| 英文摘要 |
Following the German Federal Constitutional Court’s second abortion judgment, which declared the provision in the amended Criminal Code stating that“adherence to consultation procedures may justify abortion”to be unconstitutional, scholars have raised significant critiques, arguing that the provision in question introduced a novel concept of“procedural justifications.”Unlike traditional justifications, which aim at preserving superior interests, procedural justifications focus on addressing practical realities. Despite attempts to explain this concept through analogies to established principles in criminal law, an emphasis on modern societal conditions, or existing theories of justifications, scholars have struggled to provide a coherent theoretical foundation.
This article seeks to address this gap by employing the concept of communicative rationality, characterized by its procedural nature, as a framework for discussion. Within this framework, the rationality of an action is determined by a discursive process in which all individuals potentially affected by the action can exchange and evaluate reasons. An action is deemed reasonable if it aligns with the conclusion reached through such a procedure. Therefore, the fundamental basis for justifications in criminal law lies in fostering the freedom of communication.
In the context of abortion, the consultation process represents a specific legislative regulation designed to address the unique ethical and legal complexities of the issue. This democratic discursive process enables relevant parties to engage—either directly or indirectly—in deliberations that balance maternal bodily autonomy against the fetus’right to life. The conclusions drawn from this process uphold the freedom of communication for the parties involved, thereby justifying abortion. |
