Department of Criminal Law
The research program in the Department of Criminal Law is guided by the Max Planck Society’s motto “Insight must precede application.” We do not take the perspective of lawyers, who survey, systematize, and apply existing law (national, European, or international) but rather the more detached perspective of basic research (Grundlagenforschung), which analyzes and assesses norms. In addition, we study – again from both an analytical and a normative perspective – the actors and practices involved in the creation of criminal law norms, in criminal proceedings, and in the imposition of punishment.
Basic research in criminal law must necessarily be interdisciplinary in nature. In addition to considerations drawn from legal theory and epistemology, it requires, above all, insights from the fields of psychology and sociology into how people behave and how the social and cultural contexts of legal regulation develop. As far as the normative component is concerned, namely, the assessment of norms and practices, political and moral philosophy are of central importance.
The analytical and normative approach makes a transnational theory of criminal law possible. Transnational criminal law theory, in contrast to international criminal law, concentrates not on the application of positive international law or on offenses and offenders that cross international borders but rather on discussions among scholars about problems – and potential solutions – that arise in similar ways in different legal systems.
The research agenda of the Department of Criminal Law is shaped to a great extent by methodological assumptions that distinguish our research from that conducted in many law schools where the focus is on positive law. Researchers in the Department grapple with all fundamental questions of the discipline:
- Punishment theory (How can criminal norms, criminal justice, and infringements into the liberties of individuals be justified?)
- Theory of criminalization (How do criminal norms come into being? What kinds of behavior should be subject to punishment? Are alternative forms of behavioral regulation possible?)
- Assessment of wrongfulness (What constitutes a criminal wrong?)
- Sentencing theory (Which sanctions are appropriate? How can a moderate level of punishment be maintained?)
- Theory of criminal process (How can criminal proceedings be conducted effectively and fairly?)
At the same time, our research questions respond to current developments and new issues. First, technical and economic changes that can be described, for example, with the keywords globalization and digitalization have an effect on the need for and the effectiveness of behavioral control by means of criminal law. Second, it is necessary to ask whether, when, and how legal systems react and should react to societal shifts that lead to increasing political, social, and cultural fragmentation.
Basic research has its own intrinsic value. In addition, it can serve as the basis for legal policy proposals designed to improve criminal law rules and practices and to adjust them to reflect changing premises and conditions. We also prepare recommendations for the further development of the law, criminal law doctrine, and the practice of criminal procedure.