The Criminalization of Inadvertent Negligence from a German and an 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 open questions that raise doubts about the justifiability of criminalization from a doctrinal standpoint, about the ability to prove that the actor could have prevented the occurrence of harm, and thus, ultimately, about the legitimacy of punishment de lege lata.
Moreover, the German discussion suffers from an inherent defect since, due to the intent–negligence dichotomy established by statute (currently § 16 StGB), legal practitioners have paid virtually no attention, from the very beginning, to the differences between advertent and inadvertent risk-taking. In Anglo-American criminal law, in contrast, these issues are treated differently. Indeed, in most Anglo-American jurisdictions, the distinction between advertent and inadvertent endangerment is established structurally, thanks to the distinction between recklessness and negligence. Given this background, the Anglo-American debate on the criminalization of negligence has been and continues to be highly dynamic.
A review of the relevant literature offers the possibility of enriching the German conversation and perhaps even of prompting a reassessment of the problem.