Günther Jakobs

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Günther Jakobs (* 26. July 1937 in Mönchengladbach ) is a German jurist , philosopher , and Emeritus Professor of Criminal Law , Criminal Procedure Law and Philosophy of Law . In specialist circles, Günther Jakobs is considered to be a representative of a functionalist approach, who opposes a naturalistic understanding of basic criminal law terms and effects and understands them as social processes. In particular, he advocates a theory of positive general prevention, in which the punishment is primarily intended to confirm the validity of the norm - questioned by the act. He became known to a broader academic public primarily through his analysis of the controversial enemy criminal law .


After studying law in Cologne, Kiel and Bonn, Günther Jakobs received his doctorate in 1967 at the University of Bonn with a dissertation on competitive criminal law. In 1971 he completed his habilitation, also in Bonn, with Hans Welzel with a thesis on the negligent successful crime and was appointed to his first professorship at the University of Kiel the following year . In 1976 he followed a call to the young University of Regensburg , whose law faculty he helped to establish a solid academic reputation over the next decade together with colleagues such as Peter Landau , Dieter Schwab and Udo Steiner . In 1986 he returned to the University of Bonn, where he taught as director of the legal philosophy seminar and co-director of the Institute for Criminal Law until his retirement in summer 2002.

Günther Jakobs is a member of the Bavarian and North Rhine-Westphalian Academy of Sciences as well as co-editor of the journal for the entire criminal law science (ZStW).


Günther Jakobs' scientific work focuses on the fundamentals of criminal law, especially the purposes of punishment, the doctrine of attribution and the concept of guilt. He dealt more closely with individual criminal offenses from the special section of the German Criminal Code (StGB), insofar as they appeared to him dogmatically unclear or interpreted inconsistently by case law, such as coercion (§ 240 StGB) and forgery (§ 267 StGB) .

In his textbook on the general part of the German Criminal Code, in monographs and numerous essays, Jakobs developed elements of a criminal law theory that can be described as functionalism. It is based on the assumption that criminal guilt cannot be justified ontologically or can be derived solely from a fictitious social contract, but a question of social necessity with the aim of protecting the law as a binding model of orientation. While GWF Hegel understood punishment as the “negation of the negation” of law with the aim of restoring it, Jakobs' model, which at first glance looks similar, also reveals the social conditionality of law itself (as “settling the conflict through imputation”). However, similar to Hans Kelsen'sPure Legal Doctrine ”, this raises the question of what minimum ethical requirements the law must meet in order to be able to claim validity.

According to Jakobs, an act relevant to criminal law is an objectified non-recognition of the validity of the norm. The question of the offender's free will is posed incorrectly, because: “Criminal law does not know the category to which the problem of free will belongs.” Instead, Jakobs suggests that the guilty accusation should be derived from the offender's “responsibility” for his behavior contrary to the norm; For this it should be sufficient that there was no legally accepted reason that prevented the perpetrator from deciding to act in accordance with the norm.

Günther Jakobs sparked a fierce controversy far beyond the legal profession with his distinction between “civil criminal law” and “enemy criminal law”, first formulated in 1985 and then further elaborated in 1999. Jakobs states that the current criminal law treats enemies of the law differently than its basically law-abiding citizens , for example in the form of preventive detention (Section 61 No. 3 and Section 66 StGB) and the criminal liability of mere membership in a terrorist organization (Section 129a StGB) : “Civil criminal law receives the norm, enemy criminal law (...) combats dangers.” Jakobs agrees, because: “Those who deviate in principle do not guarantee personal behavior; therefore he cannot be treated as a citizen, but must be warred as an enemy. ”After this argumentation had initially received little attention, at least no loud contradiction, a debate developed after the terrorist attacks of September 11, 2001 about the preservation of the rule of law in the fight against terrorism. Jakobs' position has now been rejected in numerous contributions as essentially totalitarian, since it amounts to “replacing law with war”. The definition of who is to be regarded as an enemy opens the door to an arbitrary state like that of the Third Reich. Jakobs has objected to this, among other things, as an enemy he does not understand the different (hostis) like the state theorist Carl Schmitt , but the dangerous criminal (inimicus). Still, Jakobs found only a few, undivided approval.

In response to the question about the permissible means of constitutional self-defense, which was clearly answered by Günther Jakobs, the later President of the Federal Constitutional Court, Ernst Benda , stated in 1966: “Provision must be made against an emergency; But this must not happen in such a way that the free democratic basic order, which all defense measures are supposed to protect, is lost. Otherwise the constitutional state (...) could perhaps be successfully defended externally, but at the same time would be fatally hit internally and would have to perish (...). ”The discussion about Günther Jakobs' theses is not over. To declare the debate absolutely inadmissible would not be convincing because Jakobs, as his opponents also admit, describes something that has long existed, the ethical justification of which is by no means clear.

As a criminal law dogmatist and philosopher, Günther Jakobs also influenced the scientific discussion in Spain and Latin America. Almost all of his books and many essays are available in Spanish translations. The legal philosophical study "Norm, Person, Gesellschaft" was first published in Spanish and only then in German. Jakobs' description of enemy criminal law has met with interest, but also criticism, especially in Colombia , which has long been in a state similar to civil war.


Günther Jakobs' international work has found recognition in various guest professorships. On the occasion of his 65th birthday in 2002, the Universidad Externado de Colombia in Bogotá organized a symposium, whose contributions were published in the following year as a commemorative publication under the title “El funcionalismo en derecho penal - Libro Homenaje al Profesor Günther Jakobs”, and signed him the title "Profesor Honorario". The same title was awarded to him in 2002 by the Universidad Inca Garcilaso de la Vega in Lima and the Universidad Nacional de San Antonio Abad del Cusco (both in Peru). In 2005 he received an honorary doctorate from the Universidad de la Barra Nacional de Abogados, México DF. On his 70th birthday in 2007, a commemorative publication was published by 43 authors.

See also

Fonts (selection)

German speaking

  • The competition between homicides and bodily harm (dissertation), Bonn 1967
  • Studies on negligent successful crime (habilitation thesis), Bonn 1971, Berlin / New York 1972 book edition, ISBN 3-11-003889-7
  • Guilt and Prevention , Tübingen 1976, ISBN 3-16-638121-X
  • (as editor :) Legal validity and consensus , Berlin 1976, ISBN 3-428-03624-7
  • Criminal law, general part - The basics and the theory of attribution (textbook), Berlin / New York 1983, 2nd edition 1991 ISBN 3-11-011214-0 , study edition 1993, ISBN 3-11-014193-0
  • The concept of criminal action , Munich 1992, ISBN 3-406-37131-0
  • The principle of guilt , Opladen 1993, ISBN 3-531-07319-2
  • Written law and real law in abortion , Bochum 1994, ISBN 3-927855-68-5
  • The criminal attribution of actions and omissions , Paderborn 1996 ISBN 3-506-70016-2 ; that., Opladen 1996, ISBN 3-531-07344-3
  • Norm, Person, Society - preliminary considerations for a legal philosophy , Berlin 1997, 2nd edition 1999 ISBN 3-428-09067-5
  • Killing on Demand, Euthanasia and the Criminal Justice System , Munich 1998, ISBN 3-7696-1599-9
  • Forgery of documents - revision of a fraudulent offense , Cologne / Berlin / Bonn / Munich 2000 ISBN 3-452-24384-2
  • State punishment - meaning and purpose , Paderborn / Munich / Vienna / Zurich 2004 ISBN 3-506-71328-0

foreign language

Books about Günther Jakobs

  • E. Penaranda Ramos / C. Suárez González / M. Cancio Meliá: Un nuevo sistema del derecho penal: consideraciones sobre la teoría de la imputación de Günther Jakobs , Bogotá 1999 ISBN 958-616-388-1
  • E. Montealegre Lynett / JF Perdomo Torres: Funcionalismo y normativismo penal. Una introducción a la obra de Günther Jakobs , Bogotá 2006 ISBN 958-710-091-3

Web links

Individual evidence

  1. Jakobs, Coercion by Threat as a Freedom Offense, in: Festschrift für Peters, 1974, p. 69.
  2. Jakobs, forgery of documents - revision of a fraudulent crime, 2000.
  3. 2nd edition 1991, study edition 1993 (see the heading "Works").
  4. See on this characterization E. Montealegre Lynett / JF Perdomo Torres: Funcionalismo y normativismo penal. Una introducción a la obra de Günther Jakobs, Bogotá 2006
  5. Jakobs, Criminal Guilt Without Free Will? In: Aspects of Freedom, Regensburg 1982, pp. 74 ff., 81.
  6. ^ "Basic lines of a philosophy of law", addition to § 97.
  7. Jakobs, Criminal Guilt Without Free Will? In: Aspects of Freedom, Regensburg 1982, p. 73, with reference to Niklas Luhmann .
  8. Jakobs himself mentions (in: HRRS - Online Journal for Higher Justice Jurisprudence in Criminal Law, Edition 8–9 / 2006, p. 291) that Kelsen's legal positivism at least presupposes a “by and large effective constitution”; see. on this: "Reine Rechtslehre", 2nd ed. 1960, p. 204.
  9. Jakobs, Der strafrechtliche Handlungsbegriff, Munich 1992, p. 32 ff.
  10. Jakobs, Criminal Guilt Without Free Will? In: Aspects of Freedom, Regensburg 1982, p. 80.
  11. Jakobs, Criminal Guilt Without Free Will? In: Aspects of Freedom, Regensburg 1982, p. 81.
  12. Jakobs, Criminalization in advance of a violation of legal interests, in: Journal for the entire criminal law science (ZStW) 97 (1985), pp. 751–785.
  13. As part of a conference at the Academy of Sciences Berlin-Brandenburg; documented in: Eser / Hassemer (ed.), The German criminal law science before the turn of the millennium, 2000, p. 47ff.
  14. ↑ In detail: Jakobs, Bürgerstrafrecht und Feindstrafrecht, in: HRRS Edition 3/2004, pp. 88–95; most recently, on the theory of Feindstrafrechts, in: Rosenau / Kim (eds.), Criminal theory and criminal justice, Frankfurt 2010, pp. 167–182.
  15. a b Jakobs, Bürgerstrafrecht und Feindstrafrecht, in: HRRS Edition 3/2004, p. 90.
  16. Düx, Global Security Laws and Worldwide Erosion of Basic Rights, in: Zeitschrift für Rechtssppolitik (ZRP) 2003, p. 194 f .; Prantl, Diabolic Potency, in: Süddeutsche Zeitung from 5./6. March 2005.
  17. ^ Instead of many: Düx, Global Security Laws and Worldwide Erosion of Fundamental Rights, in: Zeitschrift für Rechtssppolitik (ZRP) 2003, pp. 189, 194 f .; Prantl, Diabolic Potency, in: Süddeutsche Zeitung from 5./6. March 2005; Roxin, Criminal Law General Part, Vol. 1, 4th ed. 2006, Rn. 2/126 ff .; Sauer, The criminal law and the enemies of the open society, in: Neue Juristische Wochenschrift (NJW) 2005, p. 1703 ff.
  18. ^ A b Sauer, The criminal law and the enemies of the open society, in: Neue Juristische Wochenschrift (NJW) 2005, p. 1704.
  19. Jacob, Enemy Criminal Law? - An investigation into the conditions of legality, in: HRRS edition 8–9 / 2006, p. 294.
  20. So in Roellecke , JZ 2006, 265 ff., 268: "In relation to the terrorists, the rule of law is left with the silent use of physical violence."
  21. Benda, Die Emergency Constitution, 1966, p. 11.
  22. So probably the tendency of Prantl, Diabolische Potenz, in: Süddeutsche Zeitung from 5./6. March 2005.
  23. ↑ In detail: Aponte, War and Feindstrafrecht. Reflections on efficient enemy criminal law based on the situation in Colombia, Baden-Baden 2004; ders., War and Politics - Political Enemy Criminal Law in Everyday Life, in: HRRS Edition 8–9 / 2006, pp. 297–303.
This version was added to the list of articles worth reading on June 13, 2007 .