Necessity and the State’s Monopoly on the Use of Force

Reason for and Scope of the Primacy of State Procedures in the Context of Section 34 German Criminal Code

What is the relationship between private and state conflict management? The aim of this project is to examine this relationship in the context of section 34 German Criminal Code (necessity as a justification, rechtfertigender Not­stand). According to this provision, an act is justified if it is committed in order to defend a higher-ranking pro­tected legal interest. To prevent undermining the state's monopoly on the use of force, this justification is not available if the state provides its own procedure for dealing with the conflict. In a modern state, however, such procedures are available for all conflicts. Thus, if taken seriously, the doctrine of the primacy of state procedures would always pre­vent justification pursuant to section 34. As this cannot be the case, the scope of this primacy must be clarified.
In a first step, the dissertation will discuss why state action should be given primacy over private action. To this end, the background of the state’s monopoly on the use of force will be examined. In a second step, a systematic ap­proach to the scope of the primacy of state action will be developed. Finally, the thesis will distinguish between cases in which the state alone bears responsibility and those in which private action is permitted.