Rebels, bandits and intriguers – why germans are having a debate on “enemy criminal law” in the 21st century: and thus are falling behind the dramaturgy of enlightened theatre of the late 18th century – to think Schiller’s bandits

AutorMonika Frommel
CargoDirector of the Institute for Criminology of the University of Kiel, Germany
Páginas75-86

    Also published in: “Please keep calm” – Life in Enemy Criminal Law, edited by Thomas Uwer / bureau of organization, criminal defence lawyer series, Berlin 2006.

Page 75

“Enemy Criminal Law” is an aggressive way of controlling so called “dangerous subcultures”, such as fighting organized crime, especially terrorists. By the majority, this judgmental term is used in order to express critique towards it. Some authors consider the overall control of organized crime part of these provocative terms and thus, in my opinion, become hypercritical1.

One author only, Günther Jakobs, keeps considering this attribution (ascription) a description and his absurd thesis is drawing a lot of media attention. The debate seems to ask for an avowal: does one grieve this development or accept it as inevitable, if possible because the binning of certain controlling styles in this muddy area – Jakobs would even try to avoid this value judgment – is perceived as the lesser of two evils compared to the “contamination” of all action criminal law by combat strategies against “dangerous” people.

In the following, I will not take a shortcut to critique this construction from today’s point of view but I will take the long way. How – I am wondering – would enlightened idealists have reacted on such a construction around 1800? Would it have been conceived as a commitment to the older “Polizeyrecht” and thus as an attack to the ideas of the constitutional state, which were considered important at that time? To give an answer to this, I will illustrate the long-term effects traditions, which led to thePage 76 classic action criminal law after 1945 and which are waved good-bye by Jakobs, even though he seems to want to keep up some kind of normal constitutional state prosecution. The one saying “friend” and “foe” should also recognize that power over the state of emergency, i.e. the power to define the “foe” in our world view is crucial to the character of criminal politics.

Continuously, “ascriptions of the enemy” have been made in Europe over the last two centuries in spite of the tendency to commit to a liberal action criminal law. In any of those phases relevant to our criminal law culture there was a specific “enemy” that was “fought” against. The perceiving of threats and combat scenarios seems to be typical for modern criminal law.

1. Normative functionalism: strategies to politically control people who turn down the particular criminal law norm structure

To demonstrate that the differences which were introduced by Jakobs are created by his understanding of criminal law, I will make a short remark on the significance of these theses within his complete works. Retrospectively, the affirmative application of the construction of the “citizen- and enemy” - criminal law fits the constant keeping up of a general preventative model of criminal law2. The ones considering norm stabilization the “reason of criminal law” – in archaic terms - need to have a factual right to protect which focuses on certain people. Normative functionalism then allocates – examining neither the empirical question of necessity nor the normative question of commensurability nor the sociological question on finding alternatives to his way of controlling – functions to every single legal area and leaves the regulation necessary to fixate norm stabilization and risk minimizing to the legislator. The missing of a general normative limitation of the state’s right to ignore individual rights with respect to security and risk minimizing is characteristic. In functionalism’s gutsy words: If necessary (politics), it is prior to fulfil the purpose of norm stabilization and succeed in averting danger.

Jakobs worked out a consequently functionalist concept concerning the purpose of penalty from 1976 to 1983 and focused on the AT (general part) of the StGB (German Criminal Code) which itself is constructed in a functional and criminal law dogmatic way. Later, he merely modified it. The provocative summing up of dazzling theses on enemy criminal law since 1985 was not expected to be as fierce from the beginning, but neither do these theses on modern extra criminal law contradict the complete works. They seem to have evolved due to a culture where outbidding and exaggerating are permanent, which also includes the aiming towards attention fromPage 77 the audience by speaking publicly and stage-managing oneself. That’s when different styles of hypercriticism worded with relish and the anti-presentation of a radical anti-reformation come up. I do not want to take part in it but bring closer to the parties of the dispute the historical texts which are the basis for the stereotypical “citizen” and “foe” and the particular criminal law. In the 20th century, they are the image of a “normal-” and a state of “emergency”. I will skip the parallel to Carl Schmitt imposing itself and go back further into history because of the sad fact that in the 1930ies, hardly anybody represented the “liberal action criminal law”. The only thing to be shown is how it was easy and convenient to set up illiberal concepts of delinquent- and enemy criminal law and leave power to the lawless and folkish national socialists and the opportunistic decisionists. Biological criminologists and all the ones who merely wanted to identify normative types of delinquents in order to set up a list of all “foes” which had to be eliminated did not encounter nameable resistance. That is why I will keep those memories (which seduce to make use of killer phrases) in the dark and will look for texts which may unemotionally illustrate the problem which came up once more.

2. Classes of treaties and the “criminal’s lawlessness”

Jakobs’ theses are based on Fichte. This is exceptional and may be related to the fact that Fichte is the only follower of German Idealism who, in the former model treaty dialect, thought about belonging to civil society or not and connected those thoughts to the purpose of penalty. Penalty (as a reaction to heavy norm violation) is one way of exclusion from civil society, according to Fichte. It is obvious for an author who was skilled in Luhmann’s theses on in- and exclusion to become alert when receiving this model. Superficially, Fichte is a rather harmless philosopher whose name is associated with pathos of freedom and German Idealism. But the time has come to interpret Fichte’s modified treaty construction, which was Hobbes-oriented, in the historical context and ask: Of what significance were Fichte’s conceptual stipulations at his time?

To give a hint on the conclusion: Treaty constructions and categories such as belonging or exclusion are terrifically suited to serve as a basis for enemy criminal law and not for constitutional criminal law. At Fichte’s time, limitation of governmental power was predominant. Also, Fichte was an outstanding personality. He did not invoke on Hobbes and the then dominating doctrine of treaties coincidentally. Creation myths of treaties may be suitable to be put in a speech on the German nation. Those constructions could become more usable if one was interested in the democratic self-conception of a certain society, considering that the rule of majority favours the exclusion of minorities. But the question desperately needing an answer at that time, the limitation of governmental power, did not catch Fichte’s interest at all. What does that mean? At first, it clarifies that there is a long-term effect of traditions constructing “friends” / formerly “citizens”, later on “comrades” on the one and “foes” / “rebels” and, since 1933, “inferiors” on the other side. Let us go back to the turn of the century from 18th to 19th because the argumentations from 1933 on serve as killer phrases which I would like to keep in the background.

Dealing with Fichte and his theses of the “criminal’s lawlessness” is more than uncommon for someone who wants to historically reconstruct modern criminal law science. Fichte was a philosopher and theologian who examined law along the wayPage 78 because natural justice was modern at that time, the amount of natural justice systems was...

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