Law & Society Blog

I posted a draft review article of Michael Pawlik’s book Person, Subjekt, B??rger (Person, Subject, Citizen) on SSRN. Here is the abstract:

It is a hallmark of modernity that the protection of individual freedom, however defined, has replaced justice as the primary criterion for the legitimacy of government. Criminal punishment, as one of the most drastic exercises of governmental authority, must therefore also be held against that standard. The resulting problem is that the diminution of freedom through punishment must at the same time be justifiable as a realization of freedom. As long as the loss of the freedom of the criminal is traded off against gains in the protection of everyone else’s freedom, consequentialist accounts provide an intuitively appealing justificatory strategy (vicarious justification). But if we require that for complete justification, freedom must not only be realized for everyone else but also in the person of the criminal, a more sophisticated and inclusive strategy is required. Michael Pawlik’s theory of punishment, as presented in his book Person, Subjekt, B??rger (Person, Subject, Citizen), responds to that challenge by presenting a retributive theory of punishment, rooted in an original reading of Hegel and Fichte, whose concepts of the subject and of recognition Pawlik recasts in the framework of a theory of communication. Pawlik succeeds in presenting an original, philosophically sophisticated and practically useful three-prong concept of the criminal wrong, grounded in a theory of the subject and of society that should be attractive to both consequentialists and non-consequentialists.

More on the critically important questions of interpersonal and institutional recognition can be found here (in German). The article will be published in the next volume of the Buffalo Criminal Law Review, so if you have any comments or suggestions, please send me an email.

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