federal Constitutional Court of 1973, “law does not simply coincide with the totality of written statutes” (drawing on Article 20 (3) of the German Constitution).