Potentials of norm theory in the process of internationalization of criminal law (Constance, september 8â€“10, 2022)
Cf. also the conference report by Jakobi, JZ 2023, 608
This meeting of the working group was dedicated to the potentials of norm theory in the process of internationalization of criminal law. For this purpose, Liane WĂ¶rner, Stefanie Bock, Svenja Behrendt and Laura Neumann invited to Constance from September 8 to 10, 2022. Besides the members of the working group, the international guests Hirokazu Kawaguchi from Meiji University in Tokyo and Adem SĂ¶zĂĽer from Istanbul University enriched the discussion.
The opening lecture was given on the evening of September 8, 2022 Stefanie Bock. In it, she comprehensively illuminated the relevance of norm theory for the internationalization of criminal law. Bock argued that globalization has a direct impact on criminal law because it is accompanied by the transnationalization of crime, which in turn creates a need for a common response. This reaction concerns three major areas, namely the harmonization of national criminal law regulations, international mutual legal assistance and the law on the application of criminal law. In this respect, the challenge is to adequately address the tension between the need for legal harmonization and the preservation of cultural identities. According to Bock, norm theory can gain considerable importance in this context. However, it needs to be discussed further because, at least in its classical form dating back to Binding, it is far from being able to answer all the new questions arising precisely because of the internationalization of criminal law. As an example, Bock referred to the problem of the addressee in international criminal law, which, as criminal law, requires a norm of conduct directed at an individual, whereas international law addresses states. Even if the theory of norms does not provide a panacea for all problems that arise, according to Bock, it still holds significant potential for internationalization in criminal law due to its characteristic orientation towards international norms of conduct that apply across states. In this respect, Bock exemplarily addressed the insight that follows from norm theory for norm interpretation, namely that any international norms of conduct must also be interpreted according to international law, while the sanction norm must be evaluated according to national standards. Differences in the assessment of punishability would thus not call into question the validity of the international norms of conduct, which is of decisive importance for the assessment of legal differences in the sanctioning norms. Moreover, according to Bock, norm theory also affects the evaluation of non-prosecution of norm violations and selectivity in law enforcement practice because, according to norm-theoretical standards, every norm requires a sanction safeguard. Since the individual can thus also demand compliance with the sanction norm, a third dimension of the appeals justified by criminal law norms must be considered. In addition to the requirement or prohibition of certain conduct directed at the individual and the requirement directed at the state to punish those who violate the requirement or prohibition of conduct, a requirement directed at the international community to sanction all those who violate the requirement or prohibition of conduct could be considered.
After these fundamental considerations in the opening lecture, Konstantina Papathanasiou was the first speaker on Friday morning to address the special problem of the significance of norm theory for criminal application law in the face of digitalization. The starting point of her remarks was the position she took, following Ulfrid Neumann, that Â§Â§ 3 et seq. German Criminal Code are to be classified as elements of a crime and accordingly are not indifferent in terms of law. On this basis, Papathanasiou explained the criminal application law problems in the areas of cybercrime and crypto exchanges. With regard to cybercrime, she emphasized the problem that the potential endangerment offenses prevalent here could not establish a place of success within the meaning of Â§ 9 para. 1 of the German Criminal Code, so that recourse to other criteria was necessary. With regard to crypto exchanges, she referred to the Commission's proposal for a regulation on markets for cryptocurrencies. The fact that the market abuse regulations established therein should also be applicable to acts and omissions in third countries, and that the scope of application of the provisions of the German Criminal Code should be extended via Â§Â§ 3 et seq. German Criminal Code, the scope of application of the accessory criminal laws would be extended accordingly, leading to the admission of the universal validity of national criminal laws through the back door. In the following discussion, Bock raised the question why an application of foreign law was possible in civil law, but not in criminal law, and whether the idea of vicarious criminal justice did not have to be rethought in a globalized world.
The following lecture by Yuki Nakamichi dealt with the universalization of norm-theoretical potential using the example of copyright law. In doing so, Nakamichi generally demonstrated the potential of norm theory for a unified structural analysis of German and Japanese criminal copyright laws beyond their linguistic differences. Specifically, he elaborated intensively from a norm-theoretical perspective on the distinction between "rules" and "standards" going back to Louis Kaplow, which would be reflected in the differences between the copyright models of legal restraints on the one hand and fair use on the other. In the ensuing discussion, the preferability of rules or standards was intensively debated on a norm-theoretical basis, emphasizing in particular the problem associated with standards of a lack of concretizability of the norms of conduct. Finally, Behrendt remarked that, on the basis of standards, a conclusive comprehension of the behavioral norm is ultimately impossible.
The conference continued with an English-language talk by Kyriakos Kotsoglou, in which he analyzed the structure of legal presumptions. By way of introduction, Kotsoglou pointed out that he understood norm theory not exclusively in the sense of Bindings, but more comprehensively as a theory of the analysis of norm structures, because law, given its complexity, cannot be reduced to a single position. From this starting point, Kotsoglou demonstrated the functionlessness of the in dubio pro reo principle by means of an analysis of the structure of the presumption of innocence based on default-deontic logic in conjunction with the principle enshrined in Â§ 261 German Criminal Procedure Code that the judge must decide according to his conviction. The doubts presupposed by this principle would not exist in criminal proceedings. Rather, the defendant was to be treated as innocent and acquitted unless the lawful judge was sufficiently convinced of his guilt. In this case, he was to be convicted. A third possibility did not exist.
Like Kotsoglou, Antonio Martins in his subsequent lecture considered norm theory in a comprehensive sense, not specifically oriented to Bindings, by questioning, with a view to the international enforcement of national substantive criminal law, the potential function of norm theory to function as a universal grammar of criminal law and thereby to tend to unify the normatively different national legal systems, despite certain overlaps, by creating a second-order normativity. Given the importance of social and political moments for the formation of behavioral norms and selective secondary criminalization oriented to the different needs of different societies, Martins did see the possibility that the different legal systems could learn from each other in common discourse. However, the construction of a universal grammar of criminal law in a meta-discourse would never end.
After the four lectures on Friday morning, the conference continued in the afternoon with a workshop on the potentials of norm theory for criminal and criminal procedure networking and unification from the perspective of foreign legal systems. In accordance with the topic, the panel was composed internationally. Hirokazu Kawaguchi from Japan, Adem SĂ¶zĂĽer from Turkey, InĂŞs Godinho from Portugal, Zhiwei Tang from China, and Juan Pablo Montiel from Argentina entered into discussion with each other and with the other participants on the basis of keynote speeches.
In his introductory contribution, Hirokazu Kawaguchi highlighted the different function of punishment in international criminal law and what he called civil criminal law. In international criminal law, punishment serves to establish the norm, while in civil criminal law it serves to maintain the norm's validity. In the latter context, Kawaguchi dealt specifically with the classification of the withdrawal from the attempt as a question of the norm of conduct, which is justified by the fact that the offender's statement on the validity of the norm of conduct becomes contradictory in itself through his withdrawal, so that the need for punishment as a contradictory answer to the offender's negative statement on the validity of the norm ceases to exist with the withdrawal. Such a view presupposes an understanding of the attempt as an incomplete offense.
In his panel contribution, Adem SĂ¶zĂĽer pointed out important cornerstones of the development of criminal law in Turkey. In particular, he addressed the highly controversial liberalization of the sexual penal code there, which shows the discrepancy in socially accepted norms of behavior. Many judges would also not accept the liberalized sexual penal law in its current form. In general, however, opposition comes from a wide variety of directions. The debate reached a climax, he said, when President Recep Tayyip ErdoÄźan ordered Turkey to withdraw from the Istanbul Convention on the Protection of Women from Male and Domestic Violence on July 1, 2022. The background to such escalating resistance to the liberalization of sexual penal law is the idea that norms of behavior are given by God and are to be taken from the "Holy Book". On the basis of such a view, however, a pluralistic society could no longer exist.
A multifaceted discussion on the contributions of the first two panelists was followed by the contribution of InĂŞs Godinho. She reported that there is no real norm-theoretical discussion in Portugal because no independent judgment of illegality is recognized. However, Â§ 31 of the Portuguese Penal Code, which states that conduct is not punishable if its illegality is excluded by law, indicates that a need is seen to emphasize the existence of an independent wrong. The criminal laws would thus presuppose norms of conduct, but would not always make this clear. This is precisely where norm theory could make a contribution. This was underlined by Godinho with a quotation from Joachim Renzikowski, according to which "norm theory as a meta-theory (...) puts criminal law dogmatics in perspective" (Renzikowski, in: Alexy (ed.), Juristische Grundlagenforschung, 2005, p. 115 (137)).
The following contribution Zhiwei Tang moved along the same lines, which was immediately evident from the fact that he supported his remarks with the same quotation from Renzikowski that Godinho had also used. Tang emphasized the character of norm theory as a potentially universally persuasive theoretical structure that could be developed into a universal grammar. To illustrate the potentials that norm theory thus has for analyzing the criminal laws of any legal system, Tang discussed, among other things, the incapacitated attempt currently treated differently in national legal systems and the materiality threshold used as an element of the offense in Chinese criminal law. From a norm-theoretical perspective, the latter proves to be questionable because it is associated with a relativization of the behavioral norm.
In the last contribution in the workshop, Juan Pablo Montiel showed that criminal procedural norms should be qualified neither as norms of conduct nor as norms of sanctions, but rather as empowering norms and thus as a third category of norms, which is largely misunderstood in the Argentine discussion. In this context, he addressed the difference between burdens and obligations. It is true that both burdens and obligations recommend the performance of a certain conduct in order to benefit from a more favorable regulation. However, the violation of an obligation is only attributable to the addressee if he had the opportunity to comply with the norm. In the case of burdens, on the other hand, it is irrelevant whether the addressee was able to comply with the norm. Thus, obligations are dependent on fault, whereas burdens are independent of fault.
In the discussion concluding the workshop, it was controversially discussed, in particular following Godinho's remarks, whether procedural norms should be classified as positive supplementary norms to normative truth or as its limitation, as Godinho had argued. It was pointed out that the distinction between procedural and substantive truth in common law and in civil law corresponds to the different positions taken in this regard. The discussion was rounded off by Behrendt asking whether a meta-discourse on meta-theories was not necessary. It is true that an agreement between the different kinds of norm theories will hardly be possible. However, the clarification that one is materially discussing the same thing could possibly lead to a more understanding discourse.
The first day of the conference ended with short closing statements by the panelists of the workshop.
The first panel on Saturday, September 10, 2022, was specifically devoted to the potentials of norm theory for European criminal law.
The conference day opened with a presentation by Laura Neumann on the potentials of norm theory for the approximation of substantive criminal law in the European Union. In this paper, Neumann showed that the theory of norms, in view of the so-called annex competence of article 83 (2) TFEU, is already today the de facto structural basis of the harmonization of criminal law in the European Union. Therefore, it could be used as a means of interpretation and to determine the scope of the annex competence standard. Moreover, the elucidation of the norm-theoretical structure of competence has the potential to make norm theory fruitful as a basis for consensus-building in the criminal law harmonization process, because it can rationalize the debate about the legitimacy of annex competence and serve overall as a basis for understanding across legal orders.
The contribution by Neumann was followed by a presentation by Anne Schneider on the harmonization of criminal procedural law. After an overview of the subject matter and relevant legal acts, Schneider pointed out that the criminal procedural norm has a dual nature. On the one hand, it is addressed to the criminal prosecution authorities as a special norm of conduct; on the other hand, it concerns the manner of imposing sanctions, which the norm of sanctions obliges. The criminal procedural norm was therefore an essential component of the sanction norm, so that its interpretation also depended on theories of crime and the purposes of punishment, on the basis of which differences in criminal procedural law had to be justified as discriminations requiring justification. This concept was very positively received in the subsequent discussion.
The two lectures were followed on Saturday morning by another workshop devoted to the potentials of norm theory from the perspective of international criminal law. Panelists were Stefanie Bock, Boris Burghardt and Markus Wagner.
The contribution of Markus Wagner was the prelude. In it, he explored the question of what norms of conduct underlie international criminal law. This is questionable, he argued, because the norms of international law are directed at states, but an individual-directed norm of conduct is required for a (international) criminal charge. Such a norm could in principle be derived from individually addressing sanctioning norms, but this was not unproblematic. As other possibilities to obtain individual-addressing norms of conduct for international criminal law, Wagner considered, among other things, a change of addressee via art. 25 sentence 2 of the German Constitution as well as the ratification and domestic implementation of international treaties into national law. In the latter case, however, the norm of conduct under international law would have to be drawn from national law. Ultimately, a coherent solution to the problem was not apparent.
In his subsequent contribution, Boris Burghardt highlighted four problematic points of a norm-theoretical analysis of international criminal law, which tied in with Wagner's remarks. Burghardt also saw the generation of behavioral norms from international criminal law norms as problematic. It is already difficult to work out the primary norm area to which the accessory norms of international criminal law are linked. Equally problematic, however, was the derivation of concrete individual norms of conduct from individual norms of international criminal law. In this context, Burghardt pointed out, among other things, the question of integrating the contextual element of the norms of international criminal law into the norms of conduct. In addition, he considered linking the generation of the norms of conduct to the pre-positive core of international criminal law. Further, he offered reflections on the problems of the inverse relationship of the law of peacetime and the law of war to each other, revealed by a norm-theoretical consideration, and concluded by raising the question of the extent to which conceptual re-sharpening of the theory of norms developed in a quite different context on the basis of considerations of international criminal law was necessary.
Following on from Burghardt's remarks, Stefanie Bock also offered further thoughts on where the context element of international criminal law norms and special intentions under international criminal law should be located. In this respect, she argued in favor of an assignment to the sanctioning norm, since it is through the context element or the special intent under international criminal law that the international community's power to sanction is triggered and, if necessary, exercised by a national community as a proxy for the international community.
In the concluding discussion, among others, the latter point of view of the assignment of the context element to the norm of conduct or sanction was controversially discussed. Martins and Wagner argued in favor of a location in the norm of conduct in order to preserve the specificity of the violation under international law and thus to ensure the correlation of the wrongfulness dimension of the norm of conduct with the norm of sanction. WĂ¶rner then questioned the origin of the international criminal law norms. In this context, she pointed out that constitutions in the 19th century were not intended to address the citizen. Rather, subjective rights for the citizen would have developed later. Finally, referring to Russia's arguments on the war in Ukraine, the general danger of instrumentalizing international criminal law for legitimization purposes was pointed out.
Finally, WĂ¶rner, as host, concluded the session with words of thanks and summary as well as the outlook for further projects.
Normentheorie im Zeitalter der Digitalisierung (18./19. Juni 2021)
Am 18. und 19. Juni 2021 veranstalteten Frauke Rostalski und Milan Kuhli die Online-Tagung â€žNormentheorie im Zeitalter der Digitalisierungâ€ś. Die â€žDigitale Transformationâ€ś beschreibt einen Paradigmenwechsel: den rasanten Wechsel zu einer weitgehend digitalisierten Arbeits- und Lebenswelt. Der Einsatz digitaler Technologien erstreckt sich tief in die Gesellschaft hinein; Daten und Algorithmen werden zum Teil ihrer Infrastruktur. Die Digitalisierung als gesellschaftliches PhĂ¤nomen wirft auch im rechtlichen Bereich zahlreiche Fragen auf: Inwieweit verschieben sich Aspekte einer normentheoretischen Betrachtung im digitalen Zeitalter bzw. inwieweit ist eine normentheoretische Analyse des Rechts ĂĽberhaupt noch tragfĂ¤hig? KĂ¶nnen Roboter bzw. digitale Maschinen Rechtsnormen anwenden und gegen Rechtsnormen verstoĂźen? Wie kann die Programmierung von Maschinen normentheoretisch rekonstruiert werden? Die digitale Transformation macht es einmal mehr nĂ¶tig, sich auf die Fundamente unserer Rechtsordnung zu besinnen. Welchen Beitrag kann die Normentheorie zur Adressierung und Perspektivierung neuer Sachverhalte bzw. Rechtsfragen leisten?
Den Auftakt der zweitĂ¤gigen Tagung machte Lorenz KĂ¤hler mit seinem Beitrag â€žNorm, Code, Digitalisatâ€ś. Von der PrĂ¤misse ausgehend, dass das Recht â€žim Kern als eine Menge von Normenâ€ś zu verstehen sei, widmete er sich der Frage, ob Digitalisierung â€žeine Publikation, Duplikation oder gar Transformation des Rechtsâ€ś bedeute. KĂ¤hler warf dabei die These auf, dass es im Kontext einer Digitalisierung des Rechts darauf ankommt, ob es gelingt, nicht nur den Normtext zu digitalisieren, sondern darĂĽber hinaus auch seinen semantischen Gehalt zu erfassen. In seinem Beitrag geht er dieser Frage weiter nach.
Stephan Meyers Vortrag â€žDigitale Anwendbarkeit von Rechtsnormen â€“ Auch eine Frage des Rechtskreises?â€ś fragte danach, ob die Herausforderungen, die sich bei der autonomen Rechtsanwendung durch Systeme KĂĽnstlicher Intelligenz stellen, auch vom Rechtskreis abhĂ¤ngen. Verglichen werden der kontinentale Rechtskreis und der Common-Law-Rechtskreis. In seinem Beitrag schilderte Meyer zunĂ¤chst kursorisch die erhofften VorzĂĽge autonomer Rechtsanwendung, die die Automatisierungsdebatte veranlassen. AnschlieĂźend wurden bereits vorhandene KI-basierte â€žLegal Techâ€ś-Anwendungen vorgestellt und zukĂĽnftig zu erhoffende Fortschritte, die regel- und datenbasierte â€žLegal-Reasoningâ€ś-AnsĂ¤tze zusammenbringen, erĂ¶rtert. Unter Voraussetzung dieser Fortschritte, die den Maschinen zumindest in einem gewissen Umfang Weltwissen und die FĂ¤higkeit zu â€žechtemâ€ś Textverstehen verleihen kĂ¶nnten, wurde zuletzt nach der Eignung der beiden Rechtskreise zur Automatisierung gefragt.
Alexander StĂ¶hr befasste sich in seinem Beitrag â€žSchĂ¤digung durch autonom handelnde Maschinen â€“ Verantwortungszuweisung durch Haftungs-, Zurechnungs- und Beweisnormenâ€ś mit der Frage, welche juristischen LĂ¶sungen im Hinblick auf die Haftung in Betracht kommen, wenn eine SchĂ¤digung durch autonom handelnde Maschinen erfolgt. Verantwortungszuweisung erfolge durch Normen, welche zunĂ¤chst in Rechtsnormen, darunter Haftungsnormen, Zurechnungsnormen und Beweisnormen sowie Ă¶konomische Normen kategorisiert werden. AnschlieĂźend erĂ¶rterte StĂ¶hr, inwieweit sich vertragliche und deliktische Haftung begrĂĽnden lassen. Im Rahmen der deliktischen Haftung wurde neben der lex lata auch die EinfĂĽhrung einer Eigenhaftung der Maschinen sowie einer GefĂ¤hrdungshaftung diskutiert.
Dem Beitrag von Alexander StĂ¶hr folgte ein Kommentar von InĂŞs Fernandes Godinho, in welchem die Verantwortungszuweisung bei SchĂ¤digung durch autonom handelnde Maschinen aus einer strafrechtlichen Perspektive beleuchtet wird. Godinho schilderte zunĂ¤chst die Haftung von Personen wegen autonom handelnder Maschinen. Ausgehend hiervon wurde skizziert, welche Schwierigkeiten sich im Hinblick auf FahrlĂ¤ssigkeitsdelikte im Rahmen der Zurechnung, insbesondere bei der Vorhersehbarkeit, ergeben, bevor Godinho darĂĽber nachdachte, ob KI-basierte Systeme und Maschinen strafrechtlich haften (werden).
Der erste Tag wurde mit Alisa Hastedts Beitrag â€žSchranken statt Normen? Ăśberlegungen zum Einfluss von Impossibility Structures auf Verhaltensnormenâ€ś beendet. Dieser widmete sich der Frage, ob Mechanismen, die rechtswidriges Verhalten unmĂ¶glich machen sollen, die ihnen zugrunde liegenden konkretisierten Verhaltensnormen ĂĽberflĂĽssig machen. Diese Frage wurde nach einem Impulsvortrag von Alisa Hastedt gemeinsam mit den Teilnehmenden der Tagung in einem offenen WerkstattgesprĂ¤ch besprochen. Im Tagungsband findet sich hierzu keine Dokumentation.
Svenja Behrendts Beitrag â€žEntscheiden im digitalen Zeitalter. Ăśberlegungen zu den Auswirkungen smarter Technologie auf Verhaltenspflichtbildung und Verantwortlichkeitâ€ś thematisierte die Frage, welche Auswirkungen die Existenz kĂĽnstlicher Intelligenz rechtstheoretisch auf die Verhaltenspflichten und auf die Verantwortlichkeit, genauer: die RechtsverhĂ¤ltnisse unter Menschen hat. Behrendt zeigte zunĂ¤chst auf, in welchen Konstellationen KI relevant werden kann. Hiervon ausgehend wird diskutiert, ob und inwieweit eine Pflicht zur Hinzuziehung von KI oder gar eine Pflicht zur Verwendung des maschinell erzeugten Ergebnisses bestehen kann und welche generellen Auswirkungen die Existenz von KI mit sich zieht.
â€žAlgorithmen in der Rechtsanwendungâ€ś bildeten das Thema des Beitrags von Roland Broemel. Er befasste sich mit verschiedenen Formen des Einsatzes von Legal Tech-Anwendungen bei der Bereitstellung von Rechtsdienstleistungen und deren rechtlichen Rahmenbedingungen.
Den Abschluss der Tagung bildete ein Vortrag von Philipp-Alexander Hirsch zu â€žKĂĽnstliche Intelligenz, normative Ansprechbarkeit und die normentheoretische Beschreibung des Strafrechtsâ€ś. Hirsch nahm KI in den Blick, die zwar normativ ansprechbar ist, ohne jedoch bereits voll verantwortlicher Akteur zu sein. Verletzt so beschaffene KI strafbewehrte Verhaltensnormen, entstĂĽnden straffreie RĂ¤ume. Hirsch zeigte auf, warum und wie solche KI normativ ansprechbar ist und welche Konsequenzen sich hieraus fĂĽr die normentheoretische Beschreibung des Strafrechts ergeben. Dabei griff er auf Erkenntnisse der Maschinenethik zurĂĽck, weil dort im Vergleich zur juristischen Normentheorie die Debatte um normative Akteurschaft weiter vorangeschritten sei.
Collectivization as a Challenge for Criminal Law (Bonn, 18/19 october 2019)
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 KindhĂ¤user 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 KindhĂ¤user started with with his guest lecture "duty violation in cases of joint commission of an offence â€“ 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 â€“ unilateral â€“ 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, KindhĂ¤user 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 KindhĂ¤user, Renzikowski comes to the conclusion â€“ among others by recourse to Kant and Pufendorf â€“ 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 Â§Â§ 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 Frischâ€™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, InĂŞs 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 â€“ 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 RĂ¶singer 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 RĂ¶singer, 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 â€“ guilt by association? Participation in dangerous groups within the meaning of Â§ 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 Â§ 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)
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 Bindingâ€™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 Rostalskiâ€™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 Kuhliâ€™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 â€“ but it can be found in the conference proceedings â€“ the second day of the session started with the lecture by SĂ¶ren LichtenthĂ¤ler 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 Astâ€™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 Kelsenâ€™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 Bindingâ€™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 WĂ¶rner, in which she traced the "career" of the term â€śfunctional efficiency of (Europeanized) criminal justiceâ€ť 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.