Subjective Imputation and Lay Attribution of Criminal Responsibility and Blameworthiness for Deliberately Risky Behavior

Both the legal and the everyday attribution of responsibility are based on a rationalist, naive psychology that interprets human action as behaviour caused by epistemic and optative states. The different degrees of legal and everyday attributions of responsibility correspond to the possible combinations of different epistemic states (such as knowledge, foresight as practically certain, probable or merely possible, not knowing, etc.) and optative states (such as desiring, striving, accepting, indifference, etc.).
Criminal doctrine has developed its own categories for attributing those mental states to others and thus for explaining and judging their behaviour: A person is legally responsible for a crime if he or she (i) causally brought about a harmful result and (ii) acted with a "guilty mind". While in common law this "guilty mind" is categorised on the basis of the four mens rea forms (intention, knowledge, recklessness and negligence), continental jurisdictions (especially those influenced by German doctrine) know two forms of culpability (intent /// negligence) with several subdivisions (intent, knowledge, dolus eventualis /// conscious negligence, unconscious negligence).
Criminal law scholars usually content themselves with justifying this conceptualisation and categorisation purely normatively, e.g. through normative arguments for a different quality of injustice or a different degree of culpability or punishability of the respective behaviour. A comparison with the ordinary lay attribution of blameworthiness and punishability is often not considered necessary, since criminal law doctrine is said to be primarily concerned with a functional conceptualisation that must be able to link facts and legal consequences and to justify the latter normatively. It is true that the lay attribution of criminal responsibility and blameworthiness is not a sufficient reason for a concurrent doctrinal conceptualisation. However, such a correlation contributes to the social anchoring and thus the legitimacy of the doctrinal conceptualisation and can lend it greater plausibility.
Therefore, the project aims to systematically investigate the empirical adequacy of the German criminal law doctrine of subjective imputation. It will experimentally test whether the doctrinal categories of subjective attribution in German criminal law actually correspond to laypersons' attributions in criminal cases. The experiments are based on a series of case vignettes inspired by real-life cases in which the mental state of the agent/offender is changed according to the above-mentioned categories from German criminal law doctrine. On the basis of these cases, respondents will be asked to categorise the quality and degree of wrongdoing as well as to assess the culpability and blameworthiness of the offender, and then to explain their decision. The focus is on cases of deliberately risky behaviour without direct intent to cause harm, and thus - from a doctrinal point of view - on dolus eventualis and advertent negligence.
In doing so, the project breaks new ground: Although there is a considerable body of empirical research on moral judgments invoking variables such as fault, blame and culpability, little work has been done to test the conceptualisation enshrined in criminal law doctrine against lay attributions. The project will evaluate the results and make concrete recommendations on how the categories of criminal law doctrine might be modified so that they are grounded in everyday human attributions of wrongdoing, blame and punishment.