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Solidarity as a category of legal and penal legitimation: The example of the state of aggressive need justifying
Authors
Michael Pawlik
Albert-Ludwigs-Universität Freiburg (Alemania)
The justifying «aggressive state of emergency» (section 34 of the German Criminal Code/StGB) is a challenge to liberal criminal legal Systems, as it imposes a legal obligation to tolerate an intrusion into his own legal sphere onto an innocent bystander. This obligation is traditionally based on the notion of «weighing of interests», which is, however, not convincing due to the utilitaristic structure of this idea. More recently, the topos of «solidarity» has replaced the traditional approach as a basis of legitimation, but this topos is not more than a mere catchphrase, as long as it lacks a
reasonable justification. To close this justification gap, it is widespread to use prudential considerations. Accordingly, it is prudent for every citizen to agree on a rule along the lines of section 34 StGB with his fellow citizens, for the sake of minimizing his own risks of life. But this approach cannot convincingly answer the question regarding the reason for the obligation imposed by the «state of emergency» rules. Additionally, it falsifies the quality of legal wrong that a citizen commits by breaching his obligation during the state of emergency. Therefore, this essay suggests to see the «offender» who is justified by a state of emergency as representative of the State’s caring society (staatliche Solidargemeinschaft).
The right to solidarity, that can be claimed by any citizen in a state of
emergency, is directed against his fellow citizens as a whole, just as in all other cases of
need through no fault of one’s own. The precise individual
person the duty is actually
imposed onto is merely a «transit station». Therefore, only such duties may be imposed
onto him that can be compensated afterwards, and the community
must also ensure that
such compensation actually takes place.
Keywords:
Criminal law, state of emergency, soldarity, weighing of interests, justification defennces
Author Biography
Michael Pawlik, Albert-Ludwigs-Universität Freiburg (Alemania)
Pawlik, M. (2017). Solidarity as a category of legal and penal legitimation: The example of the state of aggressive need justifying. Revista De Estudios De La Justicia, (26), 222–247. https://doi.org/10.5354/rej.v0i26.46485