Norm Confirmation and Identity Balance: On the Legitimacy ...

ISSN 2291-9732

Norm Confirmation and Identity Balance: On the Legitimacy of Punishing

Michael Pawlik

Abstract

“Why is the State allowed to punish?” This is the prominent question underlying every serious examination of criminal law. The author’s answer covers a broad range of fundamental legal issues. Following the republican idea of freedom, he conceives punishable wrongdoing as a violation of the duty to contribute to the maintenance of the legal system. In its practice of punishment, the legal community demonstrates the correlation between the performance of the citizens’ duty of cooperation and their enjoyment of personal freedom. Nevertheless, practitioners of criminal law cannot escape their responsibility for the hardships associated with the imposition of punishments. They cannot help but strive for a balanced relationship between their professional activities and their personal integrity. With its combination of arguments from the fields of philosophy and of the theory of crime, this article is the result of the author’s long-term examination of the fundamental issues of criminal law.

I. Acting

A. Beethoven and Goethe, Acting

In July 1812, there were several encounters in the Bohemian health resort of Teplitz

between Goethe and Beethoven. These are well-known, mainly due to an anecdote

transmitted by Bettina von Arnim.1 While the two great men were out walking together,

they were approached by the imperial court with the empress and dukes. Beethoven then

said to Goethe: “Let us walk on, arm in arm. They will have to get out of our way, not we

out of theirs.” Goethe neither agreed with this nor felt comfortable about it. He let go of

Beethoven’s arm and stood to the side with his hat off, while Beethoven walked between

the dukes with his arms folded. Like many good anecdotes, this one is almost too good to

be true. In any case, even if its historical truth is doubtful, it gives the imagination ample

scope. You can practically see Beethoven and Goethe in front of you. On the one side, the

revolutionary, as Romain Rolland put it, in constant fighting mode, mindful of his

conviction that there are many kings in the world, but only one Beethoven, marching grimly

Professor of Criminal Law, Criminal Procedural Law and Legal Philosophy, Albert-Ludwigs-Universität, Freiburg im Breisgau, Germany. The German original of this text appeared as Normbestätigung und Identitätsbalance: Über die Legitimation staatlichen Strafens (Nomos 2017); the English translation was prepared by Linguamon GmbH (Berlin).

1 I am following the description by Romain Rolland, Goethe and Beethoven 49 et seq. (G.A. Pfister & E.S. Kemp trans., 1931). I would like to thank Lambert Bumiller for referring me to this wonderful book.

http://cal.library.utoronto.ca/

2 Critical Analysis of Law 7:1 (2020)

through the phalanx of the dukes, as they willingly stand aside for him. And on the other

side, the Weimar Privy Councillor, whose life among men is “a constant flight”2 and who

bows his head deeply before the passing empress, probably even somewhat lower than he

would have had it not been for Beethoven’s escapade.

However, it is not the juxtaposition of two diametrically opposed characters and

worldviews that concerns me, but what we can learn about the concept of action from their

divergent reactions. This is what Goethe and Beethoven have in common: they act, not in

the routinely casual way in which so many of us generally carry out our everyday tasks, but

in a highly reflective way, one that focuses on setting an example. Each of them is

confronted with multiple behavioral options between which he has to decide. This is not a

decision that he makes on a whim, but one based on higher values to which he feels himself

committed, given his self-image,3 and which he could justify more precisely if so required.4

The experience—of not being at the mercy of one’s own instinctive nature, one’s

immediate desires, needs and motives, but of distancing oneself from them and evaluating

and influencing them for one’s own reasons, in short: of being able to momentarily pause

and consider—is one of the basic moments of the horizon of meaning of human practice.5

It is true that most of the everyday demands for action are managed by means of established

behavioral patterns. In the situation-appropriate application of such patterns, however, a

specific human sense of what is appropriate, a generalized and habituated insight, which

would be unthinkable without responsiveness to reasons, is expressed.6

Without the ability to deliberate and be proactive, self-determination, which is so

highly regarded nowadays,7 would have no value.8 Determining with respect to someone

means prescribing the contents of his actions to him and thereby exercising control over

him.9 The concept of self-determination also implies a “hierarchical relationship between

2 Id. at 53.

3 Cf. Charles Taylor, Human Agency and Language, in 1 Charles Taylor, Philosophical Papers 21 (1985); Ludger Honnefelder, Was soll ich tun, wer will ich sein? 24 et seq. (2007).

4 Julian Nida-Rümelin, Über menschliche Freiheit 30 (2012); Robert B. Pippin, Back to Hegel? On Slavoj Zizek’s Less than Nothing, 26 Mediations 7, 12 (2012).

5 Tilman Borsche, Rechtszeichen, in Distanz im Verstehen 239, 244 et seq. (Josef Simon ed., 1995); Markus Gabriel, Sinn und Existenz 290 et seq. (2016); Honnefelder, supra note 3, at 17; Julian Nida-Rümelin, Strukturelle Rationalität 17, 75 et seq., 144 et seq., 151 (2001) [hereinafter Rationalität]; Nida-Rümelin, supra note 4, at 82; Julian Nida-Rümelin, Philosophie und Lebensform 153 (2009) [hereinafter Philosophie]; Theda Rehbock, Grenzen der Autonomie, die Natur und die Würde des Menschen: Zur Bedeutung und Problematik des Naturbegriffs in der gegenwärtigen Ethik, in Grenzen der Autonomie 139, 160 (2010); Charles Taylor, The Language Animal 27-28 (2016).

6 Hubert Dreyfus & Charles Taylor, Retrieving Realism 81 (2015); Nida-Rümelin, supra note 4, at 59.

7 On the current prominence of this guiding idea and its function as a discursive strategy, see Uwe Krähnke, Selbstbestimmung 67 et seq., 132 et seq. (2007).

8 Honnefelder, supra note 3, at 17, 115 et seq.; Thomas Schramme, Selbstbestimmung zwischen Voluntarismus und Perfektionismus, 59 Deutsche Zeitschrift für Philosophie 881, 881 (2011).

9 Jörg Fisch, Das Selbstbestimmungsrecht der Völker 26 (2010).

Pawlik — Norm Confirmation 3

commanding and following.”10 The ego understands itself according to the model of a

majority of persons “who . . . achieve independent activity under the ‘guidance’ of one and

the ‘obedience’ of the other.”11 If our actions were just a realization of what drives us, that

governance would be discarded and human behavior would revert back to the status of

mere nature.

I will pick up on the personal aspect of action, namely the inseparable connection

between the question “What shall I do?” and the question “Who do I want to be?”12 again

towards the end of this article.13 In its quality as an expression of personality, however, an action

is also a communicative and thus a social event. This has been clear, in the special case of speech

acts, since Frege,14 but at the latest since Wittgenstein’s argumentation15 against the

possibility of a private language.16 Indeed, I can decide as a speaker on which phonetic

symbols or written characters I use and in what way I connect them together.17 However,

the social practice in which I participate and for which I have been “drilled”18 since my

childhood predetermines the meaning of these signs and their interconnections.19 The same

applies to all other actions.20 As “texts” that reveal certain notions, values and ideas,21 they

owe their specific meaning to the availability of linguistically generated, predetermined

patterns.22 Deliberating, i.e., formulating reasons and weighing them up against each other,23

can only be done by those who, in a twofold sense, are capable of speech, i.e., commonality.

Just to clarify the behavioral possibilities available to them, they must, on the one hand,

formulate their individual perceptions and experiences in conceptual terms, i.e., perceive these

10 Volker Gerhardt, Selbstbestimmung 339 (1999).

11 Id.

12 Honnefelder, supra note 3, at 18 et seq.

13 See infra pt. v.

14 Taylor, supra note 5, at 112.

15 Ludwig Wittgenstein, Philosophical Investigations §§ 255 et seq., at 91 et seq. (G.E.M. Anscombe trans., 1953).

16 See, e.g., Donald Davidson, Problems of Rationality 183 (2004); Taylor, supra note 5, at 90-91.

17 See Pierre Bourdieu, Language and Symbolic Power 41 (John B. Thompson ed., Gino Raymond & Matthew Adamson trans., 1991) (“There is nothing that cannot be said and it is possible to say nothing.”).

18 This is how it is rigorously characterized by Wittgenstein, supra note 15, at §§ 5 et seq., at 4 et seq. [= 1 Werkausgabe 239 et seq. (1984)].


20 See also, from a sociological point of view, Thomas Luckmann, Theorie des sozialen Handelns 103 (1992).

21 Quentin Skinner, Is It Still Possible to Interpret Texts?, 89 Int’l J. Psychoanalysis 647, 652 (2008).

22 Michael Hampe, Die Lehren der Philosophie 315 (2014); Hanno Kaiser, Widerspruch und harte Behandlung 86 (1999); Martin Seel, Aktive Passivität 245 (2014); Pirmin Stekeler-Weithofer, Philosophie des Selbstbewußtseins 97, 183, 411 (2005); Dieter Sturma, Selbstbewusstsein, Gründe und Handeln, in Handbuch Handlungstheorie 201, 202 (Michael Kühler & Markus Rüther eds., 2016).

23 Cf. Seel, supra note 22, at 25.


perceptions and experiences as representatives of something general.24 In addition, they

must assess the possibilities identified by them in this way on the basis of generally

applicable standards, which also apply beyond the specific individual case.25

Only because and insofar as an actor succeeds in transferring his individual

intentions into the form of something general is it also possible for him to make his actions,

along with his values and ultimately his self-image, comprehensible to others. As Donald

Davidson has shown, we understand other people only to the extent that we can see

something of the nature of our own minds at work in them.26 Only when an interpreter

realizes that another individual is largely rational can he ascribe any thoughts at all to that

individual or explain that person’s behavior by reference to the latter’s own purposes and

beliefs.27 The standards that the interpreter applies are invariably his own.28 This makes

interpreting the behavior of others fundamentally risky. However, the interpreter is able to

interpret the behavior of the other individual as meaningful on the whole due to the fact

that both share in the same world and the same way of thinking about the world.29 Even

though the circumstances of our experience and understanding are never completely

congruent, in most cases they correspond enough for sufficiently accurate mutual

understanding.30 This compatibility between reference systems is in turn based on the fact

that they are not individual creations but social products. The weaker this social brace, the

less likely and more laborious it is to understand each other—right up to the borderline

case of pure incomprehension.

The ability to orient oneself in one’s actions towards socially comprehensible

reasons, at least to some extent, is what morality and criminal law mean when they speak

of freedom of will.31 Only those who have free will in this sense therefore can perform actions

in the full meaning of the word.32 In the same way that rationality and irrationality are not

empirical findings but rather normative concepts,33 free will is not a biological fact, but the

product of a cultural attribution process.34 Therefore, the requirements for its existence can

24 Donald Davidson, Subjective, Intersubjective, Objective ch. 13 (2001).

25 Honnefelder, supra note 3, at 16; Stekeler-Weithofer, supra note 22, at 315.

26 Davidson, supra note 16, at 114 et seq.; Davidson, supra note 24, at 89.

27 Davidson, supra note 16, at 97 et seq.

28 Id. at 35 et seq., 50, 69 et seq., 73, 114 et seq., 165 et seq., 182 et seq.; Davidson,supra note 24, at 257, 355-56; Donald Davidson, Truth, Language and History 318 et seq. (2005).

29 Davidson, supra note 24, at 105, 121; John R. Searle, The Construction of Social Reality 187 et seq. (1995); cf. infra text accompanying notes 91-101.

30 Luckmann, supra note 20, at 35.

31 Cf. Gabriel, supra note 5, at 385 et seq.; Michael Pawlik, Das Unrecht des Bürgers 281 et seq. (2012).

32 Robert Brandom, Making It Explicit 244 et seq. (1994).

33 Davidson, supra note 16, at 189.

34 Cf. Christoph Möllers, Die Möglichkeit der Normen 371 et seq. (2015).


be classified according to the respective practical context.35 An act that is deemed unfree

because of the minor age of the actor according to criminal law standards, and therefore

considered as mere nature, may already be regarded according to pedagogical understanding

as a considerable expression of personality, and therefore as an action. However, the

consequences of the attribution of free will are structurally identical, and they are far-reaching:

only in the case of people whose world interpretation and motivation schemes are

compatible with those of their social environment to the minimum degree required, do

morality and criminal law run the risk of guaranteeing them freedom of action and of only

reactively holding them responsible for infringements.36 In contrast, all other persons are

subject to a more or less extensive external administration from the outset.

Since Wittgenstein’s late philosophy, it has become a philosophical truism that

speaking has to be considered as action and that language theory must therefore be

understood as part of the theory of action;37 I will come back to that later.38 The range of

this finding has since been steadily expanded; you only need compare the conventional

understanding of speech in the speech act theory of Austin and Searle39 with the theory

recently developed by Charles Taylor, that all forms of human self-expression—also the

non-verbal ones—represent language.40 I would like to go a step further and say that each

action represents a communicative event. Whoever acts, communicates. He undertakes a

self-determination in the public space, something that he might have to account for.41 As

the epitome of the “practical reason of the Species,”42 the ensemble of those institutionally

manifold social practices, in which reasons are given and demanded, forms that

35 Nida-Rümelin, Rationalität, supra note 5, at 141 et seq.

36 Klaus Ferdinand Gärditz, Staat und Strafrechtspflege 34 et seq. (2015); Günther Jakobs, Das Schuldprinzip 34 et seq. (1993); Günther Jakobs, Strafrechtliche Schuld als gesellschaftliche Konstruktion, in Von der Neuroethik zum Neurorecht 243, 259 et seq. (Stephan Schleim et al. eds., 2009); Günther Jakobs, Individuum und Person, 117 Zeitschrift für die gesamte Strafrechtswissenschaft 247, 261 et seq. (2005); Pawlik, supra note 31, at 282 et seq.

37 Cf. Wittgenstein, supra note 15, at § 23, at 11 et seq. [= 1 Werksausgabe at 250 (1984)]. For legal methodology this insight was utilized above all by Friedrich Müller and his school. See, e.g., 1 Friedrich Müller & Ralph Christensen, Juristische Methodik 223 et seq. (11th ed. 2013); Friedrich Müller et al., Rechtstext und Textarbeit 25 et seq. (1997); Friedrich Müller, Syntagma 54 (2012).

38 See infra text accompanying notes 290-304.

39 John L. Austin, How to Do Things with Words 5 et seq., 12 et seq. (1962); John R. Searle, Speech Acts 12 et seq., 16 et seq. (1969).


41 Also Günther Jakobs, Der strafrechtliche Handlungsbegriff 27 (1992) [hereinafter Handlungsbegriff]; Günther Jakobs, Welzels Bedeutung für die heutige Strafrechtswissenschaft, in Lebendiges und Totes in der Verbrechenslehre Hans Welzels 257, 263 (Wolfgang Frisch et al. eds., 2015); Nida-Rümelin, Rationalität, supra note 5, at 13, 77, 151; Nida-Rümelin, Philosophie, supra note 5, at 105, 133, 153. In the older literature, see also Max Weber, The “Objectivity” of Knowledge in the Social and Policy Sciences, in The Essential Weber 359, 380 (Sam Whimster ed., 2004); Arnold Gehlen, Man 24 (Clare McMillan & Karl Pillemer trans., 1988).

42 Christian Reinhold Köstlin, Neue Revision der Grundbegriffe des Criminalrechts 23 (1845).


independent and dynamic social space that Hegel calls “objective spirit.”43

B. Omnis determinatio est negatio

So far, I have largely relied on the intuitive plausibility of my comments on the

concept of action. Now I would like to try to anchor it in a comprehensive philosophical

system. For this purpose, however, I must descend deep into the very shafts of modern

ontology: right down to Spinoza’s formulation that all determination is a negation—omnis

determinatio est negatio.

Hegel, who praises this statement as a “great proposition,”44 explains it as follows:

“The determinate is finite; now, it can be shown of everything, even of thought, . . . that it

is something determinate, that is, it includes negation; its essence is based on negation.”45

This sentence, which appears difficult at first glance, is based on a simple thought. It

expresses the sense in which everything (not just conceptual content, but also facts and

qualities) can be something determinate—namely, by clearly distinguishing itself from

another such determinate thing and therefore excluding it.46 In doing so, Hegel dissolves

the concept of negation from its conventional restriction to statements and transforms it

into an ontological principle.47 That a thought has a definite content and that the world is

arranged in a certain way, therefore, is something we can understand only from the question

of what options they exclude;48 everything that exists is therefore “only to be understood

as reality and negation in one.”49

Hegel’s understanding of concrete negation implies not merely a holistic

epistemology50 but, beyond this, a holistic ontology.51 No object—with this word being

understood in the broadest sense—is, of itself, that which it is. Determinacy is rather a

43 Robert Brandom, Reason in Philosophy 72 (2009) [hereinafter Reason]; Robert Brandom, Tales of the Mighty Dead 227-28 (2002) [hereinafter Tales]; Terry Pinkard, Innen, Außen und Lebensformen: Hegel und Wittgenstein, in Hegels Erbe 254, 276 et seq. (Christoph Halbig et al. eds., 2004); Robert B. Pippin, Idealism as Modernism 393 (1997); Robert B. Pippin, Hegel on the Political Significance of Collective Self-Deceit, in Philosophy and the Historical Perspective 171, 173-74 (Marcel van Ackeren & Lee Klein eds., 2017); Seel, supra note 22, at 15 et seq.; Stekeler-Weithofer, supra note 22, at 28 et seq., 62 et seq.; Pirmin Stekeler-Weithofer, Eine Kritik juridischer Vernunft 11 et seq., 38 (2014).

44 20 G.W.F. Hegel, Vorlesungen über die Geschichte der Philosophie III, in Werke in zwanzig Bänden 164 (Eva Moldenhauer & Karl Markus Michel eds., 1986).

45 Id.

46 Robert Brandom, Wiedererinnerter Idealismus 181 (2015); Taylor, supra note 5, at 17-18.

47 Based on Dieter Henrich, Bemerkungen zum Anfang von Hegels Logik, in Seminar: Dialektik in der Philosophie Hegels 213, 214 et seq. (Rolf-Peter Horstmann ed., 1978).

48 Brandom, Tales, supra note 43, at 193.

49 Henrich, supra note 47, at 215.

50 E.g., Davidson, supra note 16, at 14 et seq., 89-90, 137, 183 et seq.; Donald Davidson, Inquiries into Truth and Interpretation 156 et seq. (2001); Davidson, supra note 24, at 96, 123 et seq.; Taylor, supra note 3, at 38-39.

51 For more detail, see Martin Seel, Sich bestimmen lassen 89 et seq. (2002); Gabriel, supra note 5, at 75.


relational concept, which regards the relation of this concrete object to other objects.52 Thus

the determinate being which Hegel calls “existence” [Dasein] is the necessary negation or

further determination of mere indeterminacy, of “being” [Sein]; and the determinate being

in turn is determined by the special kind of negation that Hegel calls “otherness”

[Anderssein].53

According to Hegel, an act of negation is also constitutive of human judgments and

acts of will. However, they differ from mindless existence in that the rupture with an

indiscriminate state of just existing [So-Sein] does not just take place within them, but

assumes the more complex structure of a negative self-reference.54 While, according to an

example by Hegel, stones or metal cannot transcend their restriction, “for the simple reason

that the restriction is not a restriction for them,”55 man sees himself as the one who sets this

restriction. Through his conceptual activity he determines what belongs together and what

is to be kept apart56 and which of the optional actions he proposes to take.57 Therefore,

according to Hegel’s view, action-determining volition is not an aliud to thinking, but a

special way of doing it: “thinking translating itself into existence [Dasein], thinking as the

drive to give itself existence.”58 Man not only endures his life, but he also directs it. This, of

course, has the consequence that what is fate for the stone is, for him, the product of a

decision to be made by him, for which he is responsible.

Even the most basic judgment (“There is a red book on the table”) is not just forced

on the person who makes it as a result of a perceptual episode. In the words of Robert

Pippin, who is one of the most important American New Hegelians, by making a judgment

of this type, I negate rather “the mere immediacy or givenness of the perceptual content,

negate it as immediate and putatively given, and take up a position of sorts about what is

there.”59 The distance from the incoming inclinations and desires, which, as we have seen,

is constitutive of the concept of action,60 also proves to be a case of negation in Hegelian

categories.61 By reflecting on its impulses, the will “places itself as a simple subjectivity of

thought above their diversified content”62 and thus denies a life consisting of unrestrained

52 Robert B. Pippin, Die Aktualität des deutschen Idealismus 208 (2016).

53 Id. at 197 et seq.

54 Britta Caspers, “Schuld” im Kontext der Handlungslehre Hegels 79 et seq. (2012).

55 G.W.F. Hegel, The Science of Logic 106 (George Di Giovanni ed., trans., 2010) [= 5 Werke 145 (1986)].

56 Robert B. Pippin, On Hegel’s Claim that Self-Consciousness Is “Desire Itself,” in Recognition and Social Ontology 53, 62-64 (Heikki Ikäheimo & Arto Laitinen ed., 2011).

57 Caspers, supra note 54, at 75 et seq.

58 G.W.F. Hegel, Elements of the Philosophy of Right 35 (H.B. Nisbet trans., 1991) [= 7 Werke § 4Z, at 47 (1986)].

59 Pippin, supra note 4, at 9.

60 Supra text accompanying notes 3-6.


62 G.W.F. Hegel, The Encyclopedia of the Philosophical Sciences 98 (William Wallace trans., 1894) [= 10


impulsiveness in favor of a deliberate way of life. “In so far as I am practically active, i.e.,

in so far as I act, I determine myself, and to determine myself means precisely to posit a

difference”63—the difference between the possibility I choose to realize, and the others,

whose pursuit I thereby exclude.64 “Wanting is choosing.”65 As an act of self-determination,

every judgment and action is therefore also an act of self-limitation.66 However, this self-

determination is accomplished by the individual in the (at least implicit) knowledge that

other possibilities have been open to him; therefore, the ability to consciously reject

alternatives is an essential condition of the freedom to judge and act.67

In the history of philosophical action theory and even more so in criminal law action

theory, the negative side of the will has usually been ignored, or at least underestimated.68

However, action is described incompletely as long as it is characterized merely as “human

purposeful activity,” which, in turn, is understood as the accomplishment of a previously

set purpose.69 Rather, action decisions are no different from all other objects: they receive

their specific contours not only by that which the agent positively realizes, but also by that

which he excludes. Only a view which also includes the alternatives that have not been

realized leads to a full understanding of what a decision to act means, and how the self-

determination made by the agent is to be interpreted and assessed.

However, the practical power of Hegel’s argumentative basic figure of the concrete

negation is not exhausted with the insight that in his voluntary decision, the agent negates the

direct attention of his instinctual impulses. It comes into play again in Hegel’s analysis of

the implementation of this decision. As self-realization, action is, at the same time, “self-

negation,” according to Hegel’s conviction:70 By setting about expressing his intention in a

public and publicly contestable act, the agent forfeits his claim to sole power over the nature

and significance of this act;71 his subjective purposes, on the contrary, change to a “being

for another” at the moment of their active execution.72 It is true that the individual agent

may insist on his interpretation of the situation for his private use—although he must, of

course, also clothe this, at the latest as soon as he makes it known to the outside, in a

Werke § 476, at 299 (1986)].

63 Hegel, supra note 58, at 36 [= 7 Werke § 4Z, at 47 (1986)].

64 Jürgen Rödig, Die Denkform der Alternative in der Jurisprudenz 95 et seq. (1969); Stekeler-Weithofer, supra note 43, at 38 et seq.

65 Rödig, supra note 64, at 97.

66 Seel, supra note 51, at 216.

67 Id. at 270; Borsche, supra note 5, at 244 et seq.; Möllers, supra note 34, at 144.


69 Hans Welzel, Abhandlungen zum Strafrecht und zur Rechtsphilosophie 129 (1975).

70 Robert B. Pippin, The “Logic of Experience” as “Absolute Knowledge,” in Hegel’s Phenomenology of Spirit: A Critical Guide 210, 221 (Dean Moyar & Michael Quante eds., 2010).

71 Id.; Caspers, supra note 54, at 220 et seq.

72 Caspers, supra note 54, at 228.


reasoning language understandable to third parties.73 However, he cannot demand that this

interpretation be recognized as authoritative outside the inner citadel of his individual self-

image.74

The view that the relevant meaning of an action in criminal law is based primarily

on the intention formed by the agent ex ante—probably Welzel’s most important legacy for

current German criminal law scholarship—is therefore incorrect, because the “self-

alienation of the subjective will in the objectivity of one’s actions,”75 recognized by Hegel,

is ignored by it.76 According to Hegel, action theory is not based on subjective finality, but—

to express it in a pair of concepts by the Bochum philosopher Britta Caspers—on objective

finality, objective intention.77 The meaning of the act can therefore not be determined by a

kind of introspection or a “sincerity test”78 but must be negotiated within the specific social

community within which it was committed.79

The latter touches on one last central facet of Hegel’s concept of action. As a

rational mind80—and a deliberate agent, as Hegel sees it, is a rational mind—the individual

connects a specific claim of appropriateness and thus universality with the self-

determination he undertakes.81 A cognitive judgment should provide information about the

truth of the referenced object: “It’s correct that this book has a red and not a green cover

and that it’s on the table and not on the shelf.” A voluntary decision answers the question

of how to correctly handle the situation in question from the point of view of the agent: “It

is an appropriate response to high summer temperatures, to go to the pool and not to the

lecture.” Accordingly, Hegel stresses that an act always implies reference to general norms

of adequacy,82 which, as such, are subject to interpretation and judgment by other subjects.83

“By acting now, I bring about a change in existence [Dasein], in the element of objectivity.

This element is now the prevailing will in general, and this will is pronounced by law. So

my action always has a relationship to law.”84

According to Hegel’s understanding, action is therefore a legally relevant


74 Luckmann, supra note 20, at 38 et seq.

75 Caspers, supra note 54, at 113.

76 See also Jakobs, Handlungsbegriff, supra note 41, at 27 et seq.

77 Caspers, supra note 54, at 18 et seq., 440.


79 Pippin, supra note 78, at 311; Günther Jakobs, Norm, Person, Gesellschaft 95-96, 112 et seq. (3d ed. 2008).


81 Cf. Borsche, supra note 5, at 248; Seel, supra note 51, at 49.

82 3 G.W.F. Hegel, Vorlesungen über Rechtsphilosophie 1818-1831, at 344 (Karl-Heinz Ilting ed., 1974) [hereinafter Vorlesungen]; G.W.F. Hegel, Die Philosophie des Rechts 104 et seq. (Hansgeorg Hoppe ed., 2005) [hereinafter Rechtsphilosophie].

83 Caspers, supra note 54, at 113, 181 et seq., 276, 441.

84 G.W.F. Hegel, Philosophie des Rechts 106 et seq. (Dieter Henrich ed., 1983).


“expression of purpose”85 because and insofar as it represents, from the perspective of

other subjects, a manifest statement about whether the law is worth complying with that can

be attributed to the agent as a subject. More generally, through the objective finality of his

actions, the agent expresses how he assesses the relative value of the possible behavioral

possibilities. In view of a state of the world that can be continued in different directions,

the agent proclaims: “This continuation variant deserves to be prioritized over that one.”

Thus, Goethe and Beethoven know all too well when deciding on their own and the

appraisal of each other’s action that this is not a meeting of a lummox and a sophisticate,

but that two different concepts of society are colliding with each other. Beethoven offers

the traditional social hierarchy an alternative pyramid of honor, headed not by the

aristocracy but by the brilliant artist. Goethe must take a stand on this appraisal, and he

does so: By placing himself with particular emphasis on the side of the existing order, he

rejects the revolutionary aspirations of Beethoven incidentally, but in a literally conspicuous

manner.86

C. The Plurality of Action Descriptions

Being [Sein] is always definite being.87 Nonspecific (“pure”) being is, according to

Hegel, indistinguishable from and even identical to (“pure”) nothingness.88 For this reason,

every object can exist only under a certain description, according to the terminology of the

Bonn philosopher Markus Gabriel: in a certain field of meaning.89 Outside of the relevant

field of meaning, it is absolutely non-existent as this concrete object.90 The determination in

question can be made only by beings capable of discrimination—individuals who can give

opinions of the form “A is a case of B.” The fact that we are able to refer to certain objects

is therefore due to a determination that we have carried out.

However, it does not follow from the dependence of the concept of reality on our

speech that reality as such—the world—also depends on our speech.91 As the Frankfurt

philosopher Martin Seel has recalled, the concept of reality is not bound to its determinateness,

but merely to its determinability as reality. “To be real means to be determinable without being

85 This expression was introduced into the terminology of criminal law by Welzel, supra note 69, at 130. It has attained its present prominence through Jakobs. See, e.g., Jakobs, Handlungsbegriff, supra note 41, at 26 et seq.; Günther Jakobs, Strafrechtliche Zurechnung und die Bedingungen der Normgeltung, in Verantwortung in Recht und Moral 57, 63 (Ulfrid Neumann & Lorenz Schulz eds., 2000) [hereinafter Zurechnung]. Jakobs’s understanding of the concept was adopted by Caspers, supra note 54, at 181, 250.

86 Incidentally, after that he does not mention Beethoven for years. Rolland, supra note 1, at 56.


88 Hegel, supra note 55, at 59 [= 5 Werke 83 (1986)].

89 Gabriel, supra note 5, at 39, 163 et seq., 174, 224 et seq., 249.

90 Id. at 173, 303, 369.

91 Searle, supra note 29, at 158 et seq.; Seel, supra note 51, at 106 et seq.; Gabriel, supra note 5, at 174 et seq., 183; Müller, supra note 37, at 30 et seq.; Müller & Christensen, supra note 37, at 248.


determined—without being bound by our determinations alone.”92 If the fields of meaning

on which our interpretations are based are to be more than mere fantasies, we may therefore

not construct them at will. Rather, fields of meaning must be staked out in such a way that

objects, which are relevant to us—in whatever respect—appear within them. To do this,

they must take account of the resistance of reality as such, which we feel at every step, and

often painfully enough, whether we comprehend it or not.93 Far more than being creators

of the world, we are “world disclosers.”94 As formulated so aptly by the Bochum

philosopher Richard Schaeffler, our knowledge is a “responsive shaping”95 and the

interpretations of the world that we produce are “coproductions” between us and the

world.96 However, we can never look at, or even discursively grasp, this world—reality as

such—in its entirety, but only in its individual aspects—and thus by excluding other aspects;97

Gadamer calls this the “linguistic shadings” that the world as such experiences in the

different language worlds.98 The world is always richer than the way we talk about it.99 This

position can be designated, with Seel100 as a moderate realism, with Dreyfus and Taylor101 as

a pluralistic realism or, which I would prefer, as a reflected realism.

All of this also holds true for the subject of our discursive practices, which we refer

to as action. As communicative, meaningful statements in public space, actions as well as

linguistic utterances can be questioned for their rightness—understood broadly, as the

correctness of the approach to a situation—and then approved or criticized.102 In this

respect, action represents participation in a common form of practice “which always already

contains the practice of normative assessment of the correctness of participation.”103 This

assessment is based on assessment models that are socially available in large numbers.104

One and the same act may then turn out to be a master shot, a long overdue measure to


93 Müller & Christensen, supra note 37, at 248.

94 Dreyfus & Taylor, supra note 6, at 162.

95 Richard Schaeffler, Erkennen als antwortendes Gestalten (2014).

96 Dreyfus & Taylor, supra note 6, at 93; see also Müller & Christensen, supra note 37, at 248 et seq.

97 Dreyfus & Taylor, supra note 6, at 159 et seq.; Stanley Fish, Almost Pragmatism: The Jurisprudence of Richard Posner, Richard Rorty, and Ronald Dworkin, in There’s No Such Thing as Free Speech 223 (1994); Gabriel, supra note 5, at 251, 282, 438; Searle, supra note 29, at 169 et seq.

98 Hans-Georg Gadamer, Truth and Method 445 et seq. (Joel Weinsheimer & Donald G. Marshall trans., 2d ed. 2004).

99 Seel, supra note 51, at 106 et seq., 164 et seq.; Seel, supra note 22, at 73 et seq.

100 Seel, supra note 51, at 119, 133.



103 Stekeler-Weithofer, supra note 22, at 144.

104 Cf. Raymond Geuss, Kritik der politischen Philosophie 59 (2011); Möllers, supra note 34, at 33; Seel, supra note 51, at 51.


restore the disgraced family honor and a murder. However, the underlying assessment

models do not just decide, not even primarily, on the “correctness” of the relevant act.

Since an action is a meaningful statement, but this meaning is based on the particular

assessment model used, an opaque event can only be described as an action relative to that

system.105

Even the ontological individuation principle of actions—their meaning—is

therefore their appearance in a certain field of meaning. In their general ontological status,

actions do not differ in this respect from atomic compounds or DNA structures. However,

a field of meaning that is adequate for action must be designed in such a way that it allows

for the description of the observed events as a statement on the value of competing

behavioral possibilities; it must therefore be normatively constituted. Naturalistic patterns of

meaning therefore disregard the specific meaning of actions as communicative statements.

In this respect, it isn’t wrong to describe a state of affairs such as the firing of a shot at a

rival as body movement or as a result of nerve innervation; however, such a description is

misplaced when it comes to understanding the social phenomenon “action.” Just like the

requirement of free will106 for action, the specific meaning of an action is also a

phenomenon that cannot be reduced to mere nature, but is a genuinely cultural

phenomenon.107

Since there is a multitude of cultural fields of meaning, some of which partly coexist

peacefully, but partly also compete with each other, as in my example of honor killing, there

is not one single meaning—the meaning—of action, but several of them.108 There are as

many different descriptions of actions and—since individual actions do not exist beyond

their descriptions—there are as many different actions as there are meaning attributions

that can be made. The action described as a master shot is therefore another act than that

described as murder—a finding which is confirmed by the fact that different bundles of

information must be drawn on to substantiate the above-mentioned descriptions.

The contrast between ontologism and normativism that has been much vaunted in

the German discussion of criminal law in recent decades109 collapses in light of the idea

developed here. This characterization of the conflict was understandable as long as criminal

normativism had to assert itself against a manifestation of ontological thinking—referred

to as finalism [Finalismus]—that was both methodologically and substantively worthy of

criticism.110 By contrast, the ontology described in this text, of fields of meaning that are

105 See also Müller & Christensen, supra note 37, at 192 et seq.

106 See supra text accompanying notes 31-36.

107 See also, in effect, Günther Jakobs Handlungsbegriff, System der strafrechtlichen Zurechnung 20 (2012); Möllers, supra note 34, at 32 et seq.

108 Davidson, supra note 24, at 126 et seq.; Dreyfus & Taylor, supra note 6, at 81; Jakobs, supra note 79, at 50.

109 See generally Günther Jakobs, Strafrecht Allgemeiner Teil, at vii (2d ed. 1991) (reprinting Jakobs’s preface to the first edition of his textbook).

110 I undertake a summary appraisal of Hans Welzel, the founder of finalism [Finalismus], in Michael Pawlik,


adequate for action description, takes into account the central concern of normativism—

the recognition of the genuinely social character of the categories of criminal attribution.111

At the same time, however, it averts the danger of an ontologically insensitive

constructivism. That danger lies in finding no way out of the labyrinth of attributions and,

therefore, either losing oneself in self-references or having to establish the connection to

reality out of the blue, with insufficient theoretical assurance. The basic conviction of the

concept presented here is therefore: Criminal law scholarship doesn’t work without

ontology; but it must be an ontology that has absorbed the central insights of Hegel and his

newer interpreters, not one that (like finalism) lags behind them.

D. The Concept of Action in Philosophy and in Criminal Law Scholarship

It goes without saying that the relevant assessment model for criminal law

scholarship is the Criminal Code. Carrying out an act in the sense of criminal law therefore

means taking a position on the obligation arising from the relevant criminal law norm.

Generally speaking, the position is one of approval or rejection of the norm.112 From the

point of view of current German criminal law scholarship, however, such a demanding

concept of action seems to be admittedly strange, as most scholars have become

accustomed to understanding an action as nothing more than an activity somehow

influenced or susceptible to being influenced by the natural will.113 Like all conceptual

definitions, this understanding of action also has a history, and one that casts doubt on

whether it has the final say on what counts as knowledge in criminal law scholarship.

Action, as the term is understood here, essentially corresponds to the understanding

that dominated German criminal law thinking up to the last decades of the nineteenth

century.114 Then it fell victim to a profound methodological and substantive reorientation

of general criminal law theory. In his influential postdoctoral thesis from 1904, Gustav

Radbruch complained that a demanding concept of action had no analytical value.115

According to Radbruch, the task of a “systematic classification” of the characteristics of the

crime can only be dealt with by subordinating “a number of other concepts” to a concept

Einleitung: Welzel—Ein Klassiker?, in Lebendiges und Totes in der Verbrechenslehre Hans Welzels 1 (Wolfgang Frisch et al. eds., 2015).

111 Cf. Jakobs, supra note 109, at VII.

112 See generally Jakobs, Handlungsbegriff, supra note 41, at 27 et seq., 41 et seq.

113 E.g., Jörg Eisele, Vorbemerkungen zu den §§ 13 ff., marg. note 37 et seq., in Adolf Schönke & Horst Schröder, Strafgesetzbuch (29th ed. 2014); Helmut Frister, Strafrecht Allgemeiner Teil 96 et seq. (7th ed. 2015); Kristian Kühl, Strafrecht Allgemeiner Teil § 2 marg. note 1 et seq. (7th ed. 2012); Johannes Wessels et al., Strafrecht Allgemeiner Teil marg. note 93 (43rd ed. 2013).

114 See also Eckhart von Bubnoff, Die Entwicklung des strafrechtlichen Handlungsbegriffes von Feuerbach bis Liszt mit besonderer Berücksichtigung der Hegelschule 36 et seq., 52 et seq. (1966); Caspers, supra note 54, at 400 et seq.; Pawlik, supra note 31, at 288 et seq.

115 Gustav Radbruch, Der Handlungsbegriff in seiner Bedeutung für das Strafrechtssystem 88 (1904).


“as its types and subtypes by a series of divisive subsuming judgments.”116 The inevitable

consequence of such an approach is that the concepts concerned lose more and more of

their content. In the words of the German philosopher Ernst Cassirer, “the conceptual

pyramid, which we form in this way, reaches its summit in the abstract representation of

‘something’ under the all-inclusive being of which every possible intellectual content falls,

but which at the same time is totally devoid of specific meaning.”117 For Radbruch, this

“something” is the concept of action. It represents the highest genus of criminal law theory,

the noun, of which all other criminal characteristics—actus reus, illegality and guilt—are

only attributes,118 but at the same time it is, for that very reason, the most colorless of all

criminal concepts. Therefore, according to Radbruch’s view, nothing more can be said

about action, other than that it is a volitional body movement with arbitrary content.119 The

method of concept formation and the naturalistic conceptual content are mutually

supportive, in that sense, for Radbruch.

The method of abstracting concept formation used by Radbruch, however, is quite

limited in its effectiveness and reasoning power. The process of abstraction is based on a

covert petitio principii. Abstracting, that is, ignoring existing differences and extracting

common features from a range of manifold objects, is something that can only be done by

those who have already recognized and acknowledged these commonalities as relevant,

before they undertake the act of abstraction—those who truly already possess the concept

they are seeking. Cassirer rightly stressed just six years after the publication of Radbruch’s

writing: “We do not isolate any abstract part whatever from the manifold before us, but we

create for its members a definite relation by thinking of them as bound together by an

inclusive law.”120 Abstraction would be directionless and rudderless if it did not tacitly

connect the elements from which it discerns the concept through a certain relationship and

mentally sort them by virtue of that.121 “[T]he concept, however, is not deduced thereby,

but presupposed: for when we ascribe to a manifold an order and connection of elements,

we have already presupposed the concept, if not in this complete form, yet in its

fundamental function.122 In the words of the influential nineteenth-century logician

Christoph Sigwart, who is, incidentally, one of Radbruch’s most important reference

authors, “Thus any attempt to form a concept by abstraction is tantamount to looking for

the spectacles which are on your nose, with the help of these same spectacles.”123

116 Id. at 9.

117 Ernst Cassirer, Substance and Function 6 (William Curtis Swabey & Marie Collins Swabey trans., 1923) [= 6 Gesammelte Werke 4 (2000)].

118 Radbruch, supra note 115, at 71.


120 Cassirer supra note 117, at 20 [= 6 Gesammelte Werke 19 (2000)].

121 Id. at 24 [= 6 Gesammelte Werke 23 (2000)].

122 Id. at 17 [= 6 Gesammelte Werke 16 (2000)].

123 Ernst Cassirer, The Philosophy of Symbolic Forms, Volume 1: Language 279 (Ralph Manheim trans.,


Radbruch’s approach confirms this analysis. Radbruch can only abstract as much as

he does because he is assuming from the outset—and, as I have shown earlier,124 wrongly—

that the concept of action is to be understood as something naturalistic and thus extremely

low in content. However, if Radbruch had started his reasoning with the traditional

assumption that an action was something qualitatively different from a natural event, the

path of abstraction he embarked upon wouldn’t have been open to him. The process of

abstraction, as practiced by Radbruch, can therefore only arrange a tacitly presupposed

content of crime into an appropriate sequence that enables it to be examined. The

abstracting method is constitutionally incompetent at answering the question of why

precisely these elements make up the concept of crime in this arrangement. What it can’t

conceive of, then, is the unity, the identity of its object, as it is always one step too late for

that.125 This is why it fails exactly at the task which a philosophically reflected understanding

of criminal law should by no means renounce.

Cassirer contrasts the method of abstraction with a model of conceptualization, in

which the goal of conceptualization, instead of being more generalized, is increasingly

determinative.126 Mental work doesn’t consist in arranging one type of content under another,

but in experiencing a methodologically guided further particularization of a concrete but

undifferentiated whole.127 In this way, the methodological strategy of Hegelianism—

substantive development of the concept, not abstraction acrobatics—is philosophically

rehabilitated in the very moment in which it is cast aside as definitively overcome within

the field of criminal law scholarship. This is an example of the simultaneity of the non-

simultaneous, which doesn’t speak in favor of penologists.

As it is, I am not satisfied with the mere reference to the fact that the recent

development of German teachings on crime and, in particular, the doctrine of action,

emanated from a method of conceptualization which was philosophically obsolete at the

time of its first emergence. It should also be noted that today’s dogmatics does not ignore

the factors—namely, unsoundness of mind, external force and error—that preclude the

existence of an action according to nineteenth-century criminal law theory, but rather only

shifts them to subsequent stages of the examination structure. In the final analysis, the

prerequisites for attribution that are regarded as decisive today are therefore no less

substantial than those of the nineteenth century Hegelians Reinhold Köstlin or Hugo

Hälschner. In this respect, even according to current understanding, the offender who acts

unlawfully and culpably takes a position on the obligation imposed on him. Therefore, the

subsequent considerations in regard to criminal law theory are, as I hope, persuasive not

just to those who agree with the plea made in this text for a return to an inclusive concept

1955) [= 11 Gesammelte Werke 250 et seq. (2002)].


125 Pawlik, supra note 31, at 152 et seq. with further references.

126 Cassirer, supra note 123, at 280 [= 11 Gesammelte Werke 251 (2002)].

127 Id. at 283 et seq. [= 11 Gesammelte Werke 255 (2002)].


of action but also to those who prefer to split up the diverse moments of the concept of

action into different levels of examination. There is enough space for reason in criminal law

scholarship, even on the basis of today’s prevailing viewpoints.

II. Acting Wrongly

A. Criminal Wrongdoing as a Qualified Statement

According to the above, anyone who takes a position on a criminal obligation imposed on

him is performing an action in the sense of criminal law theory. The act is lawful if readiness

to fulfil this obligation can be inferred from it according to objective social standards. As a

rule, the statement in question will not be as ostentatious as what we saw with Beethoven

and Goethe. Nobody, irritated and tired after a hard day’s work, wandering through a cluster

of people and strolling around tempting department store displays, considers that by not

beating people up or pocketing whatever takes his fancy, he is making a statement on the

criminal norms of assault and theft. Nevertheless, the corresponding interpretation does

not amount to a purely hypothetical attribution completely detached from the agent’s reality

of life. If the individual generally refrains from violently venting his aggression on his fellow

human beings or satisfying his lust for possession by robbery, it is because his lawful

behavior has literally become flesh and blood.128 The legal and social order owes its stability

primarily to this habituation.129 It is thus quite reasonable to interpret their manifestations

as statements in favor of law and order.

In contrast, criminally relevant wrongdoing exists if the agent’s statement turns out to

be negative. More precisely: criminal wrongdoing involves the perpetrator opposing the

prevailing criminal norms and regulations, and showing, through his actions, that he gives

this counter-norm precedence over the norm of the law.130 The expression of power on the

part of the perpetrator, the compulsion exercised by him against an external will, is

understood in this conception as the implementation of a normative program, a program

that can reasonably be interpreted as nothing other than a rebellion against the authoritative

norms that apply to the perpetrator. This normative self-elevation, or rather presumption,

by the perpetrator is the source of the added significance of his action, which justifies

finding him criminally responsible, in addition to his possible obligation of civil

compensation for damages.

However, the interpretation of criminal action as a qualified statement is also

challenged by doubts as to its phenomenological plausibility. It appears to load ordinary

offences with a meaning that they shouldn’t have from the point of view of the perpetrators.

If, for example, a thief is asked about the reasons for his behavior, he would generally

respond that he simply took possession of the item he stole and had no intention of making


129 Pawlik, supra note 31, at 78 with further references.

130 See generally Jakobs, Handlungsbegriff, supra note 41, at 41 et seq.; Jakobs, supra note 85, at 59 et seq.; Jakobs, supra note 107, at 13 et seq.


any kind of statement.

I do not deny the authenticity of this self-interpretation. However, it does not bind

the social environment of the offender.131 Meanings vary depending on the respective

assessment model. The specific perspective of criminal law is not interested in the thief’s

need structure and his individual balance between inclination and aversion, but in his

relationship to the legal system, as expressed by him through his behavior.132 Therefore, the

behavior of the thief, under the perspective of criminal law, appears as a statement between two

behavioral options, one of which is judged lawful by criminal law, while the other, selected

by the thief, is judged as unlawful. Admittedly, the interpretation mentioned must not be

imposed on the perpetrator in the manner of an external dictum, but rather must sufficiently

take his specific situation into account. Therefore, the perpetrator is not taken into account

by the criminal imputation theory as the abstraction of a citizen, but as a concrete individual

with certain abilities, which he doesn’t have to deploy unrestrictedly, but only to a

normatively limited extent, to handle a specific situation in a legally compliant manner.133

Even after this clarification, the reader may have the impression that the

interpretation proposed here unduly dramatizes criminal offenses by using a sledgehammer,

so to speak, to crack a nut. Such a reader could come to terms with the formulation that

the thief decides on a course of action at the expense of another person and that, as a

reasonable, normally socialized citizen, he has to know that it is legally inadmissible. The

discourse about the formation and execution of a counter-norm by the perpetrator, on the

other hand, appears to the reader as a promethic elevation of the perpetrator.134 According

to this interpretation, the criminal has no intention of announcing a new principle but, quite

to the contrary, of breaching a principle, in his own favor, that he otherwise manages to

preserve in regard to others.135 “Of course the offender feuds with the legal institutions

because he is guilty, contrary to the law, but I can find hostility, in principle, towards the

institution of ownership only in a kind of radical socialism, not in theft or fraud” is how

Adolf Wach put it in a nutshell in 1873.136 However, in my opinion, this reservation is not

difficult to overcome.

First of all, it should be remembered that a criminal is accused not of his general

convictions, but of his concrete act. The rejection of the bourgeois order of ownership has

become a firmly established attitude in the anarchist socialist whom Wach has in mind.

Wach’s finding that most criminals do not have this kind of attitude is therefore correct,

but it does not impinge on the concept presented here. Its question is solely what the

normative implications are of the individual concrete action to be appraised.

131 Supra text accompanying notes 70-74; see also Günther Jakobs, Rechtszwang und Personalität 32 (2008).

132 See Jakobs, supra note 107, at 20.

133 For more detail, see Pawlik, supra note 31, at 299 et seq.

134 See, e.g., Heinrich Oppenheimer, The Rationale of Punishment 213 (1913).

135 See, e.g., Ossip K. Flechtheim, Hegels Strafrechtstheorie 102 (2d ed. 1975).

136 Adolf Wach, Die Normen und ihre Uebertretung, 25 Gerichtssaal 432, 453 (1873).


The answer here is based on the insight that something absolutely individual is as

elusive as something absolutely general. Individuum est ineffabile. Just as everyone who judges

addresses something individual—this X—as something general—as a table, dog or

person137—each action contains a general statement about the object of action.138 Even the

thief considered through the lens of criminal law therefore treats his concrete victim as

something general.139 The general status of the human being in law is that of a person.140

Respect for another person is expressed by respect for his rights. Conversely, violating

another person’s legal positions means attacking him as a person. The thief accordingly

expresses his view of his victim as a mere resource that he can tap into at his convenience

to get what he wants. This is precisely the specific offence he inflicts on his victim, and it

can’t be eradicated by a mere compensation payment.141 Generally speaking, a criminal

treats another person—this victim—as a thing, not as a person.142 More accurately: he

ascribes to himself the power to decide when people deserve to be treated as persons and

when they can be treated as things. If one understands norms as positively assessed

possibilities, as the Berlin legal theorist Christoph Möllers does,143 this finding can also be

expressed as the thief being guided by a norm according to which his self-empowerment

means that the occasional treatment of other people as things is regarded as something

positive and therefore permissible for him.

However, the significance of an action only finds its complete expression through

the ensemble of action variants A and non-A.144 Accordingly, by the aforementioned self-

empowerment, at the same time the perpetrator also expresses a negative attitude—based

on Möllers one can also say: he formulates a contradictory norm—with respect to the

provisions of criminal law, which prohibits dealing with other people in this way.145 This

single regulation is an integral part of the entire (criminal) legal system. Refusing to obey it

therefore means violating the law as a whole,146 thus opposing it with a “no” is, technically

speaking, drawing up an opposite norm.


138 Hegel, supra note 84, at 87.

139 Hegel, supra note 58, § 100, at 126 [= 7 Werke § 100, at 190 (1986)].

140 Id. § 35, at 67 [= 7 Werke § 35, at 93 (1986)].

141 Jami L. Anderson, Understanding Punishment as Annulment, in Technology, Morality and Social Policy 215, 216 (Hudson Yeager ed., 1998); Michael Köhler, Der Begriff der Strafe 47 (1986); Anja Schmidt, Strafe und Versöhnung 144 et seq. (2012); Florian Zimmermann, Verdienst und Vergeltung 119, 123 (2012).

142 Hegel, supra note 58, § 95, at 121 et seq. [= 7 Werke § 95, at 182 (1986)]; Hegel, Vorlesungen, supra note 82, at 299 et seq.

143 Möllers, supra note 34, at 125 et seq.


145 Köhler, supra note 141, at 48 et seq.; Igor Primoratz, Banquos Geist 34 et seq. (1986); Schmidt, supra note 141, at 129 et seq.

146 Hegel, Vorlesungen, supra note 82, at 661.


It may seem tempting to respond to this derivation with an ironic remark by the

Colombian aphorist Nicolas Gomez Davila: “Complicating is the highest prerogative of

man.”147 However, the appropriate response is another statement from the same author:

“Whatever is not complicated is wrong.”148 Or more seriously: there is nothing

unnecessarily complicated or even esoteric in the conclusion just outlined. Rather, a

genuinely philosophical concern is being pursued: to expose the deep structures of our

modes of thought and action which, as Hegel says, “instinctively and unconsciously pervade

our spirit everywhere” and therefore “remain non-objectified and unnoticed,”149 thereby

allowing us a better understanding of ourselves and our social practices.

But can a view that interprets criminal wrongdoing as a rejection of the current

normative order seriously claim to construe today’s cultural self-conception? Does it not

ultimately reduce criminal wrongdoing, in spite of all Hegel references, to the understanding

formulated by Binding:150 rebellion, that is, refusal of obedience to the authoritarian will?151

Has it not been hopelessly entangled in the language of the authoritarian state, which may

have been in keeping with the times in Binding’s age, but which falls far short of the

individualistic mood critical of institutions that prevails at present—at least among its

opinion-forming cultural elites?

These assumptions are inaccurate, as I would like to demonstrate below. The

concept referred to here has no reactionary flip side. On the contrary, it sees itself as a

redemption of the demand made by the British legal philosopher Antony Duff to replace

the criminal theories based on the figure of the subject with genuinely civic criminal-law

models.152 Both subjects and citizens are bound by the law, but the nature of their bond

differs, according to Duff. Subjects are subject to a law that is not theirs, and they must

obey an external will. Citizens, on the other hand, are subject to their own law, the law of

the community, which they help to define. In the demands of law, therefore, they are

confronted with the embodiment of their own civic identity.153 These are big propositions.

How do they express themselves in everyday criminal law?

147 Nicolas Gomez Davila, Einsamkeiten 76 (1987).

148 Id. at 25.


150 Cf. 1 Karl Binding, Die Normen und ihre Übertretung 98 (3d ed. 1916). For more on Binding’s theory of wrongdoing and punishment, see Michael Pawlik, Bindings Beitrag zur Straftheorie, in Eine gewaltige Erscheinung des positiven Rechts: Karl Bindings Normen- und Strafrechtstheorie (Michael Kubiciel et al. eds., forthcoming).

151 Most recently in this sense Daniela Demko, Hegels Straftheorie im Lichte gegenwärtiger expressiver Straftheorien, in Hegels Erben? 277, 286 (Michael Kubiciel et al. eds., 2017) with further references.

152 Antony Duff, Punishment and the Morality of Law, in Punishment, Restorative Justice and the Morality of Law 125 (Erik Claes et al. eds., 2005).

153 Antony Duff, Punishment, Communication, and Community 56 et seq., 80 et seq. (2001).


B. Criminal Wrongdoing as a Violation of the Obligation to Cooperate

It is a well-known fact that the basic attitude of the philosopher is that of wonder.

According to a comment by the essayist Henning Ritter, the philosopher differs from other

people in that he cannot ignore certain things.154 Something that his fellow citizens take for

granted perplexes him and thus becomes a problem that needs an explanation. What does

a legal philosopher wonder about? He understands that the organizational form of

normativity entails considerable risks.155 Because norms start with the designation of

alternatives—fulfilment of the norm versus violation of the norm156—they rob their object

of necessity and emphasize their own vulnerability.157 Therefore, from the point of view of

a legal philosopher considering it, the fact that this form of normativity has proven to be

successful, despite its susceptibility to being breached, is first and foremost astonishing and

needs to be explained. How can it be, asks the legal philosopher, that the taming of power

by law isn’t just a subject of literary essays and fine proclamations, but can assert itself—

however imperfectly—in social reality? The philosophy of law that arises from such

wondering deals, in Hegelian terminology, not only with the concept, but with the idea of law:

“Liberty, shaped into the actuality of a world.”158 The legal philosopher can therefore not

be content with making statements about what the law should look like; he also has to deal

with how the law acquires and maintains its real power.

Kant was still convinced that the maintenance of the legal system can be

accomplished exclusively by a network of state authorities, which neutralizes the selfish

inclinations of men; it does not depend on an accommodating motivational structure of the

citizens. “The problem of the formation of the state, hard as it may sound, is not insoluble,

even for a race of devils, granted that they have intelligence.”159 As the British criminologist

David Garland points out, this view became at times almost the credo of “high

modernism.”160 It is, however, inaccurate. Since the authorities in a race of devils can only

resort to the motivating force of coercive threats, the conditio sine qua non for maintaining

legal justice is the existence of a powerful and widespread coercive apparatus. However, it

can only be established at an extremely high price: it consists in installing a comprehensive

surveillance system. Fichte has explicitly drawn this conclusion: asked to design a legal

system that is independent of the morality of its citizens, he recommends a state in which

“the police know fairly well where each one is at every hour of the day, and what he is

154 Henning Ritter, Notizhefte 326 (2010).

155 Nida-Rümelin, Philosophie, supra note 5, at 123, 138 et seq.

156 Möllers, supra note 34, at 368.

157 Id. at 153.


159 Immanuel Kant, Perpetual Peace 153 et seq. (Mary Campbell Smith trans., 1903) [= 8 Akademieausgabe 366 (1923)]; see Michael Pawlik, Kants Volk von Teufeln und sein Staat, 14 Jahrbuch für Recht und Ethik 269, 269 et seq. (2006).

160 David Garland, The Culture of Control: Crime and Social Order in Contemporary Society 34 (2001).


doing.”161 However, this would not only destroy the freedom of citizens, but also hugely

overwhelm the organizational capacities of the state; it would literally choke on its hunger

for surveillance.162

The costs of enforcing a legal system can therefore only be kept in an acceptable

framework with regard to freedom if law-abiding behavior is largely self-evident for the

legal subjects. The withdrawal of external disciplinary bodies must therefore be

compensated by sufficiently reliable self-discipline on the part of all involved. Therefore, a

free state can exist only because and insofar as, on the whole, its citizens subordinate

themselves to the law in free obedience and unlawful acts remain isolated phenomena;163

therein lies the core of their responsibility as contributors to the existing legal status.164

As Hegel points out, the principle of division of labor does admittedly prevail in

modern states,165 which entails a significant restriction of the legal responsibilities of its

citizens. They only have to justify themselves before the law and thereby gain the subjective

independence by which, according to Hegel, modern man is distinguished from the Greek

heroes.166 Therefore, in the words of Hegel, the “closer state” does not directly “demand

the sentiment itself, but rather just the achievement.”167 It is therefore up to the individual

citizen to decide from what motivational sources he draws his compliance with the law.

However, the citizen bears responsibility for the externally correct fulfilment of the

concrete tasks of his legal roles.168 Hegel refers to the successful accomplishment of this “in

the normal conditions and circumstances of life” as patriotism.169 Criminal law, as

understood here, requires nothing more than this standard fulfilment of patriotism.

Therefore, compliance with the law by the citizens is equal to other forms of legal

action170 and thus not only do legislation and jurisprudence have a representative character

but, as the Berlin philosopher Volker Gerhardt emphasizes in a proper Hegelian manner,

so does everyday legal compliance. “The law represents the behavioral expectations of an

institutional community, the judge represents the law, and the legally acting citizen

161 Johann Gottlieb Fichte, Foundations of Natural Right 262 (Michael Baur trans., 2000) [= 3 Werke 302 (1971)].

162 See also Jakobs, supra note 79, at 78 et seq.; Jakobs, supra note 131, at 39.

163 This is exemplified by three statements based on very different basic philosophical convictions: Duff, supra note 153, at 68; Müller & Christensen, supra note 37, at 45; Searle, supra note 29, at 90 et seq.

164 Duff, supra note 153, at 47 et seq.; Michael Köhler, Recht und Gerechtigkeit 307 et seq. (2017); Pawlik, supra note 31, at 105 et seq.

165 1 G.W.F. Hegel, Aesthetics: Lectures on Fine Art 183 et seq. (T.M. Knox trans., 1st ed. 1975) [= 13 Werke, at 241 (1986)].

166 Caspers, supra note 54, at 41, 191.



169 Hegel, supra note 58, § 268, at 289 [= 7 Werke § 268A, at 413 (1986)].

170 Müller & Christensen, supra note 37, at 45, 302.


exemplifies the validity of the laws.”171

The concept of validity with which Gerhardt operates here corresponds to that of

the Hegelian criminal law thinkers of the nineteenth century. One of the most important

of these authors, Hugo Hälschner, makes a careful distinction between the validity

[Gültigkeit] of a norm and its efficacy [Geltung]. While the validity of a rule of law is unassailable

and inviolable, its efficacy depends on its binding force being recognized by those for whom

it is to be valid, thus proving that it truly governs and regulates human actions.172

The previously highlighted category of efficacy thus reflects the basic risk of

normativity:173 the fact that, in order to be able to fulfill its task, it depends on the compliant

behavior of those to whom the norm is addressed. By displaying such accommodation, the

lawfully acting agent contributes to the development of the legal order in social life.174 As a

result, he fills his civic role in a manner contrary to that of the lawbreaker. While the latter

claims to determine the conditions and the extent of his loyalty at his own discretion, he

accepts the unconditioned primacy of the law. In doing this, he confirms and fixes its

authority.175

The concept of criminal wrongdoing can be concretized on the basis of these

considerations as follows: the specific nature of this wrongdoing lies in the fact that the

perpetrator, by executing a norm that deviates from the norms of criminal law and that

favors him unilaterally, violates his obligation to cooperate in the maintenance of the

existing legal order and, as a result, breaches his role as a representative of the legal

community—in short, as a citizen.176 In one word: wrongdoing as it applies to criminal law

is by definition wrongdoing by the citizen.

C. Freedom as a Ground for Punishable Obligations to Cooperate

The linking of civic status with obligation to cooperate undertaken here likely

sounds unpleasant to proponents of an individualistic point of view.177 It is true that the

171 Volker Gerhardt, Partizipation 343 (2007); cf. Hegel, supra 165, at 240 (describing the legitimate action of citizens as an “example” of the universal).

172 Hugo Hälschner, Das gemeine deutsche Strafrecht 30 (1881).


174 See Taylor, supra note 5, at 69 (there with reference to extrajudicial courtesy).

175 Cf. Robert Spaemann, Zur Kritik der politischen Utopie 180 (1977).

176 See also Duff, supra note 153, at 60 et seq., 112 et seq.; Antony Duff, Answering for Crime 49 et seq. (2007); Antony Duff, Responsibility, Citizenship, and Criminal Law, in Philosophical Foundations of Criminal Law 125, 139 et seq. (Antony Duff & Stuart Green eds., 2011) [hereinafter Responsibility]; cf. Nicola Lacey, State Punishment 176 et seq. (1988); Dan Markel, What Might Retributive Justice Be?, in Retributivism 49, 53 et seq. (Mark D. White ed., 2011). From the recent German-language literature: Dennis Dold, Eine Revision der Lehre vom Rücktritt vom Versuch 34 et seq. (2017); Julia Maria Erber-Schropp, Schuld und Strafe 75 et seq. (2016); Gärditz, supra note 36, at 36, 51; Michael Kubiciel, Die Wissenschaft vom Besonderen Teil des Strafrechts 164 et seq. (2013); Frauke Timm, Gesinnung und Straftat 52 et seq. (2012); Matthias Wachter, Das Unrecht der versuchten Tat 107 et seq. (2015).

177 See Dietmar von der Pfordten, Normativer Individualismus versus normativer Kollektivismus in der Politischen Philosophie der Neuzeit, 54 Zeitschrift für philosophische Forschung 491 (2000); Dietmar von


interpretation of crime as a violation of a duty of cooperation vis-à-vis the legal community

by no means states that the interests for the sake of which the perpetrator bears that duty

must in turn also be universally assigned to the general public. The justification for

legitimizing the obligation to cooperate does not depend as an issue on how obligations are

structured in the concept of crime; the construction of the concept of crime does not

prejudice the problem of legitimation theory.178 Nevertheless, the concept outlined here

may well arouse the suspicion among some readers that it reduces the individual citizen to

the status of the functionary of an abstract generality, which can be filled arbitrarily with

content. My reference to Hegel, who still has a reputation among many German criminal

lawyers—a view not shared by most of his current philosophical interpreters179—for

idolizing the government,180 may reinforce this fear. However, such a reading would

misjudge an important implication of the approach to the theory of action described here.

Taking action means commenting on normative alternatives in a competent, i.e.,

justifiable, way.181 Acknowledging an individual as an agent only goes beyond the status of

a purely verbal, practically inconsequential concession if it is institutionally conveyed to the

person concerned that it comes down to the content of his statement in practice. This does not,

even primarily, merely include the fact that statements which contradict existing legal norms

are imputed to him.182 First and foremost, it is more important to set up the rules as far as

possible to make a practically significant difference as to whether the statements of the individual,

insofar as they are within the limits permitted by law, are this way or another. For this

reason, only a system of freedom as self-determination fits a political community of agents.

At least since Rousseau and Kant, this thought has been the inexorable fixed point of all

philosophically satisfiable discussions on questions of political philosophy.183 Accordingly,

only the necessity of maintaining a condition of freedom can be considered the fundamental

reason for the duty to cooperate under criminal law. It is this combination of the idea of

the duty to cooperate and the idea of the preservation of freedom which, in my opinion,

justifies the claim to validity of today’s criminal law.184

der Pfordten, Normativer Individualismus, 58 Zeitschrift für philosophische Forschung 321 (2004).

178 Pawlik, supra note 31, at 91 with further references.

179 Thomas Sören Hoffmann, Hegel 16 et seq., 428 et seq. (2004); Frederick Neuhouser, Foundations of Hegel’s Social Theory 17 et seq., 114 et seq., 145 et seq. (2000); Robert B. Pippin, Hegel’s Practical Philosophy 183 et seq. (2008); Ludwig Siep, Hegels praktische Philosophie und das “Projekt der Moderne” 15 et seq. (2011); Klaus Vieweg, Das Denken der Freiheit 35 et seq., 345 et seq. (2012).

180 See, e.g., Tatjana Hörnle, Claus Roxins straftheoretischer Ansatz, in Festschrift Roxin 3, 4 (Manfred Heinrich et al. eds., 2011).



183 Michael Pawlik, Das unerlaubte Verhalten beim Betrug 14 et seq. (1999).

184 More in Duff, supra note 153, at 46 et seq.; Pawlik, supra note 31, at 99 et seq.


Determining about someone means controlling him.185 The peculiarity of self-

determination is that the controller and the person being controlled are identical. Those

who live self-determinedly do not allow others to dictate their actions to them, but define

their actions independently according to their moral convictions and goals. The main task

of law, especially criminal law, therefore consists of safeguarding the objective of everyone

being able to lead his or her own life as he or she sees fit. It is true that the state and its

criminal codes cannot guarantee individuals a fulfilled life. What criminal law can do,

however, is this: enable the individual, obviously under the condition of strict reciprocity,

to shape his or her own existence, free of paralyzing fear and oppressive heteronomy.

The citizen demanding self-determination, however, not only acts in the role of a

private person responsible before the law, who is interested in an effective protection of his

integrity against damages, but also in the role of a citizen responsible for the law.186 In his

book The Metaphysics of Morals, Kant accordingly rejects as tautological the view that legal

freedom consists of being allowed to do anything we want as long as we don’t do anything

wrong to anyone else, and replaces it with the following definition: legal freedom is “the

right through which I require not to obey any external laws except those to which I could

have given my consent.”187 Kant thus makes it clear in his dispute with Beccaria, with

explicit reference to the particularly intervention-intensive criminal laws, that this does not

denote consent that actually takes place, but consent that can reasonably be expected.188 In

view of the “fact of pluralism,”189 the “pure law-giving reason”190 invoked by Kant can,

however, no longer find its institutional expression in the personality of the monarch bound

solely to his conscience, but rather in suitable procedural arrangements. According to all

historical experience to date, the best form of rule has so far proved to be representative

democracy or its subsequent development, participatory democracy.191

It is therefore inherent in the identity of the self-determined citizen, through the

mediation of the representatives elected by him within the scope of the constitutional order,

to also criminally secure political concerns which are not on the list of “legal interests” (as

close as possible to personality) which the philosopher kings of criminal law have drawn

up. The institutional connection between liberal criminal law and the democratic system is,


186 E.g., Richard Dagger, Republicanism and the Foundations of Criminal Law, in Duff & Green, supra note 176, at 63. On the ensuing “immanent politicization of subjective rights,” see Christoph Menke, Kritik der Rechte 189 et seq. (2015).

187 Kant, supra note 159, at 120 ann. [= 8 Akademieausgabe 350 ann. (1923)].

188 Immanuel Kant, The Metaphysics of Morals 108 (Marc Gregor trans., 1996) [= 6 Akademieausgabe 335 (1914)]. As a recent clarification, see Jens Eisfeld, Erkenntnis, Rechtserzeugung und Staat bei Kant und Fichte 283 et seq. (2015).

189 John Rawls, The Idea of an Overlapping Consensus, 7 Oxford J. Legal Stud. 1, 4 (1987).

190 Kant, supra note 188, at 108 [= 6 Akademieausgabe 335 (1914)].

191 Köhler, supra note 164, at 709 et seq.; Otfried Höffe, Ist die Demokratie zukunftsfähig? 290 et seq. (2009); Paul Nolte, Was ist Demokratie? 108 et seq. (2012); Alexander Thiele, Verlustdemokratie 50 et seq. (2016).


however, notoriously underestimated by criminal law scholars.192 Rather, the legislator is

perceived in a largely pre-constitutional manner almost exclusively as the instance to be

tamed. “The fact that the legislator is directly democratically legitimized as the only state

authority, that the legislator is constitutionally bound and in the democratic constitutional

state cannot be conceived at all without its constitutional ties, on the other hand, fades into

the background.”193

The “disturbing distance from democracy”194 of the conventional doctrine on

legally protected goods, is caught in “a kind of normative parallel world”195 and often

ignores the state of constitutional discussion out of a feeling of misunderstood superiority.

It is opposed by the theory of crime outlined here, which is based on a reflective concept

of modern freedom, and regards the constitutional latitude of the criminal legislature not

as an unavoidable evil, but as a genuine and commendable expression of civil liberty.196

D. A Theory of Republicanism

The British historian of ideas Quentin Skinner refers to the view that the assertion

of individual freedom includes the duty to establish a community in which the free rule

over themselves and to cooperate in its preservation, as republican.197 Skinner shows that

this understanding of freedom has been largely suppressed since Hobbes and all the more

so in liberalism by a competing view, which defines freedom as the absence of external

obstacles.198 Liberals therefore find it difficult to justify the obligation to participate in

supraindividual political entities.199 The distinction by Duff between subjects and citizens

as at the beginning of this section200 is, in contrast, based on a republican concept of

citizens.201 The purpose of the conception I propose ultimately also consists of reminding

criminal law scholarship of the tradition of republican thinking.202

192 Gärditz, supra note 36, at 39 et seq., 65 et seq.

193 Ivo Appel, Verfassung und Strafe 330 (1998).

194 Carl-Friedrich Stuckenberg, Grundrechtsdogmatik statt Rechtsgutslehre, Goltdammer’s Archiv 653, 658 (2011).

195 Id. at 655.

196 See also, in effect, BVerfGE [Decisions of the German Constitutional Court] 120, at 224, 240 et seq. (2008).

197 2 Quentin Skinner, Visions of Politics: Renaissance 195 et seq., 206, 210 et seq. (2002) [hereinafter Visions]; Quentin Skinner, The Paradoxes of Political Liberty 229 et seq., 237 et seq., 246 et seq. (1984) [hereinafter Paradoxes].

198 Quentin Skinner, Liberty Before Liberalism 5 et seq. (1988); Skinner, Visions, supra note 197, at 187.

199 Skinner, Paradoxes, supra note 197, at 248; in this sense also Duff, Responsibility, supra note 176, at 53.


201 Duff, supra note 153, at 58; Duff, Responsibility, supra note 176, at 138; also Dagger, supra note 186, at 62 et seq.

202 See also Gärditz, supra note 36, at 57.


Incidentally, this is exactly the purpose of Hegel, who was ignored by Skinner.

According to Hegel, the substantial state is not in opposition to the persons of abstract law

and the subjects of morality. Rather, by virtue of its logical structure it shares with them the

quality of being a design of the idea of law, i.e., a form of existence of free will.203 However,

in comparison with those subordinate forms, the state is characterized by the fact that it

“has evolved into an organization,”204 that law and power have thus become one in it.205

“The abstract is the right, the realization is the state.”206 Accordingly, if the person embodies

the “existence of the spirit, freedom” in its abstract form,207 then the state represents

“freedom in its most concrete shape.”208 “In a state which is really articulated rationally all

the laws and organizations are nothing but a realization of freedom in its essential

characteristics.”209 Even the right of personality is not destroyed in it, but realized.210 Thus

law in the form of subjective entitlement always “only has the form of a claim that is

directed to the will of other individuals and is dependent on it in its realization.”211 In the

state, on the other hand, “the law develops into an existing order, into a power dominating

the individual will”212—in short, into the reality of freedom. Therefore, by fulfilling his

obligation to cooperate, the individual citizen, as Hegel says, makes his contribution to the

“organization of the concept of liberty;”213 by violating it he attacks the existing status of

liberty.

III. Punishing

A. The Dilemma of Retribution

This attack—in Hegel’s terminology, this negation—is contradicted by the act of

punishment; in Hegel’s words, it is negated. Retaliation is nothing but a negation of

negation.214 These formulations are well-known from the discussion of criminal law theory

in the past and present. Not infrequently, however, they have been subjected to harsh

203 For more detail, cf. Michael Pawlik, Rückkehr zu Hegel in der neueren Verbrechenslehre?, in Hegels Erben? 247, 257 et seq. (Michael Kubiciel et al. eds., 2017).

204 Hegel, Rechtsphilosophie, supra note 82, at 88.

205 Hälschner, supra note 172, at 561.


207 G.W.F. Hegel, Die Philosophie des Rechts: Die Mitschriften Wannenmann (Heidelberg 1817/18) und Homeyer (Berlin 1818/19), 220 (Karl-Heinz Ilting ed., 1983).

208 Hegel, supra note 58, § 33, at 64 [= 7 Werke § 33Z, at 91 (1986)].

209 Hegel, Aesthetics, supra note 165, at 98 [= 13 Werke 136 (1986)].

210 Cf. Hegel, supra note 207, at 43.

211 2 Hugo Hälschner, Das Preußische Strafrecht 216 (1858).

212 Id.


214 Hegel, supra note 58, § 97, at 123.


ridicule: dark words without tangible content, mental lyricism. According to these critics,

they do not even remotely do justice to the rational aspiration of modernity, especially when

they concern such a serious event as the imposition of punishments.215 To find something

dark, however, is not a testament to superior intellect. According to a joke by Lichtenberg,

“[T]he elephants and the poodles can find . . . who knows what dark.”216 It is true that

Hegel’s precision sometimes creates the impression of vagueness;217 however, this

impression can be dispelled. I would like to try this now.

I will begin with a general concern that confronts the concept outlined here.

According to Möllers, this concern can be described as the dilemma of retribution. On the one

hand, we expect an appropriate criminal theory to be able to establish a rationally plausible

connection between the substance of the violated norm and the sanction of “punishment.”

On the other hand, we expect punishment to maintain a distance from the breach of the

norm, that is to say not to repeat it disguised as a sanction.218 It is precisely because

retaliation fulfils the first requirement very well that it seems all the less to satisfy the second

requirement. Is there not rather a highly dubious moral concern behind its awe-inspiring

terminological façade—the desire for revenge? No philosopher has articulated this

accusation more forcefully than Schopenhauer: “When you retaliate for a wrong by

inflicting pain without any future purpose, this is revenge; it can have no goal other than

that of comforting yourself for your own suffering by looking at the suffering you have

caused in someone else. This is wickedness and cruelty and it is ethically unjustifiable.”219

In the nineteenth century, however, concerns about crude retaliation were not

confined to philosophical outsiders like Schopenhauer. Friedrich Julius Stahl, the legal

philosopher of Prussian conservatism, also pointed emphatically to the clear flank of that

model for justifying punishment: “How can a restoration of the injured order lie in inflicting

on the violator an evil that the penalty undoubtedly is? Bringing a second evil into the world

doesn’t abolish the contradiction inherent in the first one.”220

Stahl resorted here to a consideration which some decades earlier had been

expressed eloquently by Hegel, whom Schopenhauer so hated. According to Stahl, it is

irrational to want an evil only because another evil already exists.221 In light of this critique,

justifications of penalties based on the theory of retaliation are only acceptable if they

succeed in attributing a positive meaning to the punishment. The positive meaning must go

215 See, e.g., D.J.B. Hawkins, Punishment and Moral Responsibility, in Theories of Punishment 13, 16 (Stanley E. Grupp ed., 1971); Tobias Zürcher, Legitimation von Strafe 73 et seq.(2014).

216 Georg Christoph Lichtenberg, Aphorismen 94 (1976).

217 Ritter, supra note 154, at 96 et seq.


219 1 Arthur Schopenhauer, The World as Will and Representation 374 (Judith Norman et al. eds. & trans., 2010) (1818).

220 2 Julius Stahl, Die Philosophie des Rechts 165 et seq. (5th ed. 1878).



beyond the negative sequence of two evils rejected so vehemently by Hegel without

resorting to the arsenal of conventional teachings on prevention—deterrence,

improvement, rendering harmless. The difficulty of this task is demonstrated by the fact

that even a great philosopher like Kant could not do it justice.

Admittedly, in a system of ethical and juridical attribution operating under the idea

of freedom, one can understand and legitimize a practice of taking responsibility according

to what has been merited as an expression of respect for the perpetrator. This perpetrator

made use of his ability to shape the world of his own free will in such a way (namely in a

breach of duty) and not otherwise (namely in a dutiful manner).222 Hegel will clothe this

thought in the famous formula that the perpetrator is respected by his punishment by being

treated as reasonable.223 However, this does not justify why the practice of criminal liability

may include the prospect of and infliction of pain. The claim that this must be the case is

not a specifically legal philosophical or even criminal philosophical proposition in Kant’s

system. Kant’s clearest avowal of the reasonable necessity of the connection of the moral

imperative and the threat of sanctions is rather found in one of his contributions to the

philosophy of religion, the Theodicy essay.224 In the background of these explanations, there

is a theodicy problem, “the disproportion between the impunity of the depraved and their

crimes . . . in the world”225 —a disproportion which Kant clothes in the conceptual pair

“bliss versus worthiness of bliss.” Man impels his nature towards bliss, the “satisfaction of

all our inclinations.”226 On the other hand, “reason limits the condition of worthiness to be

happy; that is, morality.”227 Therefore, according to Kant, only a person whose will is always

in harmony with the general rule of reason is fully worthy of happiness. The individual, on

the other hand, is unworthy of happiness because and insofar as his desire contradicts

morality.228

According to Kant, for this reason anyone who commits criminal acts forfeits his

worthiness to enjoy the conveniences of life in accordance with the extent of his guilt.229

222 See, e.g., Duff, supra note 152, at 133; Antony Duff, Retrieving Retributivism, in Retributivism 3, 14 (Mark D. White ed., 2011) [hereinafter Retrieving]; Sarah Holtman, Kant, Retributivism, and Civic Respect, in Retributivism 107, 116 (Mark D. White ed., 2011); Markel, supra note 176, at 51 et seq.; Arthur Shuster, Punishment and the History of Political Philosophy 101 et seq. (2016).


224 Immanuel Kant, Religion and Rational Theology—On the Miscarriage of All Philosophical Trials in Theodicy 25 (Allen W. Wood & George di Giovanni trans., 1996) [hereinafter Miscarriage]; see already, in substance, Immanuel Kant, Critique of Practical Reason 34 et seq. (Andrews Reath & Mary Gregor trans., 2015) [hereinafter Critique of Practical Reason].

225 Kant, Miscarriage, supra note 224, at 26.

226 Immanuel Kant, Critique of Pure Reason 677 (Paul Guyer & Allen W. Wood trans., 1998) [hereinafter Critique of Pure Reason]; for more detail, see Kant, Critique of Practical Reason, supra note 224, at 104.

227 Immanuel Kant, Anthropology from a Pragmatic Point of View 231 (Robert B. Louden trans., 2007).

228 Immanuel Kant, On the Common Saying: “This May Be True in Theory, But It Does Not Apply in Practice,” in Political Writings 64 (Hans Reiss & H.B. Nisbet trans., 2d ed. 1991).

229 Kant, Critique of Practical Reason, supra note 224, at 34.


His punishment makes this loss of happiness externally visible and physically perceptible.230

However, this course of argumentation obviously conflicts with Kant’s distinction between

ethical and judicial legislation.231 Anyone who behaves in a law-abiding manner only out of

fear of punishment will thus satisfy the requirements of legal legislation. However, from a

moral point of view, he is a sinner.232 Therefore, such a person is by no means worthy of

happiness. For good reason Kant’s postulate of the harmony of bliss and worthiness of

bliss both in the Critique of Pure Reason and in the Critique of Practical Reason primarily serves

to prove the moral necessity of God.233 As “one who knows the heart,”234 he is able “to

penetrate to the most intimate parts of the dispositions of each and every one and, as must

be in every community, give to each according to the worth of his actions.”235 A human

judge is neither entitled nor able to gain such a view inside another.236

Regardless, Kant obviously assumes that a weakened version of the link between

bliss and happiness asserts validity in the juridical area,237 such that the group of behavior

patterns that reduce happiness is limited to actions contrary to the law; the obligation of

the delinquents to tolerate punishment is focused with regard to reason and extent on these

actions and the punishment is imposed on them in the context of an emotion-absorbing

and strictly legally-bound procedure.238 Kant’s assurance that this practice corresponds to

“our idea of justice”239 is admittedly a mere assertion of evidence.240 His justification of

punishment therefore contains at most “the acknowledgement of the inevitability that

criminal law must be derived from reason or from the idea of justice, but not the actual

230 Immanuel Kant, Kant on the Metaphysics of Morals: Vigilantius’s Lecture Notes (Peter Heath trans.), in Lectures on Ethics 249, 308 (Peter Heath & J.B. Schneewind eds., 1997).

231 Kant, supra note 188, at 20 et seq.

232 Immanuel Kant, Religion and Rational Theology, Religion Within the Boundaries of Mere Reason 77 (Allen W. Wood & George di Giovanni trans., 1996).

233 Kant, Critique of Pure Reason, supra note 226, at 672 et seq.; Kant, Critique of Practical Reason, supra note 224, at 103 et seq.

234 Kant, supra note 232, at 134; Kant, supra note 188, at 190.

235 Kant, supra note 232, at 134.

236 1 Paul Johann Anselm von Feuerbach, Revision der Grundsätze und Grundbegriffe des positiven peinlichen Rechts 24 et seq. (1799).

237 This is also Christian Dusch’s interpretation of Kant in Christian Dusch, Staat und Strafe 245 et seq., 249 et seq., 274, 293 (2011); Samuel Fleischacker, Kant’s Theory of Punishment, 79 Kant-Studien 434, 446 et seq. (1988); Dieter Hüning, Kants Strafrechtstheorie und das jus talionis, in Aufklärung durch Kritik 333, 348 et seq. (Dieter Hüning et al. eds., 2004); Heiko H. Lesch, Der Verbrechensbegriff 23 et seq., 38 (1999); Susan Meld Shell, Kant on Punishment, 1 Kantian Rev. 115, 122 et seq. (1997); Shuster, supra note 222, at 110 et seq.

238 Kant, supra note 188, at 207 et seq.; Kant, supra note 227, at 170.


240 Reinhard Brandt, Gerechtigkeit und Strafgerechtigkeit bei Kant, in Kant in der Diskussion der Moderne 425, 435 (Gerhard Schönrich & Yasushi Kato eds., 1996); Don E. Scheid, Kant’s Retributivism, 93 Ethics 262, 274 (1983).


derivation.”241

B. Punishment as a “Symbol of Culpability”

So what is the positive aspect of negation and retributive contradiction vis-à-vis the

crime? The starting point of the answer I propose lies in the simple, almost banal fact that

a person who commits a crime and a person who punishes for it have one thing in common,

namely their capacity as agents. Their criminal or punitive action—not an abstract entity such

as “the crime” or “the punishment”—is the subject of condemnation or legitimation. Just

like the criminal act, the act of punishment is also a communicative statement. As has been

demonstrated, however, statements always contain two declarations. By affirming a certain

aspect, they deny others, and vice versa.242 With a yes to the illegal action alternative, a

criminal expresses an implicit no to the requirements of the norm he violated.243 The court

that judges the legal consequence of the accused’s conduct also sees itself confronted with

two different courses of action—either to declare that conduct punishable or to acquit the

accused. By answering that question in the first sense, the court, on the one hand, rejects

the counter-norm put into the world by the delinquent and therefore opposes it with a no.

On the other hand, the court confirms and affirms the authority of the normative order

breached by the punished person.

The punishment is therefore first and foremost a sign, and according to Kant it can

also be referred to as a “symbol of criminal liability.”244 Through symbols, sensory single

contents are transformed into carriers of general intellectual meanings.245 “Their content

subsists purely and wholly in the function of signification.”246 The same applies to

punishment. Its significance in legitimation theory consists in its status as a communicative

act,247 namely a “position of law arising from the negation of crime”:248 “punishment as

language.”249 The decision on whether to punish or not does not belong to the field of

poiesis, contrary to what is assumed by the theories of prevention, but to that of practice. It

does not serve the purpose of collective self-ascertainment, of answering the question: “Who

241 1 Heinrich Luden, Handbuch des teutschen gemeinen und particularen Strafrechts 38 (1847).



244 Immanuel Kant, Correspondence 448 (Arnulf Zweig ed., trans., 1999).

245 Ernst Cassirer, Der Begriff der symbolischen Form im Aufbau der Geisteswissenschaften, in 16 Gesammelte Werke 79 (2003).

246 Cassirer, supra note 123, at 106.

247 In the German-language literature, this position is most prominently represented by Jakobs, supra note 79, at 112; Jakobs, supra note 131, at 32 et seq.; Günther Jakobs, Staatliche Strafe: Bedeutung und Zweck 25 et seq. (2004). For the Anglo-American literature, see, e.g., Duff, supra note 153, at 79 et seq.


249 See, e.g., Igor Primoratz, Punishment as Language, 64 Philosophy 187, 187 et seq. (1989).


do we want to be?” but rather accomplishes this self-ascertainment.250

This is not to declare expectations and hopes illegitimate, tied as they are to this

executive action.251 Rather, these expectations and hopes shift back into the second row in

legitimation theory.252 Of course it is gratifying that the practice of punishment discourages

offending other people and strengthens the attitude of law-abiding citizens.253 In

Hälschner’s words, this is already important because in “well-ordered, healthy public life,”

the individual criminal act cannot immediately endanger the power of the state in its

position of power. However, this applies “only under the condition that the law continues

to exercise its power in eradicating crimes and thus asserts itself in the consciousness of

criminals like all others in its authority and its position of power.”254 The concept here

therefore does not forbid satisfaction about the various individual and socio-psychological

consequences of punishment. It simply refuses to base the legitimacy of the penalty

substantially on its fitness to achieve these consequences. To do so would no longer mean

to speak to the offender, as is the meaning of the penalty, but to speak to other persons

through him. However, this would merge the respective person, with Kant’s well-known

criticism of the prevention-theoretical justifications of punishment, under the objects of the

law of property;255 this would deny him the recognition to which he is entitled as a

competent actor who deserves an answer to his communicatively relevant contribution.

C. The Role of Compulsion in Punishment

Competent users of language signs do not express their communicative concerns

stammeringly or indistinctly, but elaborately, concisely and comprehensibly. These

requirements for “skillful” semantics also apply to the use of the “legal sign”256 called

penalty. The punitive enforcement of the law must therefore not take place arbitrarily, but

rather in a way that expresses the aforementioned meaning in a socially convincing way.

Admittedly, by confirming the authoritativeness of the norms for the self-conception of the

legal community violated by the delinquent, the courts essentially deliver the same

performance as citizens who from the outset behave in a law-abiding manner.257 In contrast

to the latter, however, the courts are confronted not only with a merely possible, but with

250 Günther Jakobs, Zur gegenwärtigen Straftheorie, in Strafe muß sein! Muß Strafe sein? 36 (Klaus-Michael Kodalle ed., 1998); Günther Jakobs, Die ultima ratio der Personen, 12 Ethik und Sozialwissenschaften 107, 108 (2001); Jakobs, Zurechnung, supra note 85, at 59 et seq.; Duff, supra note 153, at 88 et seq.

251 For clarification, see Lacey, supra note 176, at 185.

252 See also Duff, supra note 153, at 89; Duff, supra note 152, at 134; Gärditz, supra note 36, at 23; Igor Primoratz, Justifying Legal Punishment 153 (1989); Primoratz, supra note 249, at 198.

253 See, e.g., Lacey, supra note 176, at 182-83.



256 Borsche, supra note 5, at 239 et seq.



an actually executed “no” to the rules of criminal law. The delinquent poses the question

of power, as stated by Binding,258 and the legal community must respond to it with a suitable

answer. By imposing punishment, it reduces the crime “to something that is subordinate

and overcome.”259 Therefore, the legal community ensures by means of punishment that

the coercion exercised by the offender strikes back at him.260 In so doing, the community

expresses the fact that power really still rests with it. In this way, certain “primal reaction

mechanisms”261 are transformed into meaningful signs within the framework of an

elaborate and highly ritualized symbolic language.

The broad social acceptance of this transformation process proves that the gap

between older and modern societies, which like to describe themselves as “secularized,” is

not as large as is sometimes claimed. As Taylor notes, the need to repair a crack in the

structure of the world is by no means limited to traditional communities. Modern societies

have their own rituals of restoration through which they strengthen the disturbed order

anew,262 and punishment has a central place among them.263 Whoever denounces this

practice as unreasonable certainly cannot be refuted in the strict sense. However, he fails to

recognize what practical philosophy can and should achieve: synthesizing existing belief

structures, not reinventing them.264 Philosophers indeed possess subtler methodological

instruments than laymen, but they cannot claim a deeper moral insight for themselves by

virtue of their profession.265 Creating awareness about ordinary moral consciousness

therefore does not imply exposing it to blaming or unmasking critique, but rather helping

it to better understand itself. The fact that the concept of criminal theory outlined here

achieves this is the aspiration by which it seeks to be measured.

For the condemned person, the punitive nature of the use of signs often has drastic,

even existentially threatening consequences. Not only does he have to tolerate an abstract

rebuke, but a far-reaching intervention in his existence.266 In Hegel’s words, what he wants

to keep is taken from him by punishment:267 his freedom, his property and possessions and,

258 Karl Binding, Handbuch des Strafrechts 236 (1885).

259 Cf. 1 G.W.F. Hegel, Lectures on the Philosophy of World History 86 (Robert F. Brown & Peter C. Hodgson trans., 2011).


261 Gärditz, supra note 36, at 45.


263 Lacey, supra note 176, at 185.

264 For more detail, see Michael Pawlik, Vom Nutzen der Philosophie für die Allgemeine Verbrechenslehre, Goltdammer’s Archiv 369, 386-87 (2014).

265 This position finds approval in quite different philosophical camps. Compare Dieter Henrich, Denken und Selbstsein 94 (2007) with Richard Rorty, Philosophie als Kulturpolitik 320 (Joachim Schulte trans., 2008).

266 4 G.W.F. Hegel, Vorlesungen über Rechtsphilosophie 1818–1831 550, 552 (Karl-Heinz Ilting ed., 1974).

267 Id. at 285.


in the extreme case, even his physical existence.268 It is not by chance that the body, the

freedom of movement, and the power of disposal over one’s own goods are recognized in

our culture as the central “signs of freedom.”269 Nevertheless, the perpetrator’s criminal act

does not change the fact that he is and remains a citizen.270 Precisely for this reason, he is

not released from his responsibility for the success of the project of a genuine system of

freedom. What changes is merely the content of his obligation. The citizen acting legally

contributes to the stabilization of a state of real freedom by allowing others to retain their

own freedom. In the case of the offender, the primary obligation to fulfill is transformed

into a secondary obligation to tolerate. Because the delinquent has acted contrary to the

basic axiom of all legality—the proposition that secured freedom exists only at the price of

the fulfilment of duty—he must put up with the fact that the indissolubility of the

relationship between the enjoyment of freedom and the fulfilment of the duty to cooperate

is confirmed at his expense.271 The act of confirmation is called punishment.272

The manner in which the penalty must be designed in detail in order to be socially

credible depends, on the one hand, on the cultural background and, on the other hand, on

the current level of security of the respective society. A priori statements, especially a literal

understanding of Talion, as Kant had in mind,273 are out of place here. For example, Kant

and Hegel still quite naturally accepted the death penalty,274 which is regarded today, at least

among the cultural elites of Europe, as barbaric and therefore as an unsuitable meaningful

representative of the legal sign called punishment. Only one thing is inalienable: the state

must make it unmistakably clear by the organization of its criminal law system that it

seriously rejects criminal offences.275 “A polite right means nothing.”276 If the state contents

itself with the generous enactment of penal provisions without ensuring their regular

enforcement, its performative self-portrayal eventually becomes as untrustworthy as that of

268 Id. at 550.

269 Tilman Borsche, Freiheit als Zeichen, in Zeichen und Interpretation 99, 114 (Josef Simon ed., 1994).

270 Duff, supra note 153, at 72, 77, 90, 113, 130, 151; Duff, Responsibility, supra note 176, at 144.

271 See generally Adolf Merkel, Lehrbuch des deutschen Strafrechts 171 et seq. (1889); 1 Adolf Merkel, Gesammelte Abhandlungen aus dem Gebiet der allgemeinen Rechtslehre und des Strafrechts 383 et seq. (1899); 2 Adolf Merkel, Gesammelte Abhandlungen aus dem Gebiet der allgemeinen Rechtslehre und des Strafrechts 584 et seq. (1899); see also Karl Binding, Grundriss des Deutschen Strafrechts 227 (8th ed. 1913); Binding, supra note 150, at 425 et seq.; cf. Duff, Responsibility, supra note 176, at 140 (developing a parallel explanatory figure).

272 For details, see Pawlik, supra note 31, at 116 et seq.; see also Jakobs, supra note 79, at 114; Jakobs, supra note 247, at 32; Jakobs, supra note 131, at 33 et seq. For further references see supra note 176.

273 Kant, supra note 188, at 105 et seq.

274 Cf. id. at 107 et seq.; , supra note 58, § 100, at 126.

275 Anderson, supra note 141, at 220 et seq.; Duff, supra note 153, at 28, 72, 114; Duff, supra note 152, at 138 et seq.; Duff, Responsibility, supra note 222, at 17; Tatjana Hörnle, Straftheorien 42 (2011); Markel, supra note 176, at 54; Primoratz, supra note 145, at 75 et seq.; Primoratz, Justifying, supra note 252, at 151 et seq.; Primoratz, supra note 249, at 200; William Wringe, An Expressive Theory of Punishment 85 et seq. (2015).

276 Johann Wolfgang Goethe, Maximen und Reflexionen 207 (1976).


the father who rebukes his child for a prank but can hardly resist laughter. In the words of

Reinhold Köstlin, in my opinion the most important of the circle of Hegelian criminal law

scholars, “despite all protests against it, wrongdoing will continue, assert itself as valid,”277

and thereby diminish the reality-determining power of the law. Too much criminal law

tends to be more harmful than too little.278

IV. Applying Rules

A. Practice as a Generator of Meaning

Both crime and punishment are meaningful acts: the criminal offender contradicts

the requirements of his duty to cooperate, while the punishment confirms their relevance.279

However, the word “confirmation” used without further explanation may create

misconceptions about the process of applying criminal law. Above all, when they are

connected with Luhmann’s concept of “normative expectations,” according to which

norms basically serve to stabilize expectations,280 the reference to the confirmation of norms

seems to suggest an inappropriately static understanding of this process. The norm whose

violation is sanctioned is thus solidified in its social authoritativeness, but its content

remains as is. The meaning inherent in it from the outset is established by the adjudicating

court and the individual case to be decided is then subsumed under it, and that is all. The

dynamics of legal development cannot be explained in this way. Just think of the situation

of a jurisprudential change. To be able to apply to it the narrowly understood confirmation

model, one would have to make the assertion that such a change leaves the true content of

the norm untouched, and merely removes the shell of the previous interpretation, now

recognized as false, which had so far concealed the brilliance of this truth. Such a

construction, however, deviates so far from the probably best assured insight of the newer

legal methodology, the principle of the creative character of legal interpretation,281 that it

would lastingly disavow even the confirmation model of the justification of punishment

which is based on it.

In my opinion, however, the mistake lies not in this model, but in an inappropriately

reifying understanding of where the meaning of expressions—here, in criminal law—comes

from. Meanings are not a given; contrary to the subcutaneous metaphysics of every “Rule

Platonism,” even in the guise of positivism, they are not treasures that are only waiting to

277 Köstlin, supra note 42, at 36.

278 Jakobs, supra note 107, at 62.

279 Supra text accompanying notes 175-76; 241-55.

280 Niklas Luhmann, A Sociological Theory of Law 33 et seq. (Martin Albrow ed., Elizabeth King & Martin Albrow trans., 1985); Möllers, supra note 34, at 129 convincingly criticizes this understanding of norms.

281 Summarizing Müller & Christensen, supra note 37, at 185 et seq.; Müller et al., supra note 37, at 19 et seq., 42, 74, 166; Müller, supra note 37, at 35, 38, 62 et seq.; Kurt Seelmann & Daniela Demko, Rechtsphilosophie § 6 marg. note 29 et seq. (6th ed. 2014); Bernd Rüthers et al., Rechtstheorie marg. note 677 et seq. (8th ed. 2015).


be discovered by resourceful users of language.282 Rather, linguistic meanings are the result

of a collective practice of action.283 Hegel has clothed the basic structure of social practices

in the famous formula of “‘I’ that is ‘We’ and ‘We’ that is ‘I’.”284 Accordingly, the moral

substance is indeed “presupposed” for the individual subjects in the sense that they already

encounter it in the form of the manifold systems of action and symbols which, by their

interaction, constitute the “intellectual nature.”285 Nevertheless, it is the countless actions

of these very many individuals, actions that connect and refer to each other, through which

“the substance of the will evolves into the organic moral world.”286 Durkheim’s proposal

to consider social facts as things287 therefore misses the mark.288 According to John Searle,

social objects are rather “placeholders for patterns of activities.”289 Just as the individuals

are dependent on the existing order, the order, in turn, lives by virtue of the fact that it is

followed and further developed by the individuals.

This principle also applies to the practice of generating linguistic meaning. “No text

reads itself;”290 just like every practical form language also exists exclusively in its

realizations.291 Because the individual expressions have meaning only in the practice of a

language,292 the legal norms exist only in execution.293 Language is therefore “neither a quasi-

natural quantity superior to the speaker and independent of him, nor a pure product of art

entrusted to the discretion of the respective speaker and his intentions.”294 Thus, language

corresponds neither to the model of ontogenesis known from the field of animate nature

nor to the model of purposeful production symbolized by the activity of the craftsman,295

but represents, as the Düsseldorf linguist Rudi Keller calls it, a “phenomenon of the third

kind:”296 the product of individuals who are themselves the products of their participation

in language.297 For this reason, the meaningful rules are both prescribed and delivered to

282 Müller, supra note 37, at 62; see also Seel, supra note 51, at 93; Stekeler-Weithofer, supra note 22, at 51.


284 G.W.F. Hegel, Phenomenology of Spirit 111 (A.V. Miller trans., 1977).

285 Köstlin, supra note 42, at 114.

286 Id.

287 Émile Durkheim, The Rules of Sociological Method 60 (W.D. Halls ed., 1982).


289 Searle, supra note 29, at 57.

290 Stanley Fish, Consequences, in Doing What Comes Naturally 315, 330 (1989).

291 Menke, supra note 186, at 341; Stekeler-Weithofer, supra note 22, at 130.


293 Menke, supra note 186, at 340.

294 Müller & Christensen, supra note 37, at 225 et seq.

295 Rudi Keller, Sprachwandel 25 (4th ed. 2014).


297 Robert B. Pippin, Hegel on the Political Significance of Collective Self-Deceit, in Philosophy and the


the speakers.298 They are valid to the extent that and with the same content with which they

are considered authoritative in current language practice. Consequently, one cannot

distinguish between repetition and new creation in the individual cases,299 because the

possibility of a (more or less subtle) shift of meaning is immanent to every rule

application.300 The insight into the creative character of rule-applying activity appears

inevitable in this light.301

This insight undermines an overly narrow understanding of “confirm.” Since a

given general standard—be it a statutory provision or a principle of judicial law—is unable

to conclusively determine its application to the individual case,302 it can only be confirmed

in a decision referring to the rule in such a way that it is recognized as its point of departure

and argumentative reference (which is, of course, indispensable under the rule of law).303

The act of punishment thus confirms not only, indeed not even primarily, the respective

criminal provision used as such, but rather the confidence that its further development into

the specific case decision will be in line with the established methodological standards. In

short, the subject of the confirmation is not primarily a concrete interpretation of norms,

but above all a complex culture of justification.304 It is the understanding, emerging from

the development of the profession, of how the line between still unpunishable and already

punishable kinds of conduct is to be drawn in a methodically correct way. This is explained

in more detail below.

B. Criminal Law as a Product of a Field of Justification

Meanings are the result of interpretations. They therefore presuppose standards of

interpretation or, as I have previously called them, evaluation schemes,305 criteria that regulate the

Historical Perspective 171, 174 (Marcel van Ackeren & Lee Klein eds., 2018), who relates this designation to Hegel’s “spirit” (Geist).

298 Brandom, Reason, supra note 43, at 93.

299 Möllers, supra note 34, at 180; Müller et al., supra note 37, at 123; Müller, supra note 37, at 145 et seq.; Alexander Somek, Rechtssystem und Republik 353 (1992); Alexander Somek & Nikolaus Forgó, Nachpositivistisches Rechtsdenken 161 et seq. (1996).

300 Möllers, supra note 34, at 203; Müller & Christensen, supra note 37, at 200; Müller, supra note 37, at 128; Müller et al., supra note 37, at 123; Taylor, supra note 5, at 253.

301 Müller & Christensen, supra note 37, at 41 et seq., 228 et seq., 269 et seq., 325; Müller et al., supra note 37, at 31 et seq., 73, 107, 126, 140; Müller, supra note 37, at 53, 61, 140 et seq., 338 et seq., 369; Somek & Forgó, supra note 299, at 96 et seq., 133 et seq.

302 Möllers, supra note 34, at 195, 278, 401, 421 et seq.; Müller, supra note 37, at 81, 132; Somek & Forgó, supra note 299, at 123, 164.

303 On this function of the legislative text, see Müller & Christensen, supra note 37, at 149 et seq., 186, 202, 234, 242, 288; Müller et al., supra note 37, at 32 et seq., 71, 117 et seq.; Müller, supra note 37, at 70 et seq., 81, 95, 105, 113, 145, 369 et seq.

304 Cf. Müller & Christensen, supra note 37, at 172, 197 et seq., 271; Müller et al., supra note 37, at 27, 35, 135 et seq.



attribution of meaning in the relevant field of action. The interpretation scheme applicable

to criminal law is the Criminal Code.306 But who determines its exact content? The inadequacy

of the classic answer (“the legislator”) is more evident in the general part of criminal law

than in almost any other area of law. In Germany and many other jurisdictions, this area

has an almost ridiculously small number of legal provisions compared with its practical

relevance. However, the reference to case law, in particular that of the highest and higher

courts, is not satisfactory either. It is true that any serious dogmatic contribution to a

particular individual issue in Germany will attach great importance to dealing with the view

of the Federal High Court of Justice. Nevertheless, the Federal High Court of Justice does

not have a monopoly in matters of interpretation. On the one hand, every dogmatic

statement claims to present the best of all possible interpretations of the problem being

dealt with.307 On the other hand, a (supreme) court ruling may bring a concrete legal dispute

to a conclusion, but not the discussion of the legal question on which it is based as such.308

The courts cannot be indifferent to the way in which the decisions they make are assessed

in this process of discussion. A jurisprudence which largely falls short of the standards of

reasoning practiced in the professional public jeopardizes both its social authority and its

professional reputation.309 As in Duff’s view of the criminal law with people as subjects,310

we orient ourselves to it because it holds power, but not because we see in it a respectable

medium of practical legal reason. For good reason, the Federal High Court’s jurisprudence

in Germany therefore attaches particular importance to dealing with what it considers to be

noteworthy scholarly voices, whether supportive or critical.

To do justice to these observations it is necessary to understand “criminal law” not

simply as an abstract normative system, but rather grasp it, just like language itself, in a use-

oriented way (i.e., as the highly mobile condensate of a social practice which can never be

unambiguously defined as regards content).311 “Every detail is action, nothing happens by

itself . . . . The practical jurist must decide everything by arguing.”312 In the same way as

language is not a complete set of rules prescribed to the speaker, but a “procedure for

306 Supra text accompanying notes 112.

307 Ulfried Neumann, Theorie der juristischen Argumentation, in Einführung in die Rechtsphilosophie und Rechtstheorie der Gegenwart 303, 342 (Arthur Kaufmann et al. eds., 8th ed. 2011); Ulfried Neumann, Recht als Struktur und Argumentation 90 (2008) [hereinafter Recht]; Niklas Luhmann, Law as a Social System 326 (Klaus A. Ziegert trans., 2004).

308 Müller et al., supra note 37, at 168 et seq.; Müller, supra note 37, at 52 et seq., 97 et seq., 371.

309 Somek & Forgó, supra note 299, at 193 et seq.


311 For more detail, see Möllers, supra note 34, at 203, 180 et seq., 250 et seq.; Müller & Christensen, supra note 37, at 209, 223 et seq., 345 et seq.; Müller et al., supra note 37, at 26 et seq.; Müller, supra note 37, at 66, 387, 391; Ralph Christensen, Was heißt Gesetzesbindung? 277 et seq. (1989); Somek, supra note 299, at 330 et seq.; Somek & Forgó, supra note 299, at 96 et seq., 107 et seq., 133 et seq. In the final analysis, Luhmann’s theory of social systems makes the same statement. Cf. Luhmann, supra note 307, at 78 et seq.



constitution of meaning,”313 constantly changed by power struggles,314 the standardizations

and evaluations of criminal law are also not objectively prescribed to the members of the

professional community who specialize in its interpretation. On the contrary, they are

“dependent on conflicting attempts at determination in the public language struggle,”315

within which individual actors who differ very much in rank and influence316 submit

interpretation proposals which are then adopted, rejected or changed by other actors.317 In

the context of this “semantic struggle”318—a complex tangle of manifold positions related

to each other319—every attribution of meaning, whether explicit or implicit, contains a

rejection of the interpretation alternatives discarded by it;320 the sentence omnis determinatio

est negatio is valid also in this respect.

Admittedly, at a given time, there are extensive and largely unequivocal areas, but,

as the American literary scholar and jurist Stanley Fish points out, “That core has been

established by the very forces that it now (but only temporarily) holds in bounds.”321

Accordingly, criminal law is the epitome of the interpretations updated at a certain point in

time by the influential authorities, above all the courts, and of those which at this point in

time are in the state of potentiality, but can in principle be updated. Not all conceivable

proposals for interpretation322 are indeed suitable for updating, but rather—as I would like

to formulate following William James—only those which are alive in the sense that they are

regarded by those to whom they present themselves as seriously debatable possibilities

which can be integrated into the usual professional discourse.323 Nevertheless, criminal

law—particularly when it is dogmatized as strongly as it is in Germany—is characterized by

a large surplus of alternative possibilities over the powerful reality.324 Criminal law shifts

occur because some of these possibilities acquire real power—up to spectacular changes in

313 Christensen, supra note 311, at 278.

314 Hampe, supra note 22, at 141; Bourdieu, supra note 17, at 57 et seq., 106.

315 Christensen, supra note 311, at 278.

316 On the related issues Bourdieu, supra note 17, at 72 et seq.

317 I attempt to trace the course of such conflicts of interpretation on the basis of the basic evolutionary categories of variation, selection, and stabilization. Michael Pawlik, Der Kampf ums Dasein, in Festschrift Paeffgen 13, 21 et seq. (Carl-Friedrich Stuckenberg & Klaus Ferdinand Gärditz eds., 2015).

318 Müller & Christensen, supra note 37, at 198, 206, 268; Müller et al., supra note 37, at 9, 58, 64, 66 et seq., 78, 105, 112-13, 136; Müller, supra note 37, at 20, 148, 348.


320 Müller et al., supra note 37, at 58, 111; Müller, supra note 37, at 146, 364.

321 Stanley Fish, Force, in Doing What Comes Naturally 503, 516 (1989) (emphasis in original).

322 We can speak of the “methodically possible” (e.g., Müller et al., supra note 37, at 132-33), this being understood as the wealth of variants which a legislative text plausibly permits (Müller, supra note 37, at 96).

323 Cf. William James, Der Wille zum Glauben, in Philosophie des Pragmatismus 128, 129 (Ekkehard Martens ed., 2009).

324 Möllers, supra note 34, at 292; Müller & Christensen, supra note 37, at 197 et seq., 321, 349 et seq.; Müller, supra note 37, at 347.


the supreme court's jurisprudence—while other possibilities sink from living to dead

hypotheses, thus to positions which are superficially still discussed, but whose superiority

nobody seriously believes in anymore.325 Strictly speaking, as a matter of fact, every single

literary or judicial statement changes the whole edifice of criminal law, because it increases

its complexity even if only to a minimal extent.326 Criminal law thus understood has no

distinct creators; the author of criminal law—if one still wants to talk about authorship in

this context—is rather the community of professional criminal law experts in its totality.327

As expressed by the Frankfurt philosopher Christoph Menke, “Every practitioner and only

the practitioner is a determinant of practice.”328

But how should practitioners be bound by standards whose interpretation cannot

be fixed? Doesn’t this lead to a paradox in terms of decision theory: a disguised decisionism?

By no means, because the asserted arbitrariness does not exist in practice.329 For one thing,

every human being moves with his acting, but also with his thinking, feeling and perceiving,

in a world already made accessible culturally.330 Its symbolic order “inscribes into the

individual an (unconscious) existential dependence on social institutions.”331 Every individual

knowledge and ability—all the more the ability to participate in such a refined form of

practice as that of criminal jurisprudence—is therefore mediated and conditioned by a

common knowledge and ability.332 Even the most innovative step doesn’t come from

nowhere. “Rather it builds on long established forms, and even the heroic innovator had

first to be trained and socialized into these, before striking out on his or her own.”333 Also,

every diagnosis of a criminal law problem and every proposal for tackling it is based on a

specific legal socialization,334 and they inevitably thread themselves into the web of existing

topics and considerations.335 They are never only individual occurrences, but always social

events as well.336

This disciplining effect is reinforced by the fact that scientific statements present

325 Cf. James, supra note 323, at 131.

326 Seyla Benhabib, Dignity in Adversity 129 (2011); Luhmann, supra note 307, at 107; Müller et al., supra note 37, at 119; Müller, supra note 37, at 108; Somek & Forgó, supra note 299, at 138.

327 Cf. Somek, supra note 299, at 356 et seq.

328 Menke, supra note 186, at 341.

329 See also Möllers, supra note 34, at 314 et seq.

330 Cf. Borsche, Freiheit, supra note 269, at 117 et seq.; Müller, supra note 37, at 96.

331 3 Thomas Vesting, Die Medien des Rechts 118 (2003).

332 Martin Seel, Theorien 117 (2d ed. 2009); Stekeler-Weithofer, supra note 22, at 92 et seq., 97.


334 Somek & Forgó, supra note 299, at 133 et seq.

335 Müller, supra note 37, at 376.

336 Cf. Hubert Knoblauch, Wissenssoziologie 18 (2005); 1 Niklas Luhmann, Gesellschaftsstruktur und Semantik 232 (1993); Dreyfus & Taylor, supra note 6, at 105 et seq.; Stanley Fish, Is There a Text in This Class? 321 (1980).


themselves not as individual meditation exercises, but as contributions to an ongoing

debate.337 Therefore, these statements appear with the claim to being so well justified that

they should be adopted by all participants in the discussion.338 But with this claim the

individual participant in the discussion relinquishes the right to define the quality of his

contribution;339 for “what is a telling ground for something”—so Wittgenstein remarks—

“is not anything I decide,”340 but rather the public sphere of communication partners.341

Even in the legal world something novel only appears and doesn’t perish in the “limbo of

reference footnotes,”342 or in the eternal ice of collective silence, “if its origin and

presentation brought it to the attention of the influential reference-group at the right time,

and in the right manner.”343 Therefore, the individual criminal law scholar, if not out of

personal conviction, then at least for the sake of the effect he aspires to on his expert

comrades,344 will deny himself excessively wild flights of thought. Instead he’ll be anxious

to return the unfamiliar to the familiar, and thus to keep up with the methodical and legally

substantive “plausibility potentials”345 of his communicative community.346

For these reasons, any justification based on criminal law presupposes “more

certainties than it can methodically resolve.”347 Above all, however, it cannot avoid taking

into account the fact that “we could not make any changes whatsoever within already

existing legal order if it was not for those which offer functional equivalents for existing

problem solutions—whether they be of a real or even pure doctrinal kind”348 and are able

to grasp and justify the available legal material as a whole. By orienting itself, however

superficially, to the sources of authority and the justification standards of the system, every

proposed change nevertheless simultaneously confirms the authoritativeness of this

337 Luhmann, supra note 307, at 324.


339 Stanley Fish, No Bias, No Merit: The Case Against Blind Submission, in Doing What Comes Naturally 163, 172 (1989); Müller, supra note 37, at 131.

340 Ludwig Wittgenstein, On Certainty § 271, at 73 (Denis Paul & G.E.M. Anscombe trans., 1969).

341 Josef Kopperschmidt, Argumentationstheorie zur Einführung 69 et seq. (2000); Müller, supra note 37, at 414; Nida-Rümelin, Philosophie, supra note 5, at 99, 134.

342 Wolfgang Kersting, Macht und Moral 190 (2010).

343 1 Steven Edelston Toulmin, Human Understanding 272 (1972).

344 Specifically relating to this, see Müller et al., supra note 37, at 94.

345 Kopperschmidt, supra note 341, at 66.

346 See generally Bourdieu, supra note 17, at 76 et seq.; Kopperschmidt, supra note 341, at 81 et seq.; Holm Tetens, Philosophisches Argumentieren 61, 187 (2d ed. 2006); on law, see Christensen, supra note 311, at 281 et seq.; Stephan Rübben, Bedeutungskampf 133 (2015).

347 Kopperschmidt, supra note 341, at 80; Robert Spaemann, Philosophische Essays 114 et seq. (1994); from a theoretical legal perspective, see Somek, supra note 299, at 331 et seq.



system;349 the dialectics—if one likes to use that word—of every criticism lie in this

dependence of criticism on what is being criticized.350 This double effect of change and

stabilization applies in a special way to judicial decisions, because although the courts are

reshaping a piece of legal reality from the ground up, they are more strongly committed to

the semantics of continuity than all other players in the legal system. It has no bearing here

whether the court judgments in the individual case affirm or deny the criminal liability of

the accused. In both cases, they contribute equally to reproducing the validity of the

legitimatory standards which, in this specific legal community, govern the professional

appraisal of whether a certain act should be assessed as a punishable repudiation of the civic

duty to cooperate.

C. Criminal Law as a Manifestation of Collective Reason

This finding has a significant flip side in terms of legitimation theory. Criminal law

isn’t the product of an ascertainable number of individuals, but rather arises from a

collective practice. So, conversely, each individual act confirming the authoritativeness of

that practice represents, in a way, the endpoint of a collective achievement, because this

achievement gives it its specific meaning and defines the scope of possibility for individual

statements. Although Jean Paul puts into the jurists’ mouths the antipauline maxim of life,

“examine everything and hold onto the worst,”351 things present themselves the other way

around from the legal internal perspective and from the view of a praxeologically oriented

philosophy. In the interplay of legislation, jurisprudence and legal studies, which observe

each other, refer to each other and, if necessary, correct each other, the highest possible

degree of legal reason attainable under the conditions of human existence—an existence

which is, as Hegel says, “ensnared . . . in finitude on every side”352 (e.g., cognitive limitations,

normative pluralism and scarcity of time)—manifests itself. Ultimately, the action of this

common reason confers on the obligations to cooperate under the threat of punishment

the contours of their content and gives the practice of confirming norms by punishment its

specific dignity. Granting the necessary scope for these activities is literally the best that the

legal community can do for the individual offender; as a citizen, he cannot and may not

demand more.

V. Integrating

A. Personal Responsibility of the Individual Criminal Law Scholar

The embedding of his actions in a collective practice of generating, selecting and

changing meanings relativizes the personal responsibility of the individual scholar of

349 Menke, supra note 186, at 311 et seq.; Bourdieu, supra note 17, at 57 et seq.

350 Stekeler-Weithofer, supra note 22, at 366.

351 Jean Paul, Ideengewimmel 157 (1997).



criminal law, but doesn’t make it disappear. On the contrary, precisely because a practice

exists only in its individual realizations, participation in it, especially if it has such drastic

sanctions at its disposal as those of the criminal justice system, is never innocent from the

point of view of legitimation theory. Even on the basis of the praxeological analysis

sketched here, the professional treatment of criminal law has to be individually justified

both in its “if” and in its “how.”353 For this reason, those working in this field must be

committed to integrating the doctrines of criminal law as well as they can into their role-

spanning self-understanding as reflected subjects of their lives. The more smoothly an

individual penologist manages this integration, the more likely he will be to stand by his

personal co-responsibility for the criminal-law decision-making process. I am assuming that

this thesis also requires more explanation.

B. Identity Balance as a Goal

Between the seventeenth and nineteenth centuries, in that part of the world that we

like to call the Western world, a momentous social transformation took place; Luhmann

describes it as the transition from stratificational to functional differentiation.354 In stratified

societies—feudal societies—the society is represented as a hierarchy.355 The feudal

affiliation to a particular estate has a multifunctional effect here: it concentrates advantages

or disadvantages in almost all areas of society.356 In the logic of functional differentiation,

on the other hand, every participant in social life has access to all functions, unless the

function itself excludes this or renders it pointless.357 Therefore, the overall system abstains

from any ordering of the relationship between functional systems here.358 Foucault has

escalated this conclusion into the assertion of a radical discontinuity of discursive events

that decomposed the subject by tearing it apart into a multitude of possible positions and

functions.359

However, this exaggeration is probably born out of delight in the precipitous

proposition. Indeed people are beings of high complexity who can understand and orient

themselves at the same time in different systems and roles.360 Nevertheless, the individual

353 Müller & Christensen, supra note 37, at 191, 285 et seq.; Müller, supra note 37, at 77, 101, 393 et seq.; Neumann, Recht, supra note 307, at 331; Pawlik, supra note 31, at 43 et seq.; Somek & Forgó, supra note 299, at 131 et seq.

354 Luhmann, supra note 336, at 72 et seq.

355 2 Niklas Luhmann, Theory of Society 51 (Rhodes Barrett trans., 2013).

356 Id.



359 Michel Foucault, Orders of Discourse (Rupert Swyer trans., 1971), 10 Soial Science Information 7, 22 (1971).

360 Hampe, supra note 22, at 226.


can’t limit himself to operating with “multiple business cards”361 without taking care of

coordinating the various role requirements. This would make him unrecognizable as the

subject of his various partial identities. He would be quelque façon nul, an individual reduced

to the status of a passive medium of his diverse roles, and it would remain inexplicable how

he could switch back and forth between the diverging bundles of expectations with some

agility and combine their demands in the unity of one life.362

It should be noted that it isn’t just the ability to pragmatically cope with life that is

at issue here, but also the ability to experience the existential meaning of life. As long as

society confronted the individual human being as an ordered whole into which he had to

insert himself, his life could indeed fail because he lacked the abilities required of him;

however, no space was provided in such a society for the question of whether his life had

meaning.363 The situation is different where the society seems complex, requiring its

members to behave contingently and selectively in each individual case.364 Now the

individual needs to learn to relate his actions to several social systems and to unite their

unbalanced demands in a personal synthesis of behavior, a coherent self-portrayal.365 Thus

he must form an “indeed differentiated, also suspenseful and nevertheless coherent ego-

identity”366—not only in the sense of a theoretical construct, but of a practical reality.367 If

he fails this “effort of self-unification,”368 this failure is not only sanctioned socially, but also

psychologically. Who doesn’t find it extremely painful that his life has no coherence or

doesn’t merge into a unity?369

This is not intended as a reference to the substantialistic autonomy of a locationless

immaterial “true self,” a homunculus that is at home beyond the various partial identities

and provides order among them in the manner of a conductor. Following on from the

theoretical considerations of action which I made at the beginning of this essay, the

individual actor is merely credited—better: entrusted—with the ability to use a graduated

system of reasons for action370 and, within the second stage, that of evaluation, to distinguish

again between the orientation towards individual requirements of roles and the orientation

towards a role-spanning coherence requirement. “Behind every wanting there is a wanting

361 Vincent Descombes, Puzzling Identities 30 (Stephen Adam Schwartz trans., 2016).

362 Id. at 32 et seq.; Hampe, supra note 22, at 403; Seel, supra note 51, at 288; Seel, supra note 22, at 24; Taylor, supra note 3, at 35.


364 3 Niklas Luhmann, Gesellschaftsstruktur und Semantik 225 (1989).

365 Niklas Luhmann, Grundrechte als Institution 53 (3d ed. 1986); Niklas Luhmann, Ausdifferenzierung des Rechts 334 (1981).

366 Otfried Höffe, Die Macht der Moral im 21. Jahrhundert 128 (2014).


368 Descombes, supra note 361, at 24.

369 Taylor, supra note 5, at 318-19.



of a higher level, behind every choice there is a self-choice.”371 This self is the concrete ego,

which has to align its single wanting according to the general “sense of direction,” which

has been predrawn by its self-choice.372

I would also ask the reader not to misunderstand the reference to “self-

determination.” I’m far removed from advocating for the idea of a model-free self-

invention drawn from the depths of one’s own soul. All knowledge, even the seemingly

most intimate, is socially constituted;373 the self-empowerment of the rational subject as the

ultimate instance of the meaningful is, in view of the “reality of a historical social a priori,”374

an “illusion from the Age of Enlightenment.”375 In what presents itself to him as self-

selection, the individual rather draws as far as possible from given social sources, and

appropriates and transforms these sources.376 He achieves his distinctiveness “not in the

deviation, but in the appropriation and nuance of that which he has in common with

everyone.”377

Nor do I want to suggest that the self-image is an entity similar to a law that the

individual hatches, fully formed, at a certain point in his life, ready to apply to future

decisions and assessments. Where it concerns questions of the personal identity formation

and preservation the positivist subsumption model is even more out of place than in the

legal context.378 “How can you learn to know yourself? By considerations never, but by

action.”379 Only my deeds teach me and others who I truly want to be. The “laurels of mere

willing” on the other hand “are dry leaves which have never been green.”380

In the course of its concretization and substantiation, a self-image takes shape—

always only temporary, and open to revision and modification—in the individual actions.381

In this respect, self-definition is not a singular act, but a process that accompanies everyday

practical life: vague, changeable, but nevertheless indispensable as a prerequisite for

personal identity.

The philosopher and sociologist Georg Simmel already analyzed the conflict

between the diverse, uncoordinated role expectations of modern people and their need for

unifying meaning at the beginning of the twentieth century. He understands this need as the

371 Honnefelder, supra note 3, at 26.

372 Id. at 53.


374 Luckmann, supra note 20, at 161.

375 Vesting, supra note 331, at 76.

376 See, e.g., Luckmann, supra note 20, at 98 et seq.

377 Ritter, supra note 154, at 34.


379 Goethe, supra note 276, at 93.


381 Honnefelder, supra note 3, at 82 et seq.


manifestation of a state which he calls “panbiotism” in reference to pantheism, which

connotes seeing the uniform totality of being in each of its components.382 Simmel is well

aware that life only possesses reality in the moment of the present. But he recalls that “this

moment is not isolated . . . , but connected with all others in absolute continuity.”383

According to him, this has the consequence that “every moment of life, every behavior and

action is the whole life.”384 “Even if the outward appearances of our behavior display

relatively sharp limits vis-à-vis each other, inwardly life is not composed of a lie, then a

courageous decision, then an excess, then a charity, etc., but it is a steady slide, in which

every moment represents the continuously forming, reshaping whole, no part possesses

sharp limits vis-à-vis the other, and everyone reveals his purpose only within that whole and

seen from it.”385

This purpose, however, is—according to Simmel—the result of a continuous

integrative process. Because man “feels himself to be the center who orders all life contents

around himself harmonically according to the logic of his personality,”386 he is invested in

a state of cultivation. “We are not yet cultivated by having developed this or that individual

bit of knowledge or skill; we become cultivated only when all of them serve a physic unity

which depends on but does not coincide with them.”387 From a terminological point of

view, Simmel’s explanations are still anchored in the idealistic new humanism which found

its exemplary expression in Schiller’s famous inaugural lecture.388 But in the matter at hand

they describe a task of undiminished topicality. They recently found an eloquent advocate

in the Munich philosopher Dieter Henrich. Simmel’s state of cultivation makes a return

under the term of “identity balance” in Henrich.389 This is based “on nothing else than on

the stability of being a subject in relation to all dimensions of life and of the presence of the

person in the world in which he is positioned.”390 How the person acts and how he

understands himself in his actions is, according to Henrich, “no less determined by this

process of the search for an inner balance in the modes of his co-existence than by the goals

he pursues in the performance of his roles.”391

The goal of an identity balance can only be approached by those who strive to

integrate the individual value convictions recognized by them into a coherent whole in their

382 Georg Simmel, Das individuelle Gesetz 209 (1987).

383 Id. at 207.

384 Id.

385 Id. at 188.

386 Georg Simmel, The Conflict in Modern Culture and Other Essays 40 (K. Peter Etzkorn trans., 1968).

387 Id. at 28.

388 Cf. Friedrich Schiller, Was heißt und zu welchem Ende studiert man Universalgeschichte?, in 4 Sämtliche Werke 753 (Gerhard Fricke & Herbert Göpfert eds., 6th ed. 1980).

389 Henrich, supra note 265, at 221.

390 Id. at 217.

391 Id. at 222.


judgments and actions.392 The American legal philosopher Ronald Dworkin has

emphatically called for such an effort. “Our convictions are initially unformed,

compartmentalized, abstract, and therefore porous. Responsibility requires us critically to

interpret the convictions that seem initially most appealing or natural—to seek

understandings and specifications of these initially appealing convictions with those two

goals of integrity and authenticity in mind. We interpret each of these convictions, so far as

we can, in the light of the others and also in the light of what feels natural to us as a suitable

way to live our lives.”393

The model of the identity balance therefore supplements the ontological holism,394

explained earlier, with an existential holism and, derived from it, a normative holism,

according to which every single obligation is mediated by its relation to all other possible

obligations.395

However, Dworkin himself sees that the individual person will probably never

succeed in completely fulfilling this integration task.396 Even the most consistent philosophy

cannot ignore the fact that, as the Zurich philosopher Michael Hampe states, human forms

of life are not organized in an inferential way, but resemble landscapes rather than theories.397

However, the criminal justice system is not just any life form. On the one hand it forms

one of those exceptional cases recognized by Hampe as well, with its intellectual topography

actually organized in the form of a theory.398 On the other hand, participation in the

administration of criminal justice has a prominent position within the overall identity of the

individual actor. Because his actions are not without consequences, but rather are to be

taken as a basis for deciding on the exercise of the state’s compulsory punishment, or (in

the case of the academic criminal law scholar) are to be taken as a basis in any case, and in

this way participate in the perpetuation of the entire system, he has a responsibility that

goes far beyond that of the ordinary scholar of the humanities.399 Nevertheless, declaring

that the effort to establish an identity balance is superfluous here would mean advocating

for an attitude of irresponsibility.

392 More detail in Brandom, Reason, supra note 43, at 35-38, 48-49 (2009); Brandom, Wiedererinnerter, supra note 46, at 152 et seq.; Ronald Dworkin, Justice for Hedgehogs 101 et seq. (2011); Nida-Rümelin, supra note 4, at 48.

393 Dworkin, supra note 392, at 108 et seq.


395 Brandom, supra note 46, at 154-55; Taylor, supra note 5, at 22-23.

396 Dworkin, supra note 392, at 109.

397 Hampe, supra note 22, at 149; see also Geuss, supra note 104, at 13 et seq.; Luckmann, supra note 20, at 68 et seq.; Seel, supra note 51, at 95.

398 Cf. Hampe, supra note 22, at 234.

399 Pawlik, supra note 31, at 43 et seq.


C. Living with Integrity as a Proto-Target

The “must” which has been mentioned repeatedly above has so far remained largely

under-determined in one important respect: does it express merely a duty of prudence for

the promotion of the individual well-being (understood in a broad sense) or a wholly valid

ethical obligation—ethics understood as the doctrine of the right way of life?400 Only the

first interpretation is compatible with the mainstream of today’s practical philosophy, which

rejects the so-called obligations toward oneself. Dworkin, on the other hand, pleads for the

second reading.

In contrast to numerous other contemporary philosophers who strive for direct

access to the modern guiding value of freedom,401 Dworkin bases his last great work, Justice

for Hedgehogs, on the “Greek ideal” of a successful way of life as shaped by the pursuit of

integrity.402 In Dworkin’s words, “[H]e has the personal responsibility to create that life

through a coherent narrative or style that he himself endorses.”403 This effort is so important

to Dworkin that he raises it to the object of an ethical obligation.404 He rightly points out

that without the acceptance of such a duty against ourselves, the basic category of our

practical relationship with ourselves—self-respect—would have feet of clay.405 In being

kind to myself, I may like myself, but I can’t respect myself. I can only show respect for

myself if I can recognize the answer I gave in my actions to the question “Who do I want

to be?” as good and reasonable,406 and if I therefore find something general reflected in my

life, faint as this reflection might be. The demand for an integral way of life, an identity

balance, is literally the most basic of all duties; for this reason the Tübingen philosopher

Otfried Höffe calls it the “Proto-Should.”407 The construction of all practical philosophy—

including a philosophically reflected understanding of criminal law—rests on this duty.

D. Criminal Law Scholarship Between Self-Encapsulation and the Need for Integration

Of course, I don’t wish to speak in favor of a comprehensive moralization or

politicization of criminal law. One of the most important virtues of the jurist is the “ethical

discipline and self-denial” already invoked by Max Weber, which expresses itself in carrying

out even normative specifications that seem wrong to him as if they corresponded to his

own conviction.408 Möllers therefore rightly calls it one of the punch lines of every modern

400 I have adopted this concept of ethics from Dworkin, supra note 392, at 30.

401 E.g., Axel Honneth, Freedom’s Right 15 et seq. (Joseph Ganahl trans., 2014).

402 Dworkin, supra note 392, at 19.

403 Id. at 204.

404 Id. at 196.

405 Id. at 203.


407 Otfried Höffe, Kritik der Freiheit 356 (2015).

408 Max Weber, Political Writings 331 (Peter Lassman & Ronald Speirs trans., 1994).


legal system to immunize itself against philosophical questions of a very fundamental

character by using procedural rules and organizational structures;409 even Dworkin accords

considerable weight to the aspects of political authority and judicial reliability.410

As in the previous section, I am only concerned here with revealing the

shortcomings of a naive-positivist understanding of the application of criminal law. The

positivist assertion of a strict separability of legal and moral statements is, in my opinion,

no less misguided than the existence of independent language rules presupposed by the

positivist subsumption model.411 Since the professional users of criminal law are not only

jurists, but, as Binding states, are also, as it were, human beings,412 they must strive for the

establishment of an identity balance. The field of practical reasoning does not display any

abrupt discontinuities, but, as Dworkin puts it, a “tree-like structure.”413 Therefore, an

adequate conception of criminal law cannot be achieved by its isolation from the ideological

and political culture of its social environment, but on the contrary only by the penologists

trying to find the best possible justification for their reasoning and evaluation practices

within the framework of this broader network of social and political standards.414 In this

(and only in this) sense can the law be described as “a special form (increased and

characteristically articulated in the rule of law) of politics.”415

In view of this connection, it is not only unavoidable but also legitimate that

criminal law should not merely transcend the repertoire of positive legal material and the

established rules of its interpretation in individual areas—preferably when dealing with

political disasters and filling in indeterminate legal concepts. By endeavoring to connect the

thought processes of the particular scientific discipline of criminal law dogmatics to a

comprehensive understanding of the human reality of life, it is defined from the outset by

the adoption of a perspective which transcends the positivist one. The positivist separation

thesis, according to which law and morality are completely independent of each other, is

thus, as it were, exploding from within.

Criminal law scholarship therefore oscillates in a tense relationship between

disciplinary self-encapsulation and an excessive need for integration, which arises from the

conflict between the two major social tendencies of professionalization on the one hand

and individualization on the other. In dogmatic everyday business, this tension is unnoticed

and should remain unnoticed as a rule.416 However, the stubbornness with which the basic

409 Möllers, supra note 34, at 39; see also Neumann, Recht, supra note 307, at 277.

410 Dworkin, supra note 392, at 695. This is neglected in Möllers’s critique of Dworkin. See Möllers, supra note 34, at 298 et seq.

411 See also, in substance, Somek & Forgó, supra note 299, at 104 et seq.

412 Cf. 1 Karl Binding, Strafrechtliche und strafprozessuale Abhandlungen 4 (1915).

413 Dworkin, supra note 392, at 20, 685.

414 Id. at 684.


416 Stanley Fish, Das Recht möchte formal sein 272 et seq. (Heinz Bude & Michael Dellwing eds. & trans.,


questions of criminal law—such as the guiding categories of the general doctrines of

criminal law and the legitimation of punishment—are constantly disputed anew can, in my

opinion, only be explained by the effort of the participants to set the values and figures of

argumentation of criminal law in the best possible, most convincing relation to more

extensive conceptions of world interpretation and life orientation.417 This is precisely what

I have described above as the need for an identity balance.

VI. Taking Each Other Seriously

Ultimately, the controversy between the theory of retaliation and the theory of prevention

goes back to the question of who we want to be, as individuals and as a group. The

prevention theories amount to integrating criminal law into a comprehensive regime of

hazard prevention and behavior control,418 and therefore reduce the identity of the

addressees of norms to the conditions of their effective tractability.419 There is therefore a

relationship of both ontological and normative inequality between knowledgeable leaders

and those who, for the sake of the common good, are guided as expediently as possible. A

highly dubious expertocratic elitism is expressed in it, which did not go unnoticed in the

discussion of the theory of punishment,420 but is hardly ever made a theme in its full scope.

Contrary to the subcutaneous contracted Platonism of the teachings on prevention, the

considerations I have presented here are based on a decidedly anti-elitist attitude.421 In

contrast to Plato, and following on from Kant and Hegel,422 what counts is “no esoteric

special knowledge, but only that general reason which everyone has at his disposal, even if

it is only darkly.”423

This is the reason why I am convinced that, in order to be able to comprehend the

sequence between crime and punishment adequately, we first need an adequate concept of

what constitutes an acting subject and how individual acts are suspended (aufgehoben) by

collective practices—consistent with Hegel’s double sense of “to put an end to” and “to

keep.”424 It should be noted that this understanding should not only apply to the delinquent,

but also to the person making the judgment, without becoming entangled in a contradiction.

2011); Somek & Forgó, supra note 299, at 22 et seq., 148 et seq.

417 See also Pawlik, Nutzen, supra note 264, at 373 et seq.

418 On this point, see the essays by Tobias Singelnstein, Johannes Kaspar and Boris Burghardt in Strafrecht im Präventionsstaat 41 et seq., 61 et seq., 83 et seq. (Beatrice Brunhöber ed., 2014).

419 Pawlik, supra note 31, at 82 et seq.

420 Consider also Binding’s polemic against von Liszt’s concept of specially preventive punishment (see Pawlik, Gewaltige, supra note 150) and the objections to the theory of positive general prevention (Pawlik, supra note 31, at 81 et seq. with further references).


422 Cf. Kant, Critique of Practical Reason, supra note 224, at 7; Hegel, supra note 58, at 10 et seq.

423 Otfried Höffe, Kants Kritik der praktischen Vernunft 31 (2012) (with reference to Kant).

424 Cf. Hegel, supra note 55, at 81.


In the course of my text, I have attempted to explain what this understanding looks like as

I see it. Even before our separation into criminally delinquent individuals and those who

punish them, we are accordingly beings taking positions, moving in complex symbolic

systems—in short (and spoken analogously to Martin Seel): we are definitive determiners.425

Therefore, in my opinion, only a theory of punishment that takes us seriously in our ability

to take a stand, and thereby, to determine ourselves and our world, albeit against the

background of what is unattainable, can satisfy us. I hope that the retaliation theory of

punishment which I have proposed can achieve this. However, I would at least like to pave

the way to a discussion that breaks away from the ping-pong game of two buzzwords—

“retaliation” on the one hand and “prevention” on the other—and reconsiders the problem

of the justification of punishment in all its complexity.

425 Seel, supra note 51, at 146 et seq., 285 et seq.

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