Archive of Events

Legal decisions are largely based on human information processing. Not only do they rely on human memory but they result from human decision-making. As much psychological research shows, however, human memory is fallible and malleable and human decision-making is often biased. I will present some relevant own work on three topics: (1) false autobiographical memories, (2) hindsight bias in judges’ negligence assessments, and (3) effects of pretrial publicity on the respective legal judgments. Finally, I will discuss the findings, derive implications and potential countermeasures. [more]

[more]

Ordering and executing the infliction of harm – as specified in the criminal law – requires both a formal as well as a substantive legitimization. Such a legitimization is typically derived from so-called punishment (or “penal”) theories (such as “absolute punishment” theories à la Kant or Hegel or “relative punishment” theories that weigh the deterrent effects of punishment against the harm it produces). These theories are inherently normative (in the sense that they work with ethical arguments), but many of these theories also make (explicit or implicit) assumptions about “human nature” (i.e., about people’s subjective punitive instincts, retributive desires, affective responses, attitudes, values, etc.). Whether or not these assumptions are tenable is not a question of plausibility or pure logic, but rather a question of whether empirical findings speak for or against them. Social psychology – and, social justice research in particular – aims to provide such empirical findings, and I will show how such findings can be used to inform punishment theory. To do so, a first necessary step is to thoroughly investigate punishment theories with regard to the explicit and implicit assumptions they make about human nature, and then, in a second step, scrutinize these assumptions against empirical findings. This is exactly what Mario Gollwitzer and Ralf Kölbel (Chair of Criminal Law and Criminology, LMU) are currently trying to do in a research project funded by the Volkswagen Foundation. Mario Gollwitzer will present preliminary findings from this project and, finally, reflect on the usefulness and the feasibility of their approach. [more]

[more]

[more]

The Atrocity Crimes Advisory Group (ACA) supports the Ukrainian Office of the General Prosecutor in its chal­leng­ing efforts to investigate and prosecute mass atrocity crimes in the context of the Russian ag­gres­sion against Ukraine. Klaus Hoffmann, an expert member of this group will report about his work in Ukraine, the legal chal­leng­es of applying national criminal law as well as the practical problems of investigating and prosecuting war crimes, crimes against humanity, genocide, and the crime of ag­gres­sion during the ongoing war. He will also comment on the issue of “trials in absentia”. [more]

Struggles for recognition often concern not only the right to be heard but also to be believed. A recurrent criticism of criminal justice systems in Germany and elsewhere holds that the testimonies of some witness groups such as alleged victims of sexual offenses are not adequately believed. This criticism raises worries about the legitimacy of criminal procedures and should not be dismissed as mere empirical matters. One of the most influential theories in contemporary philosophy, Miranda Fricker's account of epistemic injustice, explores forms of injustice which persons may be exposed to in the production of knowledge and in giving testimony. The account provides a philosophical lens for analyzing German criminal procedural law. In particular, the talk examines the claim that epistemic justice may and should be considered an implicit principle of criminal procedural law, with implications for two case examples: the pre­sump­tion of falsity of witness statements, established in a landmark decision by the German Fed­eral Court of Justice over twenty years ago, as well as the way the justice system addresses specific group-based biases in judicial reasoning such as racial bias. Both suggest legal reforms. [more]

A dominant theme in criminal law theory is that censure and punishment are appropriate only insofar as they are proportional responses to culpable actions. The problem is that much of existing criminal law does not fit this model. A number of responses to this mismatch have been proposed. Perhaps the criminal law should be reformed to match the theory; perhaps we can do more to understand how even violations of mala prohibita offenses are culpable; perhaps we need to take this connection as aspirational but not strictly binding; or perhaps we should recognize that the connection between punishment and culpable actions is just a misguided ideological fixation—in truth, we are better off using a utilitarian conception of the criminal law, according to which it is just a tool to be used to deter potential criminal action and incapacitate potential criminals in whatever way best serves society. I reject all of these options and defend a different account. I argue that the criminal justice system draws on two normative frameworks. Criminal law properly conceived calls for and licenses censure and punishment, but only insofar as they are proportional responses to culpable actions. Penal law operates as a complement to criminal law. It is not responsive (at least not in the same way) to the culpability of action, and it grounds no censure. But it allows for penalties that exceed those that would be proportional to the culpability of an action (and certainly than those that fit Ordnungswidrigkeiten). It is also responsive to, in ways the criminal law is not, the benefits of incapacitating the dangerous. It can do these things because it operates on a separate basis: not retributive response to culpable action but fair forfeiture of the right not to be penalized. These two foundations can be harmonized to provide a normative account of the criminal justice system that fits the law reasonably well but still has some revisionist force. [more]

The ‘Big Data Revolution’ has allowed accumulating significant amounts of statistical data covering all areas of life. Such data can have high probative value in legal trials. Still, courts in and outside the UK have been ambivalent about the possibility of mak­­ing legal judgements based solely on statistics. The presen­­ta­­­tion will seek to uncover the root of this ambivalence, and to suggest that it highlights a fundamental connection between practical normativity and epistemic normativity. The argument will be that a Razian concept of respect for persons provides reasons against legal judgments of liability based solely on statistics. This is because statistics logically bar the elimination of the risk of error, and relatedly, they cannot justify belief in the availability of reasons to make a judgment of liability. The presentation will further seek to demonstrate that the argument carries over to non-legal spheres in which the Razian notion of respect plays a role. The UK’s attempt to determine A-level grades algorithmically during the Covid-19 pandemic provides an example. [more]

Legal hermeneutics could be deemed a broader notion than just legal interpretation. When legal practitioners cope with the law, they often do much more than merely interpret it. Arguably, they engage in legal construction, apply the law to a case at hand, and exercise discretion. In this spirit, the workshop aims to take this more comprehensive perspective of legal hermeneutics ­seriously by inviting its participants to address these various hermeneutic activities in legal adjudication. [more]