Collectivization as a Challenge for Criminal Law (Bonn, 18/19 october 2019)

conference proceedings

For criminal law scholars, Bonn with its criminal law teachers Hans Welzel and Armin Kaufmann is considered the birthplace of modern norm theory. Thus, there is hardly a better city in which the working group norm theory could have met for a second workshop. On October 18 and 19, 2019, Konstantina Papathanasiou and Kay H. Schumann invited to talk about "Collectivization as a Challenge for Criminal Law" from a norm-theoretical perspective. In addition to the members of the working group, prominent norm theorists Urs Kindhäuser and Joachim Renzikowski enriched the workshop with two guest lectures; among others, Ingeborg Puppe joined the audience and fueled the discussion with astute questions and comments.

Urs Kindhäuser started with with his guest lecture "duty violation in cases of joint commission of an offence – semantic problems of the participation doctrine". He dealt with the question why co-perpetrators can be held mutually responsible for their contributions to the crime, although each co-perpetrator could only avoid the crime by his own dutiful alternative behavior. Considering the contributions of the co-perpetrators as the performance of a collective person does not help, because this only allows the logical conclusion of the responsibility of the collective, but not the conclusion of the responsibility of its members. It follows from this that the wrong of complicity, like the wrong of participation, is accessory in nature. However, in contrast to conventional – unilateral – participation, complicity is characterized by reciprocal participation. In this respect, the co-perpetrator violates a different norm than the individual perpetrator, because it must incorporate the element of communality. Finally, Kindhäuser pointed out that the norm-theoretical analysis of complicity is still in its infancy. Kay H. Schumann concluded the first day of the workshop with norm-theoretical considerations on so-called collective legal rights.

The second day of the workshop started with the guest lecture by Joachim Renzikowski on "Collectives as Subjects of Attribution". He pointed out that "persons" as subjects of imputation are not an object of empiricism, but belong to the world of law or practical philosophy. The talk of the "natural person" alongside the "legal person" is therefore misleading, which is why Renzikowski puts the concepts of "persona moralis simplex" and "persona moralis compositas" in their place. In contrast to Kindhäuser, Renzikowski comes to the conclusion – among others by recourse to Kant and Pufendorf – that the acts of the collective can be attributed not only to the collective, but to each member of the same. Although the parts of the whole consisted of individual physical persons, every act performed by an individual in his function as part of the whole was an act of the whole and thus also an act of each individual. Against this background, Renzikowski then discussed exemplary criminal law dogmatic problems.

Anne Schneider discussed the norm-theoretical problems of "cross-border participation". Problems arise in particular when the values of the legal systems according to which the conduct of the participants in the crime is to be judged differ considerably. This leads first of all to the scope of application of the norms of conduct and penal sanctions. While the latter is regulated by §§ 3 et seq. German Criminal Code, the scope of the behavioral norms must be determined uniformly and across legal fields. For this purpose, recourse to the provision of Article 17 of the Rome II Regulation, according to which, in principle, the rules of conduct of the place of action apply, would be appropriate. The consequences of its conception were then exemplified by Schneider on basis of several example cases. The norm-theoretical analysis of cross-border participation opens the view of methodological approaches with the help of which the proliferation of German criminal liability can be contained.

Next, Markus Wagner illuminated "'The' Behavioral Norm of the Criminal Responsibility of the Principal". The common thread is Wolfgang Frisch’s repeated demand that the central task of (criminal) jurisprudence must be to elaborate in a precisely formulated manner the norms of conduct on the negation of which a criminal accusation can be based according to the respective sanction norm. Particularly in the context of principal responsibility, this requirement is rarely observed in legal practice, as Wagner presented with a current example from the case law of the German Federal Court of Justice. This leads to an overestimation of the influence of the principal on a possible wrongdoing of his subordinates and, as a consequence, often to an unacceptable extension of criminal liability. The lecture showed that the norm theory forces the legal practitioner to explicitly disclose the behavioral alternatives of the principals. In this context, it could arise that the principal is subject to considerable limits in terms of the avoidability of the realization of the wrong.

After a lunch break, Inês Fernandes Godinho gave a presentation on "The Collectivization of the Norm and Collective Norms." She presented the connection between "collectivization" and norms as follows: Only (and only) from collectivization in the sense of a union of people into a community does the need for norms arise. However, norms would only be accepted if their author could demonstrate a corresponding legitimacy. Only then would he be regarded as the norm giver. Collective norms" are norms that affect all participants – but who is a participant in this sense? According to Godinho, this can only be the members of the community who have become such through "collectivization".

In her lecture, Luna Rösinger dealt with the "legal ground of the claim of the one in favor of the other in the so-called aggressive emergency". She interpreted the aggressive emergency as a case in which dangers are "collectivized" or "redistributed" by law. According to Rösinger, considerations of legal philosophy lead to the conclusion that the freedom of the addressee of the intervention in the case of aggressive necessity may only be restricted on the basis of his duty of solidarity. On the one hand, this had the consequence that the danger must threaten a legal good that must have an essential meaning for the realization of freedom, on the other hand, that acts of necessity may only cause at most partially substitutable impairments.

The final lecture was given by Stefanie Bock with her lecture "in for a penny, in for a pound – guilt by association? Participation in dangerous groups within the meaning of § 184j German Criminal Code", in which she discussed the recently introduced criminal provision from a norm-theoretical perspective. She argued that the provision should be understood as a reaction of the legislator to the sexual assaults that occurred on New Year's Eve 2015/2016. Against the background of these events, it could be roughly understood which conducts the legislator wanted to be punished. However, the terminology and regulatory structure of § 184j German Criminal Code are very diffuse and hardly comprehensible, which is why the demarcation between permitted and prohibited (as well as punishable) behavior poses considerable difficulties. Bock came to the conclusion that the criminal norm is not a sexual offense, but a systemic, group-related attribution rule. However, since it suffers from serious deficiencies, Bock argues that it should be deleted without replacement.

Norm theory and criminal law (Giessen, 23/24 February 2018)

conference proceedings

From 23 to 24 February 2018, the workshop "Normentheorie und Strafrecht" (Norm theory and criminal law) took place in Giessen. The aim of this meeting, initiated and organized by Anne Schneider and Markus Wagner, was to reflect on the background of norm theory and its significance for criminal law.

The first contribution was by Fedja Alexander Hilliger, who examined the legal-theoretical preconditions of Binding’s norm theory: The distinction between criminal laws and norms of behavior as well as the assumption that the latter are independent of the former imply, on the one hand, a rejection of legal realism, which conceives of law not as an ideal but as a mere factual phenomenon, and, on the other hand, a "low-threshold" concept of law, according to which legal rules without sanctions are conceivable.

Next, Kyrakos N. Kotsoglu took a critical view of norm theories in the wake of Binding, accusing them of being too under-complex to do justice to the challenges of modern legal systems and the state of their dogmatic penetration, because they adhered to the naive view that what is legally intended can be distilled out of the written laws in the form of a precise norm of behavior in layman's terms. Moreover, they conceived the relationship between the state and its citizens essentially as one of command and obedience, of sovereign and subject.

With regard to criminal constitutional law, Boris Burghardt also critically assessed the yield of norm theory in his subsequent contribution: In his opinion, the differentiation between behavioral and sanctioning norms, which is also partially practiced in the case law of the German Federal Constitutional Court, obscured the view that the decision to establish a behavioral norm under criminal law already implies the assessment that this prohibition (or the legal interests protected by it) has an outstanding social significance.

With a different thrust, Laura Neumann also assumed in her contribution that the dualistic norm theory as a legal-theoretical principle of construction was indifferent to the type of behavioral norm violated and the type of sanction threatened. For this reason, the norm theory catalyzed the merging of criminal and administrative criminal law into a uniform sanctions law in the European states and could serve as a legal constructivist basis for a uniform sanctions law in Europe in the future.

The aim of Frauke Rostalski’s following lecture, which marked the transition to the criminal law dogmatic consequences of norm theory, was to show that wrongdoing and guilt could not be separated on the basis of a norm-theoretical understanding of the concept of crime. For the behavioral norm, the violation of which constitutes injustice, can be directed from the outset only to those addressees who are capable of complying with it in the first place, i.e. who are culpable, because everything else amounts to a "soliloquy" of the legislator.

The conclusion of the first day of the workshop was Milan Kuhli’s contribution on the question of the necessary reference to intent in legal references, in which he argued that normative elements of the offense and blank elements cannot be clearly distinguished from one another in terms of norm theory, which is why the question of the necessary content of intent should not be made dependent on such a distinction. Rather, intent must in principle refer both to the actual requirements of the norm(s) to which the respective elements of the offense refer and to the legal consequences resulting therefrom.

Because the originally planned lecture by Jan Dehne-Niemann and Julia Marinitsch on the importance of norm theory for the solution of the "Rose-Rosahl case" unfortunately had to be cancelled at short notice – but it can be found in the conference proceedings – the second day of the session started with the lecture by Sören Lichtenthäler on the consequences of norm theory for the unequal electoral determination. Although, in his observation, arguments explicitly labeled as "norm-theoretic" were put forward in the recent debate over the constitutionality of unequal choice sentencing, he ultimately concluded that norm theory alone does not yield answers to such questions.

This was followed by Stephan Ast’s lecture, in which he used a norm-theoretical analysis of fraud to show how the reformulation of a criminal offense into norms of behavior can proceed, what has to be taken into account in terms of action and norm theory, and what consequences this can have for interpretation.

Then, Thomas Grosse-Wilde gave an overview of the "multiplicity of norm theories in English-language legal discourse", in which he referred to the distinction between norms of conduct and sanctions according to Bentham, the criticism of Kelsen’s unitarist theory of norms formulated by Hart, and the discussion of the differentiation of conduct and decision rules introduced by Dan-Cohen.

In her subsequent lecture, Konstantina Papathanasiou, against the background of Binding’s norm theory, dealt with the opinion common to so-called international criminal law, according to which the norms of conduct apply universally and only the norms of sanctions are limited by the law on the application of punishment: This is, among other things, incompatible with the principle of non-interference, which has been generally accepted as customary international law for a long time, which is why the norms of conduct and the norms of sanctions must have the same scope of application and the law of the application of punishment is also not, as is generally assumed, neutral in terms of law.

The first meeting of the working group was concluded by the presentation of Liane Wörner, in which she traced the "career" of the term “functional efficiency of (Europeanized) criminal justice” in the jurisprudence of the European Court of Justice and traced its significance, in terms of norm theory, to the discrepancy between the determination of norm content and the addressing of sanctions. The goal of a criminal justice system that is as functional as possible, however, is limited by the defendant's civil rights, which are guaranteed in a complementary manner by both the Union and the member states.