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What Are the Arguments Against the Majority’s Desire for Punishment?

Seelmann, Kurt. Criminal Justice Ethics; New York Vol. 27, Iss. 1, (Winter 2008): 45-52.

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Along with the offenses that jeopardize individual perfection as presented by Hetcher in his discussion of the theory of perfectionism [177], I will add the following norms: desecration of the peace of the dead5; violation of the freedom of religion and religious practice6; exhibitionism7; the unsolicited offer of pornographic publications8; incest9 between adults; and racial discrimination.10 Outside criminal codes we can find penal clauses in the laws on reproductive medicine and on genetic engineering, above all in the punishability of cloning.11 These groups of norms can be differentiated in various ways.

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I Preliminary Reflections

In the chapter “Political Theory” of his new book, The Grammar of Criminal Law,1 George Fletcher deals with four schools of thought in political theory: libertarian- ism, liberalism, communitarianism, and perfectionism. He raises questions about how these different theories understand the role of punishment in state criminal law. Libertarianism starts out from the idea that only clearly definable harm toward other citizens may be criminal- ized; therefore libertarian philosophy “leads to a strong emphasis on the harm principle” [158]. In principle, liberalism holds the same idea. Additionally, with its “distinction between the Right and the Good” [162], lib- eralism resists as far as possible any moralized account of what is to be declared punishable by state law. In con- trast, communitarianism and perfectionism seem less hesitant “to adapt the institutions of the criminal law to some purpose other than the straightforward sanc- tioning of wrongful deeds” [176]; that is, their adherents are tempted to go beyond indisputable violations of the law and consider that interferences with vested interests are liable to punishment. When Fletcher writes about communitarianism, the subject of criminal law is not mentioned. He is more forthcoming when discussing perfectionism, and stresses the fundamentally different beliefs among perfectionists, libertarians, and liberals: “In Kantian terms, the shift from a libertarian or liberal way of thinking to a perfectionist agenda is signalled by promoting the good over the right” [177]. Perfectionists “take the moral as the guide to the legislative activities of the state” [177]. In the case of perfectionism, accord- ing to Fletcher, “states would enforce moral strictures on the taboo against suicide, on keeping promises, on perfecting one’s talents, and on coming to the aid of others” [177]. It is concerned with “perfecting the character of its citizens” [178], because “the perfectionist approach to criminal justice focuses hard on the person and his or her need for improvement” [179].

From Fletcher’s exemplary juxtaposition of libertarianism and liberalism, on the one hand, and communitarianism and perfectionism, on the other hand, we shall try to gain new insight for understanding other areas of criminal law that cannot be justified from a libertarian or a liberal point of view. We shall see that perfectionists do not demand punishment of deeds in the narrow field of personal perfection only, and that communitarian belief, for its part, may be a source of reasons for punishment that Fletcher does not take notice of. We shall also propose control by “reflective equilibrium” as a criterion for the acceptability of a majority’s desire for punishment. This principle, which holds that our basic theoretical conceptions and our well-considered individual opinions have to confront and moderate each other, will help to clarify answers to some of the questions raised by Fletcher.

The idea that criminal law has to protect individual rights is sometimes questioned for the fundamental reason that such an idea cannot (or at least cannot completely) account for the true reasons of criminalization from a time-specific, individualistic, liberal position. For, the focus may be on behavior that “offends the homogeneous beliefs of society,”2 even though such behavior does not infringe upon anybody’s individual rights or upon clearly definable goods. In the view of critics of libertarian or liberal positions, criminalization of what we shall call “behavioral offenses”-for want of a better rendering of the German word Verhaltensdelikte-is the accepted norm. They do not see it as an exception to the rule that only individual infringements of rights are punishable, but rather as a totally acceptable case of punishment of intolerable behaviour, and only partially covered by the classic concern with the punishment of harm.3

In the following pages we focus our attention on this criticism of classic-liberal criminal law based on the theory of “behavioral offenses.” We shall not take into account so-called collective goods that are in some way important to the framework of the protection of individual rights, such as the integrity of judicial power. Instead, we will deal with offenses that in German have been called Gefühlsschutzdelikte, that is, “offenses against the protection of one’s feelings.” That is to say, we will examine the justification of criminalization that forbids certain behavior for its “disorienting effects,” its causing of “highly heterogeneous fears.”4

We will first discuss, in Section II below, what criminal offenses need such justification and cannot directly or indirectly be connected to individual rights. Our answer to that inquiry, however, begs the question as to how such a desire for punishment-one that calls for corresponding criminal laws-can be limited in scope within a legal framework. The possible instruments for grounding this desire are the more technical criteria of suitability, cost, and systematic correctness. Two areas of criminal law theory that Hetcher examines, first, the distinction between right and morality as postulated by classical modernists, and, second, the need for consensus, will then be examined as pertinent to our discussion. Finally, before turning to the theory of “reflective equilibrium,” we shall attempt to draw a conclusion about these two basically reasonable but ultimately inadequate approaches.

II The “Behavioral Offenses” under Discussion

The term “behavioral offense” is not univocal. Along with the offenses that jeopardize individual perfection as presented by Hetcher in his discussion of the theory of perfectionism [177], I will add the following norms: desecration of the peace of the dead5; violation of the freedom of religion and religious practice6; exhibitionism7; the unsolicited offer of pornographic publications8; incest9 between adults; and racial discrimination.10 Outside criminal codes we can find penal clauses in the laws on reproductive medicine and on genetic engineering, above all in the punishability of cloning.11

These groups of norms can be differentiated in various ways. One possibility is their division according to the kind of offended feelings: serious aesthetic annoyances (such as the unwarranted observation of sexual acts), the violation of feelings of respect (such as in desecration of the peace of the dead), the breaking of old (incest) or new (cloning) taboos, or the violation of feelings of identity (racial discrimination). According to Hetcher’s system, keeping up such-as a rule, culturally predetermined-taboos would probably make best sense as a demand of communitarianism [169ff.], because it focuses on the protection of culturally predetermined facts. In consequence, communitarianism would concern itself with “cultural protection.” Of course, such classifications partially overlap. Another division could focus on the degree to which feelings are violated-taking account of the extent to which a person feels loss of security in the world, ranging from partial impairment (for example, the receipt of pornographic material in the mail) to an existential challenge to a person’s view of the universe or self (as with cloning or racial discrimination). Lastly, one could also differentiate by judging how close certain behavior comes to violating individual rights. Exposure to exhibitionism or pornography is similar to a violation of individual privacy, in which disregard of a personal sphere of intimacy violates individual rights. Such a theory could also be accepted-within certain limits-by representatives of libertarianism and liberalism according to Hetcher’s definitions [156ff., 162ff.]. Other prohibitions, such as against violation of religious freedom and religious practice, and probably also incest between adults, are exclusively meant to prevent unpleasant feelings. In this respect we are dealing with “offenses against the protection of one’s feelings” in the stricter sense. In Fletcher’s classification these would probably best fit perfectionism [176ff.], because absence of unpleasant feelings could be classified as belonging to a person’s state of perfection.

Nowadays, some of these offenses are disputed: the taboo against brother-sister incest is no longer universally recognized, and the long-term ban on cloning has been under discussion for years. This raises the question whether there are justifiable limits to the protection of feelings by means of punishment. Other scenarios involving extensions to the protection of feelings are unacceptable and raise the question of rationally defin- able limits. For example, assuming corresponding cul- tural changes, what could be a possible response to a legislator who wants to penalize homosexual acts, as in former times, and whose justification is that the thought alone that such things happen in other people’s bed- rooms robs many people of their security of orientation (Orientierungssicherheit) in this world? In this context, even Fletcher has to admit that impunity in the case of a violation of a taboo still upheld by many people is ten- able only because (and as long as?) a “significant sub- community objects to sanctions” [185]. What arguments could be proffered against declaring professed atheism punishable because it violates a taboo upheld by many believers? In this context, is it possible to argue at all, or are we obliged to fall back on the position that beyond suitability, cost, and coherence considerations, punishable deeds are invariably culturally determined, and relative to society and time, and are therefore beyond criticism?

An exploration of the differentiation between right and morality as it has developed in Western modernity will show whether this differentiation has produced any arguments for limiting the criminalization of behavioral offenses.

III The Differentiation between Right and Morality

The differentiation between right and morality is the classical starting point for criticism of the criminalization of (some) behavioral offenses. Fletcher concurs, when he writes about perfectionist desires for punishment: “All of these laws would violate the libertarian premises of Kant’s legal theory, because they would restrict freedom in the name of the good” [177]. This differentiation assumes that there exists “purely moral” behavior, and that such behavior should not be subject to legal restrictions. From the point of view of the differentiation between right and morality, at least some behavioral offences inadmissibly subject purely moral commands to legal constraints and thus constitute “legal moralism.”

To start with, even the division between right and morality could be criticized as a historical coincidence and as counter-intuitive.12 But is that so?

When discussing right and morality in the context of legitimate limits to criminalization, the arguments as to why certain norms should have moral significance only and should not be permitted to become legal norms are of particular interest. Historically, Kant’s differentiation between legal and moral obligations has been-and still is-pivotal for this discussion: legal obligations affect only the external relationship between persons and may only forbid interference with others’ freedom. According to Kant, obligations to oneself as well as obligations of care for other human beings come exclusively under the heading of moral obligations.13

The distinction between legal and moral obligations to oneself is of little importance in the context of behavioral offenses or so-called offenses against the protection of one’s feelings. But Kant’s differentiation between the legal and moral obligations of care for others may be of importance in determining limits for behavioral offenses. Whether the obligation to protect the orientation or feelings of others should be classified either as a prohibition against harm (a legitimate legal obligation) or as an obligation of care (that is, only a morally relevant obligation) is certainly not a simple matter to resolve, although not a priori impossible.

What are Kant’s reasons for not regarding obligations of care as legal obligations? For Kant, such obligations are too dependent on the arbitrary designs of others. In view of the limited resources available to a human being, such duties cannot be universally applied, and-what particularly disqualifies them as legal obligations-they cannot be precisely circumscribed.14 Since Kant, various partially valid objections to this argument have been put forward. The existing general consensus-at least in Europe-that it is desirable to penalize failure to assist in distress (one of Fletcher’s examples of a perfectionist position [177]), confirms this. Nevertheless, in the view of many authors, Kant’s distinction still enjoys a certain theoretical plausibility.15

The question, however, remains: what constitutes injury to another, and what merely constitutes refusal of care? On the one hand, injury need not be confined to the material damage; “intellectual damage” may also constitute a violation of the law, along with massive insults. The examples given above show that current law embraces the protection of feelings. On the other hand, there is no right to “not having to see certain acts that one thinks (ethically, morally) unbearable; sometimes one has to tune out or avert one’s eyes.”16 But where in this case would we draw the line between right and morality? Would it be where, to quote Fletcher, “no significant subcommunity objects to the sanction” [185]; or where there is “a widely held unanimous rejection of certain practices”17; or where “general and deeply engrained values of the population”18 and “deeply rooted cultural convictions”19 are in question? These accounts apply to breaking taboos at most, not to massive harassment of a kind that is usually thought punishable, nor probably to vulnerable feelings of group identity. And the reference to “deeply engrained” and “deeply rooted cultural” values or convictions would still seem too vague.

With regard to the contribution that the classic division between right and morality can make to limiting criminalization, it cannot be determined by quantifying the individual intensity of feeling and the extent of social affect. Elsewhere I have tried to get to the heart of the differentiation of legal and moral obligations by focusing on an example in which another is violated as a person-by unilaterally refusing to recognize the other as a legal person.20 Punishment, in the sense of reducing a perpetrator’s legal status, is necessary only as legal restitution when the perpetrator has reduced the legal status of another.

But what does this mean in the case of behavioral offenses? If the common denominator of such offenses is that they call into question a human being’s security of orientation in this world, then we have to ask in what circumstances this security of orientation is jeopardized to such an extent that an individual is no longer recognized as a legal person. This seems to me to be the case when an individual’s general competence of orientation (Orientierungskompetenz) in the world is impaired by others’ behavior-that is, when an individual’s security of orientation is placed at risk.21 On the one hand, it cannot be the task of penal law or law in general to safeguard a particular random state of orientation (Orientierung) of human beings in a world that is subject to constant cultural change. On the other hand, penal law cannot refuse-in extreme cases-to protect human beings’ security of orientation. Although the protection of a certain orientation would be (merely) the protection of morality, the protection of an individual’s competence of orientation is synonymous with the protection of an individual’s basic regulated interaction with others. This basic regulated interaction could possibly be destroyed by violations like brain-washing or undermining one’s sense of identity by denying the existence of genocide in relation to someone who survived this genocide. The ability to have regulated interaction with others constitutes an individual’s competence as a legal person and therefore the protection of this competence is a legitimate task of the law.

To summarize, we can say that according to the traditional division between right and morality, injury to other human beings is legally relevant and transgresses the sphere of morality only if the injury threatens the other as a legal subject. This view is shared by Fletcher. He writes: “states and international courts may not punish simply on claims of moral truth” [186]. In cases concerning the security of orientation of human beings, this means that it is not sufficient for injurious behavior to impair only specific orientations and their security. In the Kantian tradition, the legal protection of specific orientations would constitute an inadmissible legal protection of morality. The law is called upon only when general competence of orientation-interactive competence being the cardinal element of the legal personality-is threatened. This may hold for breaking some taboo-these days, cloning rather than incest-and probably for many cases involving the protection of a sense of identity.

The claim that the punishment of behavioral offences should be dependent on violations of “deeply engrained values” or “deeply rooted cultural convictions” probably does not have any other significance. It refers to the fact that a mere specific impairment of orientation or feelings should not be subject to punishment. The disadvantage of adopting such a formula lies in the pure quantification (“deeply”) involved, one that obscures the fact that qualitatively different objects are impaired: in the one case security of orientation only for partial contents, in the other competence of orientation as such.

IV Right, Morality, and Culture

We must ask whether the classic division between right and morality, does not, all the same, reflect an arbitrary division that could develop only within a very specific cultural context? Does it not imply the “narrow angle of vision”22 of a position that is primarily geared to the interests of individuals-in other words, something that constitutes “a culturally particular case”? And does this not promulgate a normative egoism? Communitarianism would come close to the point I am making, for, according to Hetcher, “communitarians insist that all selves are ‘situated’ in a particular culture” [169].

It can, indeed, be noted that in many cultures the penalization of behavioral offenses takes place as a simple matter of course and is not seen to need any further justification. Libertarian and liberal positions are, as Fletcher illustrates, “hardly universal” [186]. It is certain that the enhanced need for justification of such offenses that we observe in our culture in contrast with offenses against individuals has its roots in a development that is specific to Western Europe and North America. We certainly concur with the view that we are dealing with a culturally specific position. The prerequisite for such a differentiation between right and morality and the skepticism toward criminalizing offenses against feelings is a philosophy of normative individualism that should not be taken to be natural.

According to such a philosophy of normative individualism, any political act is grounded in the last instance on individuals.23 This also holds true for the state’s power to punish. As far as the justification of punishment and of criminal law is concerned, the criminalization of injury to individuals is easiest to justify for the normative individualist. However, from this point of view, the protection of collective legal assets seems to be legitimate only insofar as it can be understood as a condition for the protection of individual rights and assets. To the normative individualist, behavioral offenses or the violation of feelings have to comply with this, and, therefore, must in the last instance serve to protect individuals. The distinction between right and morality has, then, an important practical function of limiting criminalization: when protecting morality there is always the danger of justifying state interference either with collective values as such or with individual interests-not in the interest of all concerned, however, but in the interest of certain groups. In both instances, interference cannot be justified to the individual who is made subject to it.

Normative individualism, however, does not equate to normative egoism. The individual interest in the welfare of all or in other collective values-and their specific norms of punishment-is not a problem for normative individualism per se. The same is true for the acceptance of perfectionist positions that cede to the state the right to interfere in the rights of citizens in order to strengthen the future autonomy of individuals or even to protect individuals from self-induced limitations to their autonomy. Such positions are compatible with normative individualism.24

By contrast, the normative-collectivist position takes a (or the) human community as the point of reference for state interference, and it does so by attributing to the community a value by itself, independent of individual human beings. The fact that only individuals are affected by state interference would seem to speak against this position and for normative individualism: communities do not suffer pain and have no fixed life plan.25

In light of this argument it is no coincidence that-at least in our culture-it is difficult to find professions of normative collectivism. Of course, there are authors who reasonably argue for genetic collectivism. The individual becomes an individual only as the product of a functioning collective. On a normative level, these authors do not as a rule argue against justifying normative individualism, but rather against egoism that does not take sufficient account of a collective interest in individual preference. If, then, normative individualism is deemed to be preferable, this takes us back to the differentiation between right and morality and the resulting practical limits rooted in competence of orientation. Communitarian or perfectionist positions in a narrower sense thus do not seem tenable. One objection remains, however: This criterion of competence of orientation still seems to be too vague to enable us to define the limits of justifiable criminalization. Admittedly, the model developed here can give only a rough guideline, not a definite limit. In terms of scientific honesty, it is quite reasonable to distance oneself from the right/morality paradigm that purports to limit criminalization and simply to accept that criminalization will result from the consensus about the basic values of our living together. Fletcher, too, seems to lean toward this latter model: “The government should not be entitled to legislate in the field of victimless crimes if there is significant organized opposition” [185]. Let us call this the “consensus model” and look at it more closely.

V The Need for Consensus

The consensus model attempts to base criminalization solely on the rights and laws about which a given cul- tural community is in agreement. The only decisive issue would concern the norms of punishment that society, as a community of shared values, is prepared to accept. Champions of this position-including Fletcher [185]-stress the fact that there is no transcultural borderline between merely immoral behavior and legal offenses.26

At first glance, the consensus model may strike one as an arbitrary construction, because the fact of criminalization decides only what is criminalized. This impression, however, is erroneous because two positions seem to be excluded.

One excluded position argues that natural right is based on what is evidently right. The consensus principle is critical vis à vis such a position. Its tenet is that neither “natural evil” nor “traditional evil” should influence our judgment on punishability; instead, punishability should be determined by consensus or at least by the ability of those affected to consent. According to Fletcher, we could interpret this to mean that insofar as almost everyone has an interest in criminalization, a “significant organized opposition” objecting to sanctions is lacking [185] and so impunity is not tenable. If judgments on punishablity have to pass the muster of such formal criteria as the usefulness of punishment in correcting behavior, the social cost of the act, and systematic coherence with other decisions by the legal system, then not even factual consensus will be able to justify criminalization. The consensus model is not only a form of legal positivism, but has to be seen as a theory according to which consensus-at least within limits-is in need of justification.

The second position excluded is utilitarianism. The consensus model also views this position critically. According to it, punishability is not determined by social expethency, but by the consent of the people concerned. Even if the criminalization of a certain behavior results in a larger overall benefit, this fact alone-according to the consensus model-would be insufficient to justify criminalization.

Does the move toward a need for consensus already represent a liberal or even individualistic position? Even if the consensus model recognizes every individual as a “moral person,”27 it does not thereby become a form of legal moralism. According to the latter, the objects protected by criminal law are morally fixed, irrespective of individual preferences or decisions. By contrast, the consensus model claims that the decision as to what is in need of protection is solely that of human being living in a particular culture. The consensus model, therefore, is concerned with the result of a human decision, a decision reached by a collective of individuals-and not with objective values that are independent of such individuals. It is, ostensibly, important that such decisions are not influenced solely by personal interests in an egoistic sense, but also by such individuals’ conception of their social obligations and their view of the common welfare.

This clearly illustrates the point that the consensus principle cannot deny its origins in normative individualism either-which, as demonstrated, also makes altruistic and societal interests the basis of individual decisions. According to the consensus principle, collective values are not the last justificatory consideration. Although collective values are important, they have to be recognized and justified by the individuals to whom they are applied.

Yet again, we have to draw attention to a factor that the consensus model shares with the division between right and morality: The exclusion of normative (natural-right) collectivism on the one hand and utilitarianism on the other, as well as the fact that individuals in a certain culture decide in their capacity as moral beings, does not provide the clear contours we need for a criminalization criterion. Purely formal criteria, such as suitability, cost, and coherence, are of a general legal nature, and therefore sensible, but they are not really of great help in providing concrete criteria for criminalization.

VI Reflective Equilibrium

If neither the differentiation of right and morality nor the conensus principle produces clear results, each would seem to fail as a candidates for rationally limiting criminalization. Or does this not follow?

One possible solution is suggested by a principle that was first made generally known through John Rawls’s theory of justice,28 and, though Fletcher considers Rawls’s paradigm a promising “systematic moral theory” [192], he does not use it to solve the problem of criminalization. A closer look at this principle reveals that it was under discussion long before Rawls and can be traced back at least to Hegel.29 The principle in question holds that our basic theoretical conceptions-even if they are sometimes vague-and our well-considered individual opinions have to confront each other; that is, they have to be reflected against each other and brought into equilibrium. This is called a “reflective equilibrium,” and it is aimed at in the course of an ongoing balancing process, in which there must be a continuous verification of a previous understanding, and of the theoretical corrective on which it is based. In the last few decades this method of “reflective equilibrium” has been more precisely elaborated.30 A “wide reflective equilibrium” brings three factors into play: intuition (or opinions, feelings, and convictions) is assessed against basic principles of rights and ethics, on the one hand, and relevant background theories, such as a particular conception of a person, on the other. This process seems to characterize the normal acquisition of new knowledge. In a combination of intuition and considerations of coherence, the process starts out from “natural consciousness” and lets the “emerging knowledge” inform cognitive experience.31

So far as “reflective equilibrium” is concerned, our gut feeling for what constitutes a punishable offense would provide the emotional basis for an argument that has to be taken very seriously. This basis must then be benchmarked against two considerations: first, the relevant underlying theory which specifies that in the modern state founded on the rule of law only normative individualism can justify state intervention, and, second, that only injury to legal personality can function as a legal principle to legitimate criminalization of behavioral offenses. However, what is perceived as an injury of legal personality cannot be established once and for all. Because this principle is dependent on, for example, our current consensus on what is punishable-because socially intolerable-behavior, the intuitive level must engage with the theoretical levels. As a result of this argumentive process, an equilibrium may be attained.32 In any case, there is always the possibility that our intuition may in the end prove untenable-we may come to see objections against a rapidly achieved consensus about punishability and the need for punishment that show our initial seemingly reasonable responses to be ultimately unjustified.33

VII Conclusion

In conclusion, we will analyze this process by means of three examples in which punishment is often prescribed: desecration of the peace of the dead, (reproductive) cloning, and incest.

With regard to the first two examples, it is to be expected that there will be a widely felt need for punishment. In the first example, the feelings of familial piety toward the deceased can be perceived as the object of legal protection. In the second example, it may be claimed either that a cloned person has a right to an existence that is not genetically predetermined by others, or that a person has a right not to be genetically duplicated. The theory of normative individualism is not basically at variance with either of these demands for punishment. Nevertheless, there remains the question whether any basic moral or legal principles would forbid criminalization in such cases. If we base our argument on the fact that only an injury to legal personality justifies the punishment of behavioral offences, then the consequences for the given examples are as follows.

In the case of the desecration of the dead a decisive consideration would be whether disrespectful behavior toward relatives could in any way impair their competence of orientation. This competence has to be assessed against the background of a general desire for punishment. In this case the result is ambiguous. Nevertheless, in my opinion one could very well put forth the argument that, in view of existing reservations about disrespectful behavior toward the dead, injury to the competence of orientation of relatives cannot be excluded. If this position can be defended, then the legislator must be thought to have some discretion to decide for or against the appropriateness of punishment.

Cloning does not present a very different case. Here too the legislator can be ceded discretionary power to decide in favor of criminalization. To either of the affected persons-the person who has been “reproduced” against his or her will, or the new clone-the idea that their duplication has come about as a human design may be so disrespectful and unbearable that criminalization may be justified.

In the case of the punishment of incest between adults, however, the decision about justifiable criminalization as the result of a process of reflective equilibrium may go the other way. One can assume that many people would desire punishment in such cases. One can further assume that punishment would not be sanctioned only by collective interest, but also in the interest of many who would prefer not to live in a world in which incest is tolerated. Nevertheless, very few people will nowadays feel that their competence of orientation has been impaired by the thought that incest between adults occurs. This is confirmed by the fact that the person whose feelings have been injured does not normally perceive incest, but only visualizes it in his mind. This is to be contrasted with the first two cases of desecration of the dead or cloning in which, respectively, the relatives of the dead or the persons involved in unwanted cloning, are clearly and directly confronted with the deed.

Fletcher, in contrast, bases his argument about incest on the “sociological datum” that “no significant group” objects to punishment. He therefore argues for punish- ment in the case of incest between adults [185]. My own argument, however, grounded in the process of reflec- tive equilibrium, would probably arrive at a different assessment about the appropriateness of punishment in such cases.

Footnote

NOTES

1 George Hetcher, The Grammar of Criminal Law: American, Comparative, and International, vol. 1: Foundations (New York: Oxford University Press, 2007). [Bracketed page numbers in the text refer to this volume.] Some of the reflections presented here have already been mentioned in my essay “Verhaltensdelikte: Kulturschutz durch Recht?” in Festschrift für Heike Jung, ed. H. Müller-Dietz, E. Müller, K.-L. Kunz, H. Radtke, G. Britz, C. Momsen, and H. Koriath (Baden-Baden: Nomos, 2007) 893-904.

2 Roland Hefendehl, “Die Materialisierung von Rechtsgut und Deliktsstruktur,” GA/Goltdammer’s Archiv für Strafrecht (2002): 21ff, 23.

3 Günter Stratenwerth, “Zur Legitimation von Verhaltensdelikten,” in Mediating Principles-Begrenzungs-prinzipien bei der Strafbegründung, ed. Andrew von Hirsch, Kurt Seelmann, and Wolfgang Wohlers (Baden-Baden: Nomos 2005), 157ff, 160.

4 Günther Takobs, Strafrecht, Allgemeine Teil, 2nd ed. (Berlin/ New York: de Gruyter, 1991), 2/p, 16ff.

5 Art. 262, Swiss Penal Code (SPC); § 168 in the German Penal Code (GPC).

6 Art. 261 SPC; § 167, 168 GPC.

7 Art. 194 SPC; § 183 GPC

8 Art. 197 nr. 2 SPC; § 184 GPC.

9 Art. 213 SPC; § 173 GPC; also mentioned by Fletcher.

10 Art. 261SPC; § 130 GPC)

11 Art. 36, Swiss law on reproductive medicine (FmedG -Fortpflanzungsmedizingesetz); § 6 of the German law on protection of embryos (EschG-Embryonenschutzgesetz).

12 Stratenwerth, “Zur Legitimation von Verhaltensdelikten,” 160.

13 Immanuel Kant, Metaphysik der Sitten, ed. Wilhelm Weischedel, vol. IV. (1797; Frankfurt a. M.: Suhrkamp Verlag,1956); Introduction to the Theory of Law and Introduction to the Theory of Virtue, at <http://www.bbaw.de/bbaw/Forschung/Forschungsprojekte/kant/de/Ueberblick>.

14 For greater detail, see Kurt Seelmann/’Solidaritätspflicht en im Strafrecht?” in Recht und Moral, ed. Heike lung, Heinz Müller-Dietz, and Ulfrid Neumann (Baden-Baden: Nomos, 1991), 295ff.

15 For a similar justification, see John Stuart Mill, Utilitarianism, Liberty, and Representative Government (London: Dent & Sons, 1936), 36.

16 Horst Dreier, “Commentary on Art. 1 Abs. 1 German Constitution (Grundgesetz),” in Grundgesetz, Kommentar, ed. H. Dreier (Tübingen: Mohr, 2004), vol. 1, note 119.

17 Id.

18 Knut Amelung, Rechtsgüterschutz und Schutz der Gesellschaft (Frankfurt a.M: Athenäum, 1972), 325.

19 Roland Hefendehl, Kollektive Rechtsgüter im Strafrecht (Köln: Heymanns Carl Verlag, 2002), 56.

20 Kurt Seelmann, “Rechtsgutskonzept, ‘Harm Principle’ und Anerkennungsmodell als Stiafwürdigkeitskriterien,” in Mediating Principles, ed. von Hirsch, Seelmann, Wohlers, and Hefendehl, 261ff.

21 Kurt Seelmann, “Gefährdungs- und Gefühlsschutzdelikte an den Rändern des Lebens,” in Festschrift für Ernst Amadeus Wolff zum 70. Geburtstag, ed. Rainer Zaczyk, Michael Köhler, and Michael Kahlo (Berlin: Springer, 1998), 481ff, 492f.

22 Stratenwerth, “Zur Legitimation von Verhaltensdelikten,” 160.

23 For details, see Dietmar von der Pfordten, Rechtsethik (München: CH. Beck, 2002), 227ff, 237.

24 See also Dori Kimel, “Neutrality, Autonomy and Freedom of Contract,” Oxford Journal of Legal Studies 21, no. 3, (2001): 473ff . 494.

25 von der Pfordten, Rechtsethik, 282.

26 Jakobs, Strafrecht, 2/21; Stratenwerth, “Zur Legitimation von Verhaltensdelikten,” 160.

27 Günter Stratenwerth, “Kriminalisierung bei Delikten gegen Kollektivrechtsgüter,” in Die Rechtsgutstheorie. Legitimationsbasis des Strafrechts oder dogmatisches Glasperlenspiel? ed. Roland Hefendehl, Andrew von Hirsch, and Wolfgang Wohlers (Baden-Baden: Nomos, 2003), 255ff, 258.

28 John Rawls, A Theory of Justice (Cambridge, MA: Belknap/ Harvard University Press, 1971), 17ff.

29 Nelson Goodman, Fact, Fiction and Forecast (Indianapolis, IN: Bobbs-Merill, 1965), 65ff; for past history, see Georg Wuhelm Friedrich Hegel. Phänomenologie des Geistes ed. Michel Moldenhauer (1807; Frankfurt a.M.: Suhrkamp, 1989), 68ff (Introduction).

30 For greater detail, see Martino Mona, “Rechtsphilosophische Analyse der Entgeltlichkeit und Vertragsfreiheit in der Nierenspende-Verwerflicher Organhandel oder legitimes Anreizinstrument?” ARSP /Archiv für Rechts- und Sozialphilosophie 90 (2004): 355ff, 363ff. As an introduction, see also Norman Daniels, “Introduction: Reflective Equilibrium in Theory and Practice,” in Justice and Justification. Reflective Equilibrium in Theory and Practice, ed. N. Daniels (Cambridge: Cambridge University Press, 1996), 1-17.

31 Hegel, Phänomenologie des Geistes, 74, 75.

32 Mona (“Rechtsphilosophische Analyse der Entgeltlichkeit und Vertragsfreiheit in der Nierenspende”) demonstrates exactly this with the example of the ban on kidney donation for payment.

33 For the state of justification, see Gerald F. Gaus, Justificatory Liberalism (New York: Oxford University Press, 1996), 105.

AuthorAffiliation

Kurt Seelmann, author of Anerkennungsverlust und Selbstsubsumtion-Hegels Straftheorien (2995) and Rechtsphilosophie (2007), is Professor of Criminal Law and Philosophy of Law in the Law Faculty of the University of Basel, Switzerland.

Word count: 5902

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