Ought and Can in Criminal Law

The Concept of Criminal Duty and the Conditions Under Which It Arises

When do duties arise in criminal law – and what role does the ability to comply with a norm play in this context? This project examines the tension between duty and ability and its significance for central issues in criminal law.

Criminal law doctrine commonly proceeds on the assumption that, in a given factual situation, an offender is subject to specific, individualized requirements of conduct that constitute concrete manifestations of a general legal norm and may be described as duties. In concise terms, the conditions for the emergence of such duties are generally understood to consist not only in the existence of an abstract norm of conduct but also in the addressee's ability to comply with that norm – that is, in some conception of the capacity to act. Where, in the circumstances of the particular case, the of­fender lacks such an ability, the existence of a corresponding duty becomes questionable. At its core, this reflects the philosophical principle that “ought implies can.”

In criminal law, the relationship between obligation and ability plays a central role in a wide range of doctrinal issues, including questions of objective attribution, negligence, conflicts of duties, diminished responsibility, excusability, and others. Although criminal law scholarship largely accepts the principle that “ought implies can,” both concepts are understood in different ways and receive problem-specific interpretations depending on the doctrinal context. The seminar therefore aims to examine, at a fundamental level, the concept of criminal law duties and the conditions under which they arise. To this end, it will analyze the concepts of duty and ability as they are employed in criminal law and discuss the competing accounts of both the relationship between obligation and ability and the substantive content of these concepts in specific areas of application.

Seminar