Max Planck Institute for the Study of Crime, Security and Law
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.
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:
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.
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.
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.
Heads of project: Philipp-Alexander Hirsch, Jonas Vandieken Accountability is one of the most significant concepts in both legal theory and moral philosophy, central to understanding the authority of law and the binding force of moral obligations. To be accountable means to be answerable to others for one’s actions, whether in the context of legal…
more
Heads of project: Simon Gansinger, Antonia Hofstätter Published in 1963, Theodor W. Adorno’s “Sexual Taboos and Law Today” constituted a timely intervention in the public debate on changing sexual mores in the 1960s. Critiquing repressive bourgeois morality and progressive sexual values alike, the essay suggests that the utopian potential of…
more
Heads of project: Philipp-Alexander Hirsch, Patrick Joseph Siegle The project examines the human rights guarantees of the European Convention on Human Rights, the Inter-American Convention on Human Rights, and the fundamental rights of the German Grundgesetz as shaped by the respective case law to determine the extent to which they grant victims of…
more
Heads of project: Philipp-Alexander Hirsch, Svenja Schwartz, Alexander Heinze Can a person be blamed for turning a blind eye to the circumstances of his or her conduct? From a criminal law perspective, the concept of “willful ignorance” (“willful blindness” or “conscious avoidance”) exists – in varying forms and terms – in different jurisdictions.
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Heads of project: Philipp-Alexander Hirsch, Hendrik Klinge That science is non-judgmental in terms of value is generally regarded as a necessary prerequisite for the objectivity and special value of scientific knowledge. Neither the values of the scientists themselves nor the social purposes for which science is used should be a condition for…
more
Heads of project: Philipp-Alexander Hirsch, Johannes Weigel Can we punish people for crimes they didn’t even know they committed? Ultimately, the answer to this question lies at the core of criminal liability for inadvertent negligence. But legal systems respond very differently. Although most civil law jurisdictions seem to have no problem…
more
Heads of project: Philipp-Alexander Hirsch, Milan Kuhli, Gideon Stiening 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…
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Head of project: Simon Gansinger Max Horkheimer is often overlooked as a legal theorist. Yet his writings contain an original analysis of law, starting from the observation that there is a tension between political power and its legal form. On the one hand, law is a means of domination, instituted for the purpose of reinforcing the rule of some…
more
Heads of project: Philipp-Alexander Hirsch, Martin Brecher What is the relationship between law and morality? Does legal philosophy merely apply general moral principles to particular circumstances that give rise to the need for law and its institutions? Or does law have its own kind of normativity, which cannot be reduced to morality?
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Heads of project: Philipp-Alexander Hirsch, Markus Abraham, Martin Brecher 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…
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Heads of project: Philipp-Alexander Hirsch, Erasmus Mayr The rise of second-personal or relational conceptions of morality has been one of the most significant developments in contemporary ethics in the last 25 years. While many different theories are classified under this label, they generally agree that morality concerns ‘what we owe to each…
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Head of project: Philipp-Alexander Hirsch 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…
more
Heads of project: Simon Gansinger, Henrique Carvalho, Daniel Matthews The idea of “civil order” produces an idealized image of a well-ordered society, obscuring complex realities of inequality, violence, and repression, and reinforcing boundaries between those who abide by norms of civility and those who do not.
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Head of project: Simon Gansinger For many readers of the Outlines of the Philosophy of Right, Hegel’s account of punishment is an exemplar of retributivism. However, there have been heterodox voices that associate Hegel’s argument with consequentialist and, more recently, with expressivist justifications of punishment. A growing number of scholars…
more
Heads of project: Philipp-Alexander Hirsch, Markus Kneer, Levin Güver Both the legal and the everyday attribution of responsibility are based on a rationalist, naive psychology that interprets human action as behaviour caused by epistemic and optative states. The different degrees of legal and everyday attributions of responsibility correspond to…
more
Head of project: Simon Gansinger Despite the vast literature on rights, duties, responsibility, and punishment, the normative notion of wrong is often dealt with, if at all, as an afterthought. This project aims to challenge the casual attitude towards wrong, wrongs, wronging, wrongfulness, and the like, by looking at the concept through the lens of…
more
Head of project: Johannes Weigel 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.
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Head of project: Svenja Schwartz 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…
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Head of project: Philipp-Alexander Hirsch The project is dedicated to the question of whether there was a feminist Enlightenment in criminal law in the German-speaking world in the 18th century. Based on an analysis of the gender-specific differentiations to be found in criminal law and criminal prosecution before the advent of Enlightenment…
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Heads of project: Philipp-Alexander Hirsch, Matthias Dölling, Jan Rennicke Richard Martin Honig (1890–1981) is best known in German criminal law as one of the pioneers of the doctrine of objective imputation due to his ground-breaking contribution “Kausalität und objektive Zurechnung” (Causality and objective imputation) in the Festgabe für Frank…
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Heads of project: Philipp-Alexander Hirsch, Elias Moser 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?
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Heads of project: Philipp-Alexander Hirsch, Jonas Vandieken Accountability is one of the most significant concepts in both legal theory and moral philosophy, central to understanding the authority of law and the binding force of moral obligations. To be accountable means to be answerable to others for one’s actions, whether in the context of legal institutions or interpersonal moral relationships. While much scholarly attention has focused on the conceptual nature of accountability, its practical dimensions—how accountability is enacted and experienced—remain underexplored.
Head of project: Philipp-Alexander Hirsch 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 determining punishment proportionate to the wrongness of the deed and the guilt of the offender.
Heads of project: Simon Gansinger, Antonia Hofstätter Published in 1963, Theodor W. Adorno’s “Sexual Taboos and Law Today” constituted a timely intervention in the public debate on changing sexual mores in the 1960s. Critiquing repressive bourgeois morality and progressive sexual values alike, the essay suggests that the utopian potential of intimacy is inseparable from the tension sexuality creates for self and society.
Head of project: Simon Gansinger Max Horkheimer is often overlooked as a legal theorist. Yet his writings contain an original analysis of law, starting from the observation that there is a tension between political power and its legal form. On the one hand, law is a means of domination, instituted for the purpose of reinforcing the rule of some people over others.
Head of project: Simon Gansinger Despite the vast literature on rights, duties, responsibility, and punishment, the normative notion of wrong is often dealt with, if at all, as an afterthought. This project aims to challenge the casual attitude towards wrong, wrongs, wronging, wrongfulness, and the like, by looking at the concept through the lens of GWF Hegel’s mature philosophy, which takes wrong (Unrecht) to be an integral feature of intersubjective, institutional, and political make-up (“objective spirit”) of the modern world.
Head of project: Simon Gansinger For many readers of the Outlines of the Philosophy of Right, Hegel’s account of punishment is an exemplar of retributivism. However, there have been heterodox voices that associate Hegel’s argument with consequentialist and, more recently, with expressivist justifications of punishment. A growing number of scholars argue that, rather than offering one justification of punishment, Hegel’s Philosophy of Right paves the way for a “mixed” or “complete” theory.
Heads of project: Philipp-Alexander Hirsch, Markus Kneer, Levin Güver Both the legal and the everyday attribution of responsibility are based on a rationalist, naive psychology that interprets human action as behaviour caused by epistemic and optative states. The different degrees of legal and everyday attributions of responsibility correspond to the possible combinations of different epistemic states (such as knowledge, foresight as practically certain, probable or merely possible, not knowing, etc.) and optative states (such as desiring, striving, accepting, indifference, etc.).
Heads of project: Philipp-Alexander Hirsch, Johannes Weigel Can we punish people for crimes they didn’t even know they committed? Ultimately, the answer to this question lies at the core of criminal liability for inadvertent negligence. But legal systems respond very differently. Although most civil law jurisdictions seem to have no problem with criminal liability for inadvertent negligence, its criminalisation is controversial in common law jurisdictions.
Heads of project: Philipp-Alexander Hirsch, Svenja Schwartz, Alexander Heinze Can a person be blamed for turning a blind eye to the circumstances of his or her conduct? From a criminal law perspective, the concept of “willful ignorance” (“willful blindness” or “conscious avoidance”) exists – in varying forms and terms – in different jurisdictions.
Heads of project: Philipp-Alexander Hirsch, Patrick Joseph Siegle The project examines the human rights guarantees of the European Convention on Human Rights, the Inter-American Convention on Human Rights, and the fundamental rights of the German Grundgesetz as shaped by the respective case law to determine the extent to which they grant victims of crime subjective rights to punishment of the offender.
Heads of project: Philipp-Alexander Hirsch, Hendrik Klinge That science is non-judgmental in terms of value is generally regarded as a necessary prerequisite for the objectivity and special value of scientific knowledge. Neither the values of the scientists themselves nor the social purposes for which science is used should be a condition for scientific knowledge. The postulate of non-judgmental science thus prevents science from being overloaded with societal expectations of practical orientation as well as the politicization or even ideologization of its findings.
Heads of project: Philipp-Alexander Hirsch, Martin Brecher What is the relationship between law and morality? Does legal philosophy merely apply general moral principles to particular circumstances that give rise to the need for law and its institutions? Or does law have its own kind of normativity, which cannot be reduced to morality?
