Criminal Law Theory

Independent Research Group

The “Criminal Law Theory” Research Group focuses on the analysis of substantive criminal law and criminal pro­cedure and the doctrine in these areas; the analysis centers on the underlying normative structures and prin­ci­ples in order to assess their coherence, justifiability, and persuasiveness. The aim is to draw on the fruits of this analysis to engage in normative theory-building that proposes solutions to problems in criminal law that go beyond interpreting the positive law. This requires integrating the doctrine and practice of criminal law, on the one hand, with other sciences — practical philosophy in particular — on the other.

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Research Topics

The Research Group welcomes research projects on all “classical” questions of criminal-law theory, such as the justifi­ca­tion of punishment, the nature of criminal wrongdoing, criminalization and the limits of state punishment, or the defi­ni­tional features of criminal responsibility. However, the Research Group’s work concentrates on the following three research topics:

Theory of Subjective Imputation

What distinguishes a criminal offence from other norm violations in the first place is subjective imputation, because attributions of re­spon­sibility in criminal law are based on certain inner attitudes and states of the offender. However, it is unclear how we are to conceptu­al­ize these. Not only is the traditional understanding of intent and negligence increasingly faltering in the German criminal-law discus­sion but we are also finding alternative descriptive models of the sub­jective aspect of criminal offences outside of German criminal-law doctrine. The Research Group investigates the factual and nor­ma­tive assumptions underlying subjective imputation, looking beyond na­tional doctrines. To do so, the Research Group draws upon insights from other sciences – especially from practical philosophy. In addition, the Research Group seeks exchange with the discussion on mens rea in Anglo-American criminal-law theory with a view to identifying discursive similarities and differences and developing approaches for a transnational theory of subjective imputation.

Relationality of Crime

Traditionally, criminal-law theory views crime as a wrong that, in nor­mative terms, takes place solely in the relationship between the of­fender and the state. Under this view, the state seeks, through crimi­nal regulations, to protect certain legal goods (Rechtsgüter) from harm. In contrast, the Research Group will develop an alternative con­cep­tual model according to which the conception of criminal wrong­do­ing as the harming of a state-protected legal good is incomplete and, instead, criminal wrong­do­ing must be conceptualized in a pri­mar­ily relational way — that is, it must be understood first and fore­most as the violation of intersubjective rights to the absence of such harms. One aim of this new theory of crime is to make it possible to describe crimes as violations of individual rights and, at the same time, violations against the legal community as a whole. Another aim is to foster the development of new criteria for the criminalization of behavior, for subjective imputation, and for victim participation in criminal proceedings.

Criminal Law in the Age of Reason

More than almost any other century, the period from 1730 to 1830 shaped our contemporary understanding of crim­i­nal law. In one of the many transformations of the Enlightenment, modern German crim­i­nal law and crim­i­nal jurisprudence developed as an independent aca­demic discipline. Additionally, important “theoretical choices” were made that not only have a latent effect on today’s criminal-law doc­trine but also serve as reference points for the debates in criminal-law theory to this day (ranging from questions of criminalization to ques­tions surrounding the justification of punishment). The Research Group seeks to chart the “unchartered territories” on the map of eight­eenth-century criminal-law theory and critically investigates the po­ten­tial that authors and ideas of this period can have for contempo­rary criminal-law theory.

Projects

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Rights in Criminal Law

The aim of the project is to address the issue of rights in criminal law: Who holds and who should hold a right not to be wronged by others? And is it the violation of rights – rather than the causing of harm – that grounds a prima facie reason for criminalization? According to the standard view in criminal law, compliance with criminal-law du­ties… more

Ernst Ferdinand Klein. Philosopher, Criminal Law Scholar and Justice Reformer of the German Enlightenment

Ernst Ferdinand Klein is one of the most prominent figures of the late German Enlightenment. A philosopher, scholar of criminal law, and reformer of the judiciary, he not only played an influential role in shaping academic dis­course in these fields at the end of the 18th century. He also had a lasting impact on forming public opinion on the… more

Reasonable Punishment? The Presence of German Idealism in the Theory of Punishment

The aim of this interdisciplinary research project is to evaluate from today’s per­spective the dispute regarding whether punishment ought to be justified on retrib­u­tive or on preventive grounds – a dispute that has been on­go­ing in Ger­many since the end of the eighteenth century and whose most influential protagonists were Kant, Fichte, and… more

Relational Morality and the Criminal Law

The project will address the significance of second-personal/rela­tional concep­tions of moral­ity for criminal law and criminal proce­dure. Despite the vast im­portance that these concep­tions have gained in contemporary ethics in recent years, their possible implications for crim­i­nal law, especially in Germany, are still relatively unexplored… more

Rücksichtslosigkeit. Possibility, Potential, and Limits of a New Central Category between Intent and Negligence

In German criminal-law doctrine, deliberate high-risk behavior is strictly di­chot­o­mized as either intentional or neg­li­gent behavior. The border line runs between dolus eventualis (“conditional intent”) and bewusste Fahrlässigkeit (“conscious negligence”), although this is accompanied by problems with regard to proving intent in the trial and… more

Willful Ignorance

In German law, mistakes of fact have the effect of excluding intent (Sec. 16 I German Criminal Code, StGB). Thus, if a perpetrator was unaware of a relevant factual circumstance – regardless of whether or not the lack of aware­ness was their own fault – intent cannot be established. This can be unsatisfactory from a criminal policy per­spec­tive… more

The Criminalization of Inadvertent Negligence from a German and an Anglo-American Perspective

The criminalization of inadvertent negligence has long been deliberated in Ger­man criminal law scholarship, although the debate seems largely to have come to a standstill in recent dec­ades. Today, most scholars defend the existing crimi­nal­ization by means of a (purely) norm-based allocation of blame. A closer look, however, reveals numerous… more