Theory of Criminal Law
Independent Research Group
The “Theory of Criminal Law” Research Group focuses on the analysis of substantive criminal law and criminal procedure and the doctrine in these areas; the analysis centers on the underlying normative structures and principles in order to assess their coherence, justifiability, and persuasiveness. The aim is to draw on the fruits of this analysis to engage in normative theory-building that proposes solutions to problems in criminal law that go beyond interpreting the positive law. This requires integrating the doctrine and practice of criminal law, on the one hand, with other sciences — practical philosophy in particular — on the other.
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The Research Group welcomes research projects on all “classical” questions of criminal-law theory, such as the justification of punishment, the nature of criminal wrongdoing, criminalization and the limits of state punishment, or the definitional features of criminal responsibility. However, the Research Group’s work concentrates on the following three research topics:
Theory of Subjective Imputation
What distinguishes a criminal offence from other norm violations in the first place is subjective imputation, because attributions of responsibility in criminal law are based on certain inner attitudes and states of the offender. However, it is unclear how we are to conceptualize these. Not only is the traditional understanding of intent and negligence increasingly faltering in the German criminal-law discussion but we are also finding alternative descriptive models of the subjective aspect of criminal offences outside of German criminal-law doctrine. The Research Group investigates the factual and normative assumptions underlying subjective imputation, looking beyond national doctrines. To do so, the Research Group draws upon insights from other sciences – especially from practical philosophy. In addition, the Research Group seeks exchange with the discussion on mens rea in Anglo-American criminal-law theory with a view to identifying discursive similarities and differences and developing approaches for a transnational theory of subjective imputation.
Relationality of Crime
Traditionally, criminal-law theory views crime as a wrong that, in normative terms, takes place solely in the relationship between the offender and the state. Under this view, the state seeks, through criminal regulations, to protect certain legal goods (Rechtsgüter) from harm. In contrast, the Research Group will develop an alternative conceptual model according to which the conception of criminal wrongdoing as the harming of a state-protected legal good is incomplete and, instead, criminal wrongdoing must be conceptualized in a primarily relational way — that is, it must be understood first and foremost as the violation of intersubjective rights to the absence of such harms. One aim of this new theory of crime is to make it possible to describe crimes as violations of individual rights and, at the same time, violations against the legal community as a whole. Another aim is to foster the development of new criteria for the criminalization of behavior, for subjective imputation, and for victim participation in criminal proceedings.
Criminal Law in the Age of Reason
More than almost any other century, the period from 1730 to 1830 shaped our contemporary understanding of criminal law. In one of the many transformations of the Enlightenment, modern German criminal law and criminal jurisprudence developed as an independent academic discipline. Additionally, important “theoretical choices” were made that not only have a latent effect on today’s criminal-law doctrine but also serve as reference points for the debates in criminal-law theory to this day (ranging from questions of criminalization to questions surrounding the justification of punishment). The Research Group seeks to chart the “unchartered territories” on the map of eighteenth-century criminal-law theory and critically investigates the potential that authors and ideas of this period can have for contemporary criminal-law theory.