Gibt es den strafrechtlichen Paternalismus? Ein Beitrag zu den Prinzipien der Kriminalisierung

Abstract

German translation of "ESISTE IL PATERNALISMO PENALE?
 UN CONTRIBUTO AL DIBATTITO SUI PRINCIPI DI CRIMINALIZZAZIONE" (originally published in Rivista italiana di diritto e procedura penale, 2014, pp. 1209-1248). A discussion on whether the so-called criminal paternalism is compatible with the fundamental assumptions of liberalism has been going on for a long time. The aim of this article is to show that criminal paternalism is actually not an autonomous principle of criminalization. Upon making a distinction between tutelary and despotic paternalism, this paper shows that the former is a manifestation of the principle of harm, while the latter is only apparently opposed to liberalism. Indeed, the criminal norms that usually seen as tokens of it are instead expressions of either legal moralism (and should be dealt with as such) or (as is the case with tutelary paternalism) of the principle of harm. In the latter cases, the problem is that the principle of harm itself offers a far less stable ground for criminalization than anti-paternalists seem to believe. The article also provides a critical account of the anti-paternalists' view on consent. The conclusion is that what the debate on criminal paternalism actually calls for is a thorough discussion on whether indi- viduals have a "right to make mistakes" (even when such "mistakes" consist in self-harm).