Herausforderungen und Antworten: Das Öffentliche Recht der letzten fünf Jahrzehnte by Rainer Wahl
| Author | Jo Eric Khushal Murkens |
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00677_2.x |
| Date | 01 November 2007 |
| Published date | 01 November 2007 |
unconditionalist interpretation of dignity put forward by Pope John Paul II.
According to that interpretation,which is itself in discontinuity with theprevious
Catholic position, nobody, not even a murderer, loses his personal dignity. It fol-
lows that to kill someone intentionally is always in breach of human dignity.
Perry argues that under extreme circumstances we should adopt a less-than-
unconditionalistapproach,which allows,for example, to kill someonei ntention-
ally if this is done for the person’s own sake. Imagine, for example, that you and
yourdaughter arecaught by a group of terrorists, and youknow without a hint of
a doubt that the following day you will be both tortured and killed. In order to
spare your child this atrocity, you decide that it is better to end her life before the
terrorists do. Inthis case, Perry argues, to intentionally kill your daughter cannot
be equated with the violation of human dignity. This conclusion brings Perry to
put forward a conditionalist interpretation of dignity, which is a more subtle and
nuanced interpretation of dignitythan theVatican’s, but still very hard to admin-
ister in practice, as thede¢nition of the conditionality’s threshold is in itself a very
complicated task. The main bulk of Perry’s argument, however, points in the
direction of the impermissibility of death penalty in most of the cases from the
moral viewpoint.
There are many ways in which it is possible to engage with Perry’s arguments
as the booko¡ers so many issues for discussion.The quality of those arguments is
as uncompromising, and this makes a close reading highly rewarding. Perry’s
arguments are far from being conclusive, but the quest for a proper theory of
human rights should probably start there.
Lorenzo Zucca
n
RainerWahl, Herausforderungen und Antworten: Das ¡entliche Recht der
letzten fˇnf Jahrzehnte,10 6 pp, pb h24.95, Berlin: De Gruyter Recht, 2006
WheneverWahl asks his British colleagues about the justi¢cation for certain ele-
ments of English law, the stock answer hegets is that the reasonsfor English legal
rules and principles can only be understood historically. ‘Historically’ does not
mean identi¢cation of the historical period in whichthese concepts ¢rst emerged,
but the intellectual origins of contemporary understandings of legal concepts.
This answer has inspired him to undertake a similar exercise for German public
law, and the result is a revised and expanded version of a lecture he gave before the
Judicial Society in Berlin in January 2005 on the‘historisation’ of existing consti-
tutional and administrative law. Historisation, as Wahl explains in an earlier
work,
1
is not about connecting the present with the past but of identifying the
lasting in£uences of the origins and later developments on contemporary public
law.Were there founding, post-war, legal principles which continue to cast their
spell on public law today? Was a speci¢c course set at the very beginning with
n
School of Law, King’s College London
1 R.Wahl,‘ZweiPhasen des ¡e ntlichen Rechtsnach 1949’in R.Wahl,Verfassungsstaat, Europa
ºisierung,
Internationalisierung (Frankfurt: Suhrkamp, 2003) at412, n 3.
Reviews
102 8 r2007 The Authors. Journal Compilation r2007 The Modern Law Review Limited.
(2007) 70(6) 1023^1043
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