“Guilt” and its Significance for (German) Criminal Law

Guilt is the focal point of (German) criminal law: it is a prerequisite of pun­ish­ment, is guaranteed by the constitu­tional principle of guilt, and is the epitome of the general systemic decision to adopt a culpability-based criminal law. In the theory of crime, the category of guilt (or culpability) is widely understood to determine whether a per­son can be held responsible for a wrongful act. Moreover, the label “guilt” implies a serious misdeed that, from a moral standpoint, is deserving of punishment.
The meaning of the concept and its use in the criminal law context, however, is indeterminate and vague. Guilt is a priori not only a legal term, but is broadly used in social, moral, and religious contexts so that it cannot be sepa­rated from its pre-legal, cultural significance in society. Furthermore, different normative meanings are connected to the legal term depending on the regulative context in which it is used. It seems that different understandings of the concept underlie guilt as an element of the definition of crime, in sentencing law, in legal theory, and in consti­tu­tional law.
Thus, guilt appears to be a concept that is not easily defined or definable; rather, it seems to be a catch-all term that encompasses various normative contents and functions. The aim of the project is to analyze the normative contexts in which the term is used and to understand the underlying assumptions and rules that shape its practical applica­tion in criminal law. The hypothesis is that in using the term in different normative contexts, shared charac­teristics of these cases are implicitly assumed by its users. These conditions of application in turn might offer normative guidelines on how to construe the content of the concept of guilt in criminal law.
The results will be used to investigate whether the multiple normative contents and functions are consistently and necessarily connected to the concept of guilt and whether the traditional distinction between three functional con­cepts of guilt is justified, namely: (1) guilt as a set of prerequisites for criminal liability, such as a close connection between an individual’s actions and the wrongful outcome as well as the absence of excusing circumstances (Straf­be­grün­dungsschuld); (2) guilt as the benchmark and yardstick for appropriate punishment in the sentencing context (Strafzumessungsschuld); and (3) guilt as a normative idea legitimizing the practice of punishment and framing the punishment as being deserved and intrinsically just (Schuldidee). A likely outcome may be the finding that the con­ceptual field of guilt in criminal law needs to be restructured. In this regard, normative challenges such as the criminal responsibility of new social actors (corporations & intelligent agents), the undermining of the con­cept of free will by neuroscience, and the internationalization and flexibilization of criminal law in general need to be ex­am­ined in light of the underlying question as to which normative contents and functions currently associated with the concept of guilt are still needed and justifiable in a modern criminal law based on the rule of law. By of­fer­ing an analytical overview of the concept of guilt in criminal law, the aim of the project is to contribute to this fun­da­mental debate.