Relational Morality and the Criminal Law

The project will address the significance of second-personal/rela­tional concep­tions of moral­ity for criminal law and criminal proce­dure. Despite the vast im­portance that these concep­tions have gained in contemporary ethics in recent years, their possible implications for crim­i­nal law, especially in Germany, are still relatively unexplored. One reason may be the peculiari­ties of (German) criminal law and its theory, according to which crimes are traditionally under­stood as wrongs that, normatively speaking, take place solely in the relationship between the offender and the state. Consequently, in substantive criminal law, the victim has no right or other individual entitlement against the offender not to be harmed. And, in criminal proceed­ings, it is the state that decides on criminal prosecution, i.e., the prosecutor does not need to make her decision based on what she deems to be the victim’s will (or in the victim’s interest) but instead on what is necessary to maintain public order.
We believe that second-personal or relational approaches in ethics, as developed by Stephen Darwall or Jay Wallace, challenge this traditional understanding and can be a productive basis for normative theorizing in criminal law. In this project, we will bring together philosophers dealing with questions of second-personal/relational morality as well as legal philosophers and theorists from both the Anglo-American and German legal traditions in order to explore the extent to which a second-personal/relational understanding of morality can or should shape our understanding of criminal law and criminal procedure. Their contributions will ad­dress the theoretical foundations of criminal law, doctrinal questions of substantive criminal law, and the structure of criminal procedure.