Theory of Criminal Law – Independent Research Group

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.

Photo: © Mabline72/

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.



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 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 other’ (in Thomas Scanlon’s memorable phrase) and is… more

<em>Rücksichtslosigkeit</em>. 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 Criminal Liability of Inadvertent Negligence from a German and 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

Law and Morality in Kant

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?
In current scholarship, Kant is often cited as holding the latter view… more

Committed to Non-Judgmental Science?
Current Justification and Significance of the Postulate of Non-Judgmental Science

Current Justification and Significance of the Postulate of Non-Judgmental Science more

A woodcut from 1508: A maid tries to get rid of her child. Picture: Die Welt der Schweizer Bildchroniken (The world of Swiss pictorial chronicles)

The treatment of infanticide in the Enlightenment discourse on criminal law policy and in the Prussian General Land Law more

Richard Martin Honig

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 (1930), which has since become commonplace in German criminal law doctrine… more

Anti-Impunity: Do Human Rights Give the Victim a Right to Punishment?

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. The… more

Blame for Ignorance? Perspectives on Willful Blindness and Mistakes of Fact

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. It usually involves individuals deliberately ignoring or avoiding… more

Criminalising Carelessness. Comparative and Interdisciplinary Perspectives on Criminal Liability for Inadvertent Negligence

Comparative and Interdisciplinary Perspectives on Criminal Liability for Inadvertent Negligence more

Subjective Imputation and Lay Attribution of Criminal Responsibility and Blameworthiness for Deliberately Risky Behavior

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… more

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