14.02.2023

Dr. Svenja Behrendt

Attempting the Impossible: Impossibility in Criminal Law Theory and the Constructivist Discourse-Theoretical Concept of Law

The lecture dealt with the conceptual management of the phenomenon of impossibility in criminal law theory. It focused on the following question: Is criminal liability legitimate if the action project will not succeed or is not even considered criminally relevant for legal reasons? Svenja Behrendt dealt with different approaches to the justification of criminal wrongdoing, distinguishing between strictly objective (objectivity based on a deterministic view of the world), weakly objective ("objectification" of the behavioural norm, fictitious objective third party as a measuring figure) and subjective approach models. She elaborated on why no approach model is convincing and argued that the prevailing mixed subjective-objective approach leads to mostly acceptable results but lacks a resilient theoretical foundation.
Behrendt‘s core thesis is that the central problem lies in the legal understanding and conceptualisation of the behavioural norm. She argued against monist/objectivist concepts of legal ought’s (in the professional discussion). If a constructivist, discourse-theoretical understanding of the law is taken as a basis, it becomes clear that the breach of a criminal law norm of conduct is present in all of the cases which are under discussion in reference to impossibility. The focus shifts to whether it is necessary to react at all to the exercise of a volition directed towards the breach of a conduct norm and, if so, whether this must be done in a formal manner. If the observing/judging interpreter (e.g. a public prosecutor or a judge) does not even share the understanding of the acting agent that the criminal law entails the abstract conduct norm, then there is generally no need for a communicative reaction. The situation would be different if he or she - just like the acting actor – is in agreement with regard to the abstract level of conduct norms (e.g. that it is prohibited under threat of punishment to kill a person) and is only of the opinion that the abstract norm does not prohibit the concrete action project (cases of superstitious attempt).

The corresponding paper published as Behrendt, ZfIStw 2023, 20

26.08.2022

Prof. Dr. Juan Pablo Montiel

Responsibility structures and anomalous contexts

Juan Pablo Montiel argues, above all, that criminal law doctrines face serious problems in establishing criminal responsibility in cases other than those of intentional crimes. In his opinion, the prevailing doctrine has tried to solve all cases by adapting the rules of these crimes to all contexts. To clarify the issues, Montiel begins by distinguishing between the concepts of "crime" and "responsibility structure", assuming that there is a single concept of crime that can be used in different structures. This concept of "crime" consists of the connection of two indispensable attributes: on the one hand, illegality", which connects the act with the concept of "punishability" or "injustice", and on the other hand, "imputability" (to the act and guilt).
Finally, the distinction between "offense" and "responsibility structure" allows Montiel to distinguish two groups of structures: the main structure and the subsidiary structures. The main structure corresponds to intentional completed crimes and its primacy is due to historical reasons, which are also reflected in the legislative technique prevailing at the global level: Criminal codes are codes for intentional crimes with special rules for attributing responsibility when the elementary conditions are not met. The rules of attempt and negligence thus appear as exceptions to the rule of intentionally completed crimes. However, this very circumstance shows that the main structure must be supplemented by subsidiary structures when no elementary condition of the offense is present. Montiel argues for the existence of two subsidiary structures: the attempt offense and the defect-based success offense.
Montiel argues that a penalty can be imposed in the case of attempt only if it is assumed that the offense is an independent one and not a derivative form of accountability. Otherwise, the offender would be punished even in the case where the conditions of imputation are met but the norm violation is not. In this sense, Montiel concludes that to overcome this difficulty, the rule of the General Part, which recognizes attempt, provides a description of the characteristics that conduct must have in order to be considered contrary to the norm.
The second subsidiary structure of responsibility is called the "defective success offense". It includes cases of actio libera in causa, actio illicita in causa, negligence, etc., i.e. those in which the perpetrator performs a constituent act under a self-inflicted defect of responsibility. In order for all the elements of the crime to be present simultaneously in these cases, it is necessary to include the act by which the lack of responsibility is caused, taking into account, however, that it may indirectly lead to the realization of the corresponding elements of the crime.
Finally, Montiel focused on the possibility of combining the subsidiary structures and on the consequences that may result from such a combination. Among these, two consequences stand out as particularly relevant to the traditional understanding of the doctrine of crimes: In this system, the conceptual possibility of an attempt is possible in the case of so-called "negligent crimes," and any form of "unconscious negligence" must be excluded from criminal responsibility.

08.04.2022

Prof. Dr. Wolfgang Spohn

Reasoning with conditional norms

Part 1 dealt with fundamental distinctions when speaking of norms: norms as propositions of ought, categorical and conditional (= hypothetical) norms, norms and norm instance, implicit and explicit validity of norms, norms as empirical facts from the external third-person perspective, norms as genuine, not descriptively reducible in the first-person perspective. Only the latter perspective is at stake in all that follows.
The second part dealt with a critique of legal logic, which tries to formalize legal conclusions, especially the legal syllogism, with the means of classical logic. Examples were used to show that these inferences are in principle non-monotonic or 'defeasible' and are based on a non-monotonic conditional, which cannot be handled by classical logic.
In part 3, the basic postulates of the logic of categorical norms were briefly explained. These form a subfield of philosophical logics, namely deontic logic, for which a standard system has emerged. It is structurally the same as doxastic logic (the logic of rational belief). Of course, all these logics are never free from objections.
The fourth part was about the extension to a logic of conditional norms. For this, one has to delve into the conditional logic developed since 1968, which is precisely about the non-monotonic conditional needed for formalizing legal inferences. This has developed into a branching field. An important approach, also advocated by Spohn, is based on the so-called Ramsey test and a doxastic interpretation of the conditional.
Part 5 explained that this approach is equally suitable for understanding conditional norms and their logical capture. Furthermore, it was explained what dramatic consequences it has for the self-understanding of legal theory if one takes this approach seriously. But it must be taken seriously. After all, the previous self-understanding based on classical logic has proved to be inadequate.
Part 6 was about Chisholm’s paradox, as it is called. In deontic logic, it is unclear how to deal with it appropriately. Spohn introduced it to explain a fundamental ambiguity that pervades all normative speech (and which, according to Spohn, underlies paradox): namely, the ambiguity between pure norms and fact-guided norms (by analogy with the distinction between intrinsic and extrinsic values, or "good in itself" and "good as a means"). Spohn’s remarks on the logic of conditional norms were equally ambiguous, but strictly speaking they could only refer to pure norms.
In the seventh part, an outlook was given on what would still have to be done in order to arrive also at a logic of fact-guided norms (which is almost always at stake in the legal context and at any rate in legal syllogism). For this purpose, a consideration of the so-called rank theory developed and propagated by Spohn for 40 years would be indispensable. The lecture concluded with the following 'take-home messages':

1. classical logic is no good for legal logic.
2. study the non-monotonic conditional.
3. distinguish strictly between pure and fact-guided norms.

See further Spohn, RPhZ 2022, S. 5–38

20.01.2022

Prof. Dr. Juan Pablo Mañalich

The closure of systems of penal sanction norms as systems of constitutive rules

The aim of the lecture is to analyse the status of the principle of penal legality as a residual closure rule (“RCR”), yet rejecting its more usual characterisation as a rule that would qualify every action that is not “prohibited according to penal law” as “permitted according to penal law”. For this would imply that penal sanction norms ought to be categorised as regulative rules, whereas they ought to be taken, rather, as constitutive rules, the function of which is – in Wesley Hohfeld’s terminology – to institute liabilities-to-punishment that are correlative to punitive powers. (This renders intelligible why, already in the second edition of the first volume of his “Normen”, Binding renounced the understanding of “penal laws” as norms capable of grounding duties.)

The categorisation of penal sanction norms as constitutive rules finds decisive support in Hart’s conception of rules that establish legal sanctions as a subset of so-called “secondary rules of adjudication”, which in general may be understood as constitutive rules that specify the conditions, the form, and the consequences of the institutionalized application, and enforcement of the rules that make up the corresponding legal system. Among these, (penal) sanction norms are rules “specifying or at least limiting the penalties for violation” of the primary rules of obligation that they reinforce. The applicability of a penal sanction norm consists in that someone whose (imputable) behavior has fulfilled that norm’s antecedent condition comes to occupy a specific institutional position, which corresponds to a (Hohfeldian) liability, the correlative position of which must be a (Hohfeldian) power. Thus, a penal sanction norm is a constitutive rule that, by correlating the realization of its antecedent condition with the imposition of a penal sanction, institutes – in Binding’s words – a “punitive equivalence”.

This takes us back to the initially stated problem, which consists in fixing the exact sense in which the principle of penal legality may be regarded as an RCR. The rules that make up a system capable of being closed through an RCR, on the one side, and the RCR itself, on the other, must be categorially homogeneous: a rule capable of closing any given system of rules needs to be of the same kind as the rules that make up the system closed by that rule. If one further distinguishes between “strong” and “weak” (Hohfeldian) positions, i.e. positions grounded by rules that belong to the normative system under consideration, on the one hand, and positions resulting from that same system not containing rules that ground the corresponding contradictorily opposite positions, on the other, that leads to the following result: the principle of legality must be understood as a constitutive RCR, according to which anyone who is not punishable under a legislatively formulated sanction norm is unpunishable.

28.07.2021

Dr. Zhiwei Tang

Discussion on norm theory in Chinese (criminal) law

The lecture sheds light on the reception status and the current focus of the discussion on norm theory in Chinese (criminal) law. Three main questions are addressed: (I.) how norms and norm theory are understood in China; (II.) the current status and background of the discussion of norm theory in China; (III.) what and in what respect norm theory can contribute to the development of Chinese (criminal) law.

I. Discussion on the concept of norms and the general norm theory in China

The predominant understanding of norms in China is based on the sanction theory of norm, which can be traced back to Soviet-Russian state and legal theory. Based on this, the doctrine of the dual nature of criminal laws is predominantly represented in the field of criminal law. According to this, criminal laws are, on the one hand, the decision norms directed at the judge, and on the other hand, the conduct norms directed at the general public. In contrast to the distinction between conduct and sanction norms in the sense of the German tradition since Binding, according to the dual nature doctrine of criminal laws, conduct and decision norms are two sides of the same coin that are not independent of each other. This understanding of criminal law norms has exerted an influence on the conventional four-element theory of crime that can hardly be overestimated, which ignores the different structures of conduct norms and sanction norms, and the hierarchical relationship between the two types of norms.

II. Recent reception of the norm theory from foreign legal systems

The conventional understanding of norms should have been countered by the more recent legal theory reception from Japan and Germany. However, it has not yet happened because norm theory has so far only been a marginal figure in the exchange of legal theory and a large number of misunderstandings already arise in this limited and selective science transfer.

III. Future prospects for the development of norm theory in China

Without reservation, norm theory can be fruitful for the discussion of criminal law dogmatics in China. In addition to the dispute regarding the doctrine of wrongdoing (Unrechtslehre), norm theory can be helpful in solving a number of other dogmatic issues, such as the quantitative elements in most Chinese criminal offences. In any case, it is particularly useful if a clear line of development and the different positions of the norm theory – or more precisely, the norm theories – can be clarified in advance. In this regard, the working group can provide relevant premises for the development of Chinese criminal law research.

01.12.2020

PD Dr. David Kuch

Legal system – taxonomy of norms – reasons for action

The lecture explores norm-theoretical aspects in the legal thought of Joseph Raz (*1939). The focus is on the early work published between 1970 and 1985, which embeds an institutionalist theory of law (I.) in an overarching practical-philosophical context (II.). At both of these stages of his thoughts, there are touchpoints for questions of norm theory in the narrower sense.

I. Foreground of Legal Theory: Institutionalist Positivism

Raz‘s early work is strongly influenced by H.L.A. Hart‘s classic “The Concept of Law” (1961) and traces the "double institutionalization" (Paul Bohannan) of law. Its norm-theoretical equivalent is the distinction between primary and secondary rules. Crosswise to this classification are further categories of order for norms, in particular the distinction between mandatory and enabling rules or set norms and rules of practice.

II. (Legal) Philosophical Background: Theory of Reasons for Action

“Practical Reason and Norms” (1975) constitutes the Oxford philosopher’s main work on legal theory. It aims at the formulation of a theory of normativity appropriate to law, with the concept of the reason for action as its center of gravity. The most important norm-theoretical innovation consists in the interpretation of norms as "exclusionary reasons". In addition, Raz sketches a theory of norm-descriptive propositions (detached statements) that follows Hans Kelsen. Both topics have so far received little attention in Germany (but see Kuch, Die Autorität des Rechts, 2016).

III. Between Realism and Skepticism

The overall approach seems to be characterized by a peculiar coexistence of realism and skepticism. Here, perhaps, an intellectual elective affinity between Joseph Raz and Ludwig Wittgenstein emerges, who (along with Max Weber) may be counted among the most important background figures of analytic legal theory.