Interpretation And Reflection Of Arthur Kaufmann’s Doctrine Of Rechtsfreier Raum

In the shocking terrorism attack happened in New York City on 11 th September, 2001, does the Federal Army have the right to shoot the plane hijacked by terrorists down to avoid worse situation, even though there are many innocent passengers in this plane. The right of justifiable defense only can be exerted towards wrongdoers, and killing innocent people doesn’t eliminate illegality in such a tragedy. Moreover, the value of life shouldn’t be measured by number, so killing innocent people can not be counted as a legitimate action. Here, Arthur Kaufmann created the Doctrine of Rechtsreier Raum. Shooting hijacked plane with innocent passengers to avoid worse situation, in Kaufmann’s opinion, is no longer an illegal action but a action in Rechtsreier Raum. Not all the behaviors stipulated in criminal law can be rated as legal or illegal,especially in these tragic cases, the opinion category of legal or illegal is not enough. As he said, the law mustn’t make a evaluation here. The foregoing is the meaning in first level of Rechtsreier Raum.The first level of Rechtsreier Raum is mainly about the legal evaluation in tragic cases, as the starting point of the doctrine of Rechtsreier Raum, to some degree, is just to introduce a deeper theory. The second level of Rechtsreier Raum, based on a liberal and plural society, which is also full of risk. Kaufmann’s great expectations rest on the Doctrine of Rechtsreier Raum, for it may be applied to many areas, for example, liberty, democratic politics, relativity, pluralism, self-responsibility and forbearance.These two levels of Rechtsreier Raum should be treated differently. First of all, under the constituent system of crime, including according with criminal elements, illegality and responsibility, there are only two legal evaluations, that are legal or illegal. And illegal in evaluation doesn’t leads to punishment necessarily. Second, on the legal evaluation the behaviors unchecked in law are equivalent to the legal behaviors. But this kind of legality in unchecked way doesn’t leads to appeal rights to others, society or country. These tragic cases which Kaufmann has enumerated could and should be deal with legal or illegal appropriately. So there is no need to take the third way, which is neither legal nor illegal. In a word, the first level is meaningless. As for the second level, Kaufmann doesn’t give a systematical discussion, which is dispersed in the discussion on many issues, such as value conflicts, principle of self-responsibility, bioethics, democratic politics, legislation in a plural society, principle of tolerance and the relationship between law and morality. Applications on these issues just proved the significance of Rechtsreier Raum. For the construction of rule of law in China, such a legal philosophy in plural and risky society is definitely of great reference.