Solidaridad como categoría de legitimación jurídicopenal: El ejemplo del estado de necesidad agresivo justificante

Abstract

The justifying «aggressive state of emergency» (section 34 of the German Criminal Code/StGB) is a challenge to liberal criminal legal Systems, as it imposes a legal obligation to tolerate an intrusion into his own legal sphere onto an innocent bystander. This obligation is traditionally based on the notion of «weighing of interests», which is, however, not convincing due to the utilitaristic structure of this idea. More recently, the topos of «solidarity» has replaced the traditional approach as a basis of legitimation, but this topos is not more than a mere catchphrase, as long as it lacks a reasonable justification. To close this justification gap, it is widespread to use prudential considerations. Accordingly, it is prudent for every citizen to agree on a rule along the lines of section 34 StGB with his fellow citizens, for the sake of minimizing his own risks of life. But this approach cannot convincingly answer the question regarding the reason for the obligation imposed by the «state of emergency» rules. Additionally, it falsifies the quality of legal wrong that a citizen commits by breaching his obligation during the state of emergency. Therefore, this essay suggests to see the «offender» who is justified by a state of emergency as representative of the State’s caring society (staatliche Solidargemeinschaft). The right to solidarity, that can be claimed by any citizen in a state of emergency, is directed against his fellow citizens as a whole, just as in all other cases of need through no fault of one’s own. The precise individual person the duty is actually imposed onto is merely a «transit station». Therefore, only such duties may be imposed onto him that can be compensated afterwards, and the community must also ensure that such compensation actually takes place.