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Pawlik Recension Par Kaiser PDF
Pawlik Recension Par Kaiser PDF
BOOK REVIEW
Partner, Latham & Watkins LLP, New York. Adjunct professor, Benjamin
N. Cardozo School of Law. All opinions expressed in this article are mine alone.
1. Michael Pawlik, Person, Subjekt, Brger: Zur Legitimation von Strafe
(2004). All translations are mine; internal citations have been omitted.
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4. Note that individuals are never solely persons or entirely subjects. Rather,
they are persons in some respects and subjects in others, a mix that will likely be
unique for each individual.
5. Note that acting from duty is not required; only actions according to duty
are (84). See also Immanuel Kant, The Metaphysics of Morals 6:219 (Mary Gregor
ed. & trans., 1996) (1797). (That lawgiving which makes an action a duty and
also makes this duty the incentive is ethical. But that lawgiving which does not
include the incentive of duty in the law and so admits an incentive other than the
idea of duty itself is juridical.).
6. A general duty of minimal assistance is a requirement of German but not
of U.S. criminal law. See Strafgesetzbuch [StGB] [German Penal Code] Nov. 13,
1998, Bundesgesetzblatt, Teil I [BGBl.] 3322, 323c, translation available at
http://www.iuscomp.org/gla/statutes/StGB.htm#323c (last visited August 1, 2005).
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7. For a similar view of the interpersonal aspect of the criminal wrong, see
Jean Hampton, Correcting Harms versus Righting Wrongs: The Goal of
Retribution, 39 UCLA L. Rev. 1659, 1677 (1992) (A person behaves wrongfully in
a way that effects a moral injury to another when she treats that person in a way
that is precluded by that persons value, and/or by representing him as worth far
less than his actual value; or, in other words, when the meaning of her action is
such that she diminishes him, and by doing so, represents herself as elevated
with respect him, thereby according herself a value that she does not have.).
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In a nutshell:
11. The excessive punishments meted out in the war on drugs or the near-
permanent exclusion of sex offenders and other undesirables from society come to
mind.
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12. See, e.g., Joel Feinberg, Doing and Deserving 100 (1970) (To say that the
very physical treatment itself expresses condemnation is to say simply that
certain forms of hard treatment have become the conventional symbols of public
reprobation.).
13. See, e.g., Anthony Skillen, How to Say Things with Walls, 55 Phil. 509,
517 (1980) (Feinberg vastly underrates the natural appropriateness, the non-
arbitrariness, of certain forms of hard treatment to be the expression or
communication of moralistic and punitive attitudes. Such practices embody
punitive hostility, they do not merely symbolize it.).
14. See, e.g., Uma Narayan, Appropriate Responses and Preventive Benefits:
Justifying Censure and Hard Treatment in Legal Punishment, 13 Oxford J.Legal
Stud. 166, 181 (1993) (noting that hard treatment can function so as to provide
these moral agents with additional prudential incentives for not breaking these
laws, given the facts of human frailty and proneness to temptation). See also
Andrew von Hirsch, Censure and Sanctions (1993).
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15. One possible framework for such exploration has been suggested by
Charles Taylor, Hegel 11-29 (1975). Taylor contrasts the nominalist approach to
meaning with an anthropological and linguistic theory of self-expressive conduct.
16. See also Kaiser, supra note 9, at 37-39. Pawlik correctly identifies theories
of positive general prevention as explanatory, rather than justificatory in nature
(39-43).
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17. See, e.g., Thomas Hobbes, On the Citizen ch. 1, para. 7 (Richard Tuck &
Michael Silverthorne eds. & trans., 1998) (1641) (Amid so many dangers
therefore from mens natural cupidity, that threaten every man every day, we
cannot be blamed for looking out for ourselves; we cannot will to do otherwise. For
each man is drawn to desire that which is Good for him and to Avoid what is bad
for him and most of all the greatest of natural evils, which is death; this happens
by a real necessity of nature as powerful as that by which a stone falls
downward.).
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18. In fact, one might argue that, in a multicultural, multiethnic, and highly
differentiated society, it is neither possible nor desirable to have a legislator
identify a set of common purposes beyond a certain minimum level of physical
safety. Depending on the degree of societal differentiation, the commonality of
such purposes is bound to be restricted to the shared preferences of the largest
and/or most influential minority.
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IV. SUMMARY
19. See, e.g., Robert Nozick, Anarchy, State, and Utopia (1974). For a radical
version of the argument that all traditional functions of government can better be
performed through private arrangements, see David D. Friedman, The Machinery
of Freedom (2d ed. 1989).
20. Thomas Hobbes, Leviathan ch. 13, para. 8 (1996) (1651).
21. See, e.g., Robert Ingelhart & Wayne E. Baker, Modernization, Cultural
Change, and the Persistence of Traditional Values, 65 Am. Soc. Rev. 23 (2000);
Dan M. Kahan & Donald Braman, More Statistics, Less Persuasion: A Cultural
Theory of Gun-Risk Perceptions, 151 U. Pa. L. Rev. 1291 (2003).
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22. In other words, the question is whether difference or unity should be at the
center of political philosophy.