PPawlik on the Excuse of Necessity and the Restriction of Legal Interests in the German Criminal Code

Abstract

In the last decade, Michael Pawlik has become one of the leading figures in the field of Criminal Law in Latin America and Spain, partly because of the way in which he has combined a deep philosophical analysis with a thorough approach to the specific problems of the general part of criminal law. This paper will try to show, first, how useful this methodology can be, based on a reconstruction of Pawlik’s analysis of the foundations of the legal figure of necessity (as an excuse). And,  secondly, that his theoretical model has a much more important critical potential than even the author himself has recognized. In order to show the latter, a specific problem will be addressed: the restriction of legal interests that can be defended in a situation of necessity according to § 35 para. 1 StGB. In particular, it will be argued that Pawlik’s legal foundations, based to a large extent on considerations of theory of freedom, allow attractive conclusions to be reached both de lege lata and de lege ferenda.