14 Pages Posted: 29 Aug 2005
Ever since the protection of individual freedom replaced justice as the primary criterion for the legitimacy of government, criminal punishment, as one of the most drastic exercises of governmental authority, has been held against that standard, too. As a result, any diminution of freedom through punishment must at the same time be justifiable as a realization of freedom. So long as the loss of the criminal's freedom is traded off against gains in the protection of everyone else's freedom, consequentialist accounts provide an appealing strategy of vicarious justification. But once we require that for complete justification freedom must not only be realized for everyone else but also in the person of the criminal, a more sophisticated and inclusive strategy is required. Michael Pawlik, professor of criminal law and philosophy of law at the University of Regensburg, Germany, takes up the challenge of disentangling the paradox of punishment and freedom in his latest book Person, Subjekt, Bürger (Person, Subject, Citizen), in which he presents a highly original retributive theory of punishment. Pawlik's theory is rooted in the legal philosophy of Hegel and Fichte, whose concepts of recognition and of the subject he recasts in a framework of communication theory, inspired by the works of Günther Jakobs and Niklas Luhmann. By applying his theory to questions of criminal law doctrine such as self-defense, defense of others, provocation, and inchoate crimes, Pawlik succeeds not only in providing a plausible solution to the problem of vicarious justification, but also in bridging the gap between theory and practice.
Keywords: Criminal law, theory of punishment, philosophy of law, hegel, consequentialism, freedom
Suggested Citation: Suggested Citation
Kaiser, Hanno F., The Three Dimensions of Freedom, Crime, and Punishment. Buffalo Criminal Law Review, February 2006. Available at SSRN: https://ssrn.com/abstract=788584