Die Widernatürliche Unzucht. Ein Beitrag zur Kritik des deutschen Strafrechts.
Inaugural Dissertation for the Doctorate in Law at the High Juridical Faculty of the Ruprecht Karl University of Heidelberg, submitted by Mathias Kohan-Bernstein.
[No date. About 1910?]
Chapter I. Legal Theoretical Premises 7-13
Chapter II. Morality and Crimes against Morality 13-17
Chapter III. Unnatural Sexual Offense in General 17-27
Chapter IV. Homosexual Activity and Contrary Sexual Feeling 38-36
Chapter V. Conflict between the Current Views 36-64
§ 1. Metaphysical Views 38-46
§ 2. Moral Views 46-51
§ 3. Social Views 51-64
Chapter VI. Qualified Forms of Unnatural Sexual Offense 65-72
Literature and Sources 73-75
I. Legal Theoretical Premises
The great battle between the individualistic and societal view may be waged in the field of ethics; there is no place for it in the field of law. All law is the result and requirement of the social cohabitation of the human race, and during the entire history of the world, in state organizations and in non-state social groups, it has borne an unmistakably social imprint. However, if law shares this quality with many other products of the social character of the human being, nonetheless the special role of being a tool of society in the service of the interests and purposes of any given societal form and consequently of relating only indirectly to the individual and his purposes is reserved for law alone.
With this assumption, we in no way deviate from the popular saying that "all law exists for the sake of the human being"; we only want to emphasize that this occurs not by way of directly relating the purpose of law to the demands and objectives of individuals, but rather it occurs through the prism of societal interests. Who the ultimate "purpose-subject" of all social institutions is, is a question for itself which is already outside the scope of a specifically juridical study; and if we do not wish to enter upon the uncertain territory of the various theories of society, we must hold to the precept that society and not the individual is the narrow purpose-subject of the law.1 Of course, this does not solve the problem of what is the purpose and task of society itself and of its enforcement organization, the State; this much is clear, nonetheless, that in its activity of standardizing human life the law should start from the interests and conditions of existence of society.
In this way, we place ourselves in the field of law on the standpoint of social utilitarianism, which is related in essence to the proven Iheringian formula of safeguarding the living conditions of society through the legal force of the State.2 Thus social utilitarianism provides us with the criterion by which we are to judge human action and development as well as the legal standards circumscribing the latter. It is not within the scope of this study to provide evidence that in the course of history the entire content of the law in fact strived to be formed according to this criterion, that, as Makarewicz accurately notes, "social utilitarianism lies at the root of every social standard, [and] what is useful to society forms the starting point of every social institution"3; the decisive thing for us is rather that, from the standpoint of purpose and value, social utilitarianism must be viewed as the one general standpoint that plays the role of a universally applicable yardstick for all legal standards that the State establishes or should establish in the service of legal order.
Thus if we see the historically immutable purpose of the law in the safeguarding of the conditions for the existence of society, we have still not by a long shot approached the solution of the problem of what conditions of existence require special legal protection at a given phase of the development of the law. And this is our task: for the purpose of the juridical study "is directed throughout jurisprudence toward the acquiring of the practical possibility of legally assessing actual life."4 In order to prevent any misinterpretations, we must note in advance that we are considering in what follows only that safeguarding function of the law that possesses the character of protecting, of defending against the actions that threaten the conditions of existence of society, that is, a primarily negative function. It is true that law is not merely a complex of negative standards setting limits on human behavior, but we must leave aside herein that activity of the law that consists not in the combating of wrong but rather seeks to promote societal development through social legislation. As for what concerns the safeguarding function of the law, however, it would be an erroneous assumption to conclude, based on the law's task of safeguarding the conditions of existence of society, that the law must necessarily control the personal lives of individuals. "The individual," says John Stuart Mill, "is not accountable to society for his actions, in so far as these concern the interests of no person but himself."5 The law should label this type of actions legally irrelevant or "extralegal," because they neither violate the organization of the society nor the interests of the individuals. For, from the standpoint of social utilitarianism, the task of legal force cannot be the futile effort to adapt by forceful means the personal life of the human being to an average type of life useful to societal interests, but only to fight against the attacks of individuals that violate these [interests]. We view in this the limit marker beyond which interference in the sphere of activity of the individual conflicts with the purpose of safeguarding the conditions of existence of society.
If we now intend to specify the latter expression, which has its origin more in sociology than the law, in legal terminology, then we must characterize the conditions of existence of society that are subject to legal protection as the public interest of society. The culpable violation of the conditions of existence of society appears to us then as the wrong to be combated by the forceful means of the law.6
Thus the most characteristic trait of a wrong is harmfulness to society.
Not everything that is harmful to society is a wrong; but only that which
is harmful to society can appear as a wrong with respect to society. Therefore,
the law and legislation should have to measure all actions against the
touchstone of harmfulness to society before declaring them legally relevant
or legally indifferent. And not all those arbitrary human actions should
be understood as harmful to society that appear reproachable to the "moral
consciousness of the people", to "popular views", or to the "[in Italian:]
average morality of a given people at a given time,"7 but only those that
violate the public interest, to be defined more specifically below. To
this extent this term has considerable importance for any criminological
study that places itself on the standpoint of social utilitarianism, and
it will serve us as a guideline in the following presentation ...
1 Thus R. v. Ihering, Der Zweck im Recht 1 [The Purpose in Law], 1893, p. 462.
2 See R. v. Ihering, ibid., p. 443.
3 Makarewicz, Einführung in die Philosophie des Strafrechts [Introduction to the Philosophy of Criminal Law], 1906, p. 44.
4 G. Jellinek, Allgemeine Staatslehre [General Political Science], 1905, p. 50.
5 John Stuart Mill, Ueber die Freiheit [On Liberty], 1860, p. 133.
6 See on this Jellinek, Sozial-ethische Bedeutung von Recht, Unrecht und Strafe (Social Ethical Significance of Law, Wrong, and Punishment], 1878, p. 56.
7 N. Colajanni, Sociologia criminale 1, 1889, p. 64.