Citizen Sacrifice

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The term of the citizen victim is in the philosophy of law , a victim of his own life understood by a civil discussion that the state in an emergency of this call may want.

Reason

The assumption of an obligation to make a citizen sacrifice is based on the so-called conservative state doctrine . This stands with an organic-historical justification of the state next to the so-called doctrine of the State Treaty , first represented by Hobbes in the Leviathan (1651), which represents a rational-mechanical justification. It is based on the "alternative state mode of existence of the human being" and understands the state as "an entity which precedes every individual agency".

The obedience of the citizen is "linked de facto to the event and confirmed membership in the political community." So you can be on this basis - by an implied contract not to a duty to citizens victims think if an existential threat to the state differently - legitimated is avertable.

history

This understanding of the state can already be found in principle in Plato , who has Socrates say: “But whoever of you stayed [in the city] after seeing how we settle the legal cases and otherwise administer the city, we then claim that he swore to us by the deed, what we will always command, he wants to do "

The idea of ​​a duty to sacrifice for the common good goes back to Aristotle , who saw the citizen of the polis as committed to it as he only existed as part of it; if the existence of the polis was at stake, he would have to risk his existence for the polis.

In the early modern period, the concept was first taken up by Hobbes , who justified it through the "connection between protection and obedience". Rousseau also refers to this connection when he writes: “Whoever wants to preserve his life at the expense of others must give it up for them as soon as necessary. The citizen is therefore no longer the judge of the danger to which he should expose himself at the request of the law; and if the prince has said to him: "Your death is necessary for the state", he must die, since he has only lived in safety on this condition, and his life is no longer exclusively a benefit of nature, but a conditional one is an approved gift from the state. "

Kant finally connects the justification of the sacrifice of life in war - a paradigm for a citizen sacrifice - with the position of the human being as an end, not as a means: the citizen, that in a war, which he does not himself (through his representatives) and in free decision agreed, is not recognized as an end, but only used as a means. Conversely, the citizen, from whom a sacrifice is demanded, is then not used as a mere means, but seen and respected as an end if this happens under a law to which he has or would have consented.

Even Hegel affirms the civil victims: "[...] because it is not in the arbitrariness of individuals to separate from the state, because you have the same citizens to the nature side is."

Carl Schmitt was one of the last great state thinkers who considered civil sacrifice to be unquestionably permissible: "Political unity may have to demand the sacrifice of life."

In the present, the constitutional lawyer Otto Depenheuer argued explicitly for the citizen sacrifice. For Depenheuer, the state is an unavailable, existentially necessary solidarity association. In times of danger, the citizen fulfills his purpose in life by sacrificing himself for this state. In the borderline case, the state organs should demand the citizen's sacrifice as an expectation of loyalty.

Current discussion: Aviation Security Act

Most recently, the idea of ​​citizen sacrifice was taken up in the context of the constitutional and philosophical discussion about the Aviation Security Act (LuftSiG). The constitutional law professors Otto Depenheuer and Matthias Herdegen supported the thesis. The hijacking of an airplane by terrorists who wanted to steer it into a high-rise, for example, is a "situation of elementary threat to the community" in which the citizen's sacrifice can be demanded as an expectation of loyalty. For Depenheuer, the shooting, which is provided as a last resort in Section 14 (3) of the Aviation Security Act, is not a disregard for the dignity and personality of the passengers, but resolves "a tragic conflict situation: defense or self-abandonment of the community." In their hopeless situation, by prohibiting shooting, "the last remaining dignity to sacrifice themselves for the community in a situation of extreme and hopeless danger" was taken. In support, Depenheuer refers to the decision of the Federal Constitutional Court on the kidnapping of Hanns Martin Schleyer , which states: "The Basic Law establishes an obligation to protect not only the individual but also all citizens as a whole."

The justification of the Aviation Security Act based on the idea of ​​an obligation to make a citizen's sacrifice is nevertheless diametrically opposed to the current position of the Constitutional Court . According to the court, the (innocent) victims of a shooting were “reified and at the same time deprived of their rights because their killing is used as a means to save others; as their lives are unilaterally disposed of by the state, the aircraft occupants, who themselves need protection as victims, are denied the value that humans have for their own sake. ”It is therefore“ absolutely inconceivable under the validity of Art. 1 Para. 1 GG, on the basis of a legal authorization to intentionally kill innocent people who, like the crew and passengers of a hijacked aircraft, find themselves in a hopeless situation [...]. "The court is thus referring to the object formula , according to Art. 1 para. 1 GG protect everyone from being exposed to treatment that fundamentally questions their subject quality and makes them a mere object of state action.

According to Depenheuer, however, the formula fails a priori in this constellation; according to Schlink , it only does half justice to Kant's teaching, to whose prohibition of instrumentalization it is attributed.

On the theory of a citizen victim, the Federal Constitutional Court further stated: “The idea that the individual is obliged, in the interests of the state as a whole, to sacrifice his or her life if only in this way is possible to protect the legally constituted community from attacks that lead to its collapse and aiming at destruction [...] also leads to no different result. [...] Because within the scope of § 14 (3) Aviation Security Act, it is not a question of defending against attacks aimed at the elimination of the community and the destruction of the state's legal and freedom order. [...] Under these circumstances, there is no room for accepting an obligation to pay a liability in the sense set out above. "The extent to which an obligation to make a citizen sacrifice can exist in other cases, however, is expressly left open by the court:" The Senate does not need to decide whether and possibly under what circumstances the Basic Law over and above the protective mechanisms created with the emergency constitution does such a solidarity-based liability obligation [sc. the obligation to make a citizen sacrifice] can be found. "

literature

  • Bernhard Schlink: The victim of life , in: Merkur 99 (2005), 1021-1031.
  • Otto Depenheuer: The citizen victim in the rule of law , in: Ders. (Ed.): Staat im Wort - Festschrift for Josef Isensee , CF Müller, Heidelberg 2007, ISBN 3-8114-5362-9 , pp. 43–60.
  • Otto Depenheuer: IV. Das Bürgeropfer , in: Ders .: Self-assertion of the legal state , Verlag Ferdinand Schöningh, Paderborn 2007, ISBN 978-3-506-75743-2 , pp. 75-100.

Individual evidence

  1. ↑ a b c Otto Depenheuer: The citizen victim in the rule of law , in: Ders. (Ed.), Staat im Wort - Festschrift for Josef Isensee, 2007, 43 (51).
  2. ^ Otto Depenheuer: Solidarity in the constitutional state. Outlines of a Normative Theory of Distribution , 1992, 279.
  3. ↑ Otto Depenheuer: The citizen victim in the rule of law , in: Ders. (Ed.), Staat im Wort - Festschrift for Josef Isensee, 2007, 43 (52).
  4. ↑ Plato: Crito , 51e.
  5. ↑ Bernhard Schlink : The Sacrifice of Life , in: Merkur 99 (2005), 1021 (1024).
  6. ↑ a b Bernhard Schlink: The Sacrifice of Life , in: Merkur 99 (2005), 1021 (1025).
  7. ^ Jean-Jacques Rousseau: The social contract , 1762, second book, 5th right over life and death , p. 65.
  8. ↑ Georg Wilhelm Friedrich Hegel : Basics of Philosophy of Law , 1821, § 75 addition, in: Werke , Vol. 7 (1975), 159.
  9. ↑ Carl Schmitt: The concept of the political , Berlin 1963, 70.
  10. ^ Term in Gerd Roellecke : Staat und Tod , 2004, 100. There, however, it says: “A legal or moral claim to it [sc. however, the state cannot have the citizen sacrifice]. [...] In a modern society, willingness to die must be thought of as a case of loyalty. "
  11. ↑ a b Otto Depenheuer: The citizen victim in the rule of law , in: Ders. (Ed.), Staat im Wort - Festschrift for Josef Isensee, 2007, 43 (55).
  12. ↑ Similar to Rolf Schmidt: Unconstitutionality of the Aviation Security Act  ( page can no longer be accessed , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF; 102 kB), 2006, 7: “A measure leading to the death of the passengers, which is at issue here, is aimed solely at averting an even greater catastrophe. This has nothing to do with inhuman behavior, even if the death of innocent people is necessarily accepted. "@1@ 2Template: Toter Link / www.verlag-rolf-schmidt.de  
  13. ↑ Otto Depenheuer: The citizen victim in the rule of law , in: Ders. (Ed.), Staat im Wort - Festschrift for Josef Isensee, 2007, 43 (56).
  14. ↑ Otto Depenheuer: The citizen victim in the rule of law , in: Ders. (Ed.), Staat im Wort - Festschrift for Josef Isensee, 2007, 43 (58).
  15. ↑ BVerfGE 46, 160 (Schleyer) .
  16. ↑ BVerfGE 46, 160 (Schleyer; 165) .
  17. ↑ BVerfGE 115, 118 (Aviation Security Act) .
  18. ↑ BVerfGE 115, 118 (Aviation Security Act) , C. II. 2. b) bb) aaa).
  19. ↑ BVerfGE 115, 118 ( Aviation Security Act) , C. II. 2. b) bb) ccc).
  20. ↑ Volker Epping : Grundrechte , 3rd edition 2007, Rn. 581.
  21. ↑ Otto Depenheuer: The citizen victim in the rule of law , in: Ders. (Ed.), Staat im Wort - Festschrift for Josef Isensee, 2007, 43 (57).
  22. ↑ Bernhard Schlink: The victim of life , in: Merkur 99 (2005), 1021 (1026): “The whole [highlighted. not in the original] Kant is not only concerned with self-protection, but with self-legislation. For him, the person to whom something is expected or demanded, also the person who is expected and demanded a sacrifice, is then not taken as a means, but seen as an end and his dignity is respected if he brings it under a law of his own has consented or, if it has not become the subject of his consent, would have consented if it had become so. "
  23. ↑ Immanuel Kant: The Metaphysics of Morals. Second part: Metaphysical foundations of the doctrine of virtue , 1797, § 38: “Humanity itself is a dignity; for man cannot be used by any man [...] merely as a means, but must at all times at the same time as an end and that is his dignity. "
  24. ↑ See Horst Dreier , in: Ders. (Ed.): Basic Law - Commentary, 2nd edition 2004, Art. 1 I Rn. 53
  25. ↑ a b BVerfGE 115, 118 ( Aviation Security Act) , C. II. 2. b) bb) ccc) (4).