The Institute’s research agenda extends beyond the positive criminal law in national or international legal systems. Our approach can best be described as transnational criminal law theory. Criminal law theory provides normative frameworks (theories of punishment, criminalization, and criminal procedure) and analyzes goals, structures, rules, and principles for substantive criminal law, procedure, and sentencing. The main question is how the criminal law should be in contemporary democratic, liberal, rule-of-law states rather than what the law is in any given jurisdiction. Criminal law theory must be distinguished from criminal law dogmatics (Strafrechtsdogmatik), which operates within a given system of law. Criminal law dogmatics is concerned with coherent rules and practices on the national level (or for international law); its tasks include interpreting the wording of statutes and regulations and systematizing court decisions. Criminal law theory, in contrast, transcends the boundaries drawn by positive law. The term “transnational” refers to the fact that scholars from different countries can engage in fruitful discussions about the same normative questions.
For our research purposes, comparing criminal laws is not an end in itself, but comparative elements can be integrated into transnational criminal law theory. Surveying the diversity of existing rules and practices contributes to a successful mapping of the range of options and stimulates thoughts about best models and solutions. Ultimately, scholarship in the field of criminal law theory often dovetails with the field of criminal policy. Transnational criminal law theory is not merely a theoretical, academic exercise; rather, it can provide valuable insights for the development of policy recommendations. A questioning stance towards a particular criminal law system and an awareness of different approaches to the same problems or sets of problems sharpen the sense for the strengths and weaknesses of positive law. The systematic analysis of normative foundations and normative arguments contributes to rational, de-emotionalized debates about criminal law and criminal justice. Transnational criminal law theory can thus undergird proposals to modify, abolish, or maintain existing national, European, or international criminal law.
Die Kriminologische Abteilung des Max-Planck-Instituts besteht seit 1970. Sie wurde mit der Berufung von Prof. Dr. Günther Kaiser zum Direktor des Instituts und zum Leiter der Kriminologischen Forschungsgruppe als zweite Abteilung neben der Strafrechtlichen Forschungsgruppe gegründet. Seit 1997 steht diese unter der Leitung von Prof. Dr. Hans-Jörg Albrecht (seit Dezember 2018 kommissarische Leitung). Ab Januar 2020 wird die Abteilung von Prof. Dr. Dr. Jean-Louis van Gelder geleitet, der ein neues Forschungsprogramm implementieren wird.
The Department of Public Law complements the existing Departments of Criminal Law and Criminology with a public law arm that focuses on the preventive aspects of public law. The addition of a new department was motivated by the considerable overlap between repressive crime control and preventive public security law. Not only are the instruments used in these two fields often very similar, but they also pose similar challenges to human rights, fundamental rights, and constitutional law. Regardless of whether information gathered by intelligence agencies is used in a preventive context or for purposes of criminal prosecution, similar issues arise with respect to data protection and privacy rights as well as democratic accountability. What has been described as the "preventive turn" in criminal law has brought the two fields even closer together. More and more, criminal law and public security law are regarded as functional equivalents in the fight against terrorism and organized crime: recruits to militant movements and participants in foreign militant training camps can be subjected to preventive measures – such as electronic observation or even preventive detention – or the act of joining a militant movement or attending a militant training camp can be criminalized – thus opening the door to investigative prosecutorial surveillance and prison sentences.
“Public security” is a core concept in the German-speaking public law tradition, a tradition that differs from the criminal law tradition in two major respects: First, it does not aim to repress crimes committed in the past but rather to prevent dangers to public security from materializing; second, it focuses not only on crime but rather more broadly on threats to public and private goods. It covers all laws and legal institutions designed to protect the integrity of the legal order, private goods, and state institutions from man-made or naturally occurring dangers and risks.
Historically, public law in Germany grew out of the Policey-Wissenschaft (study of public policies) of the 18th century. A goal of Policey-Wissenschaft was to systematize the various and wide-ranging practices of good policy, Gute Policey, that were introduced by the evolving administrations of the monarchs in the various territories of the Holy Roman Empire. For Foucault, the Gute Policey was one of the first modern practices of an all-encompassing “governmentality.” Examples of this good policy were not only Foucault’s famous population policies but traditionally also the prevention of dangers to public security and order. Far into the 19th century, Policey-Wissenschaft was a mix of heterogeneous methodologies, ranging from statistics to economics to the analysis of legal materials. It was not until the second half of the 19th century that administrative law as an independent field of legal study evolved together with the institutionalization of administrative courts, first in Baden and then in Prussia. Whereas the administrations initially understood their police powers in the broad scope of the traditional “Gute Policey,” police powers were limited by the Prussian High Administrative Court in its famous Kreuzberg decision of 1882 to the prevention of dangers to public security and order. Other domains of the old sweeping police powers, such as cultural, economic, or planning regulations, were made dependent on parliamentary legislation. Thus, public security law evolved as the core of German administrative law, beginning with the development of key doctrinal concepts such as public security,danger, and preventive responsibility, which were subsequently consolidated in the police and public security codes of the first half of the 20th century. From these general public security codes, specialized legislation emerged that addressed issues such as dangers to public health, threats posed by assemblies and public gatherings, and threats posed by efforts to undermine the constitutional order. Today, public security law encompasses the non-prosecution-related activities of the various police forces, intelligence agencies, and other government institutions that are concerned with the prevention of public dangers and risks.
Unlike the large national and European research programs on civil security that focus on application-oriented innovations in the field, the Department of Public Law focuses more on fundamental projects. This does not presuppose antagonism between applied and fundamental research. Fundamental research has much to learn from the developing innovations in applied projects and can help to clarify more theoretical, abstract, or general issues that arise in the field. The Department will make use of these interdependencies for its more fundamental research perspectives.
The research agenda of the Department of Public Law is structured on the basis of a three-dimensional topical matrix. The general doctrinal structures and theoretical questions that underlie public security law are located on the fundamental axis of the matrix. The second axis reflects the major trends in the field: internationalization, digitalization, and fragmentation. The third axis represents the normative challenges to public security law: fundamental rights, rule of law, and democracy. The matrix aims to structure a field that is less established in the international discourse than are more traditional areas of legal research. On the one hand, the matrix will serve as a framework for departmental projects; on the other hand, the matrix will either be corroborated by these projects or it will be adjusted and modified in accordance with their results.