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7 Critical Analysis L. 1 (2020)

handle is hein.journals/cclaysolw7 and id is 1 raw text is: Norm Confirmation and Identity Balance: On the Legitimacy of Punishing Michael Pawlik* Abstract Why is the State allowed to punish? This is the prominent question underlying every serious examination of criminal law. The author's answer covers a broad range of fundamental legal issues. Following the republican idea of freedom, he conceives punishable wrongdoing as a violation of the duty to contribute to the maintenance of the legal system. In its practice of punishment, the legal community demonstrates the correlation between the performance of the citizens' duty of cooperation and their enjoyment of personal freedom. Nevertheless, practitioners of criminal law cannot escape their responsibility for the hardships associated with the imposition of punishments. They cannot help but strive for a balanced relationship between their professional activities and their personal integrity. With its combination of arguments from the fields of philosophy and of the theory of crime, this article is the result of the author's long-term examination of the fundamental issues of criminal law. I. Acting A. Beethoven and Goethe, Acting In July 1812, there were several encounters in the Bohemian health resort of Teplitz between Goethe and Beethoven. These are well-known, mainly due to an anecdote transmitted by Bettina von Arnim.1 While the two great men were out walking together, they were approached by the imperial court with the empress and dukes. Beethoven then said to Goethe: Let us walk on, arm in arm. They will have to get out of our way, not we out of theirs. Goethe neither agreed with this nor felt comfortable about it. He let go of Beethoven's arm and stood to the side with his hat off, while Beethoven walked between the dukes with his arms folded. Like many good anecdotes, this one is almost too good to be true. In any case, even if its historical truth is doubtful, it gives the imagination ample scope. You can practically see Beethoven and Goethe in front of you. On the one side, the revolutionary, as Romain Rolland put it, in constant fighting mode, mindful of his conviction that there are many kings in the world, but only one Beethoven, marching grimly * Professor of Criminal Law, Criminal Procedural Law and Legal Philosophy, Albert-Ludwigs-Universitat, Freiburg im Breisgau, Germany. The German original of this text appeared as Normbestatigung und Identitatsbalance: Uber die Legitimation staatlichen Strafens (Nomos 2017); the English translation was prepared by Linguamon GmbH (Berlin). I am following the description by Romain Rolland, Goethe and Beethoven 49 et seq. (G.A. Pfister & E.S. Kemp trans., 1931). I would like to thank Lambert Bumiller for referring me to this wonderful book. ISSN 2291-9732

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