To limit the exercise of police powers, German public security law authorizes police to avert so-called dangers. That is, a ‘danger’ is a condition for legitimate use of police power. ‘Danger’ thereby is a term of art. Not all risks are ‘dangers’, and in the common doctrine, there is only a ‘danger’ in the case of a ‘sufficient probability of damage’. This means that probability judgements lie at the center of established legal doctrine. This doctoral project argues that probability judgments are insufficient to explain the current legal practice concerning risks. It finds that next to probability judgements, other acceptability criteria are already—but without scientific reflection—used to assess the legal acceptance of risks. One principal alternative is ‘general life risks’. This dissertation explores this scientifically unexamined term and its underlying significance for legal interpretation as an antonym to the term ‘danger’. Using a methodological blend of doctrinal analysis and statutory interpretation, this thesis makes the following specific contributions to German public security law. First, it describes ‘general life risks’ in civil, criminal, and public law frameworks. Second, by structuring ‘general life risks’ into semantic fields, the project shows that it functions as a synonym for ‘acceptable risk’ and is associated with four ancillary concepts: (1) ‘natural’ risks; (2) ‘uncontrollable’ risks; (3) ‘normal, socially accepted’ risks and (4) utility (cost-benefit analysis). Third, this project assesses the theoretical value of these meanings for legal interpretation. Positioned at the core of the general doctrinal structures of German public security law, this project contributes to the Department’s research agenda by challenging dogmatic and theoretical aspects of public security law and their impact on legal interpretation. In the end, by assessing ‘general life risks’ as a criterion for interpreting public security law, this project hopes to enrich risk evaluation theories by providing a more realistic approach to risk evaluation.
Research outcome: doctoral dissertation at the University of Freiburg supported by the Studienstiftung des deutschen Volkes (2017-2020).
First axis: Fundamentals: Theoretical Foundations and Doctrinal Structures Department: Public Law Status of project: Ongoing Project category: Dissertation Project duration: Project start: 2017
Project end: 2020