Punitive purpose theory
The theories of the purpose of punishment deal with the legitimation and the meaning and purpose of (state) punishment . There are two types of penalty theories: absolute and relative theories. In German criminal law, both theories of the purpose of punishment are taken into account under the name of “union theory”.
German criminal theories and their subject
The term “criminal theory” is common. One also speaks of the “sense and purpose” of punishing. “Punitive theories”, on the other hand, are not just a sub-form of “criminal theories”, this word is rarely used alone, but it corresponds to the view of many specialists who primarily focus on the purpose of prevention. The following criminal theories and also their criticism show the prevailing state of the discussion in Germany.
The so-called unification theory is predominantly represented in jurisprudence and teaching. She tries to unite three different approaches, the so-called “absolute”, because purposeless (philosophical-idealistic) criminal theory of justice and the two “relative”, because purposeful criminal theories, the general preventive (social) view and the individual preventive (empirical) teaching.
Punishment means in particular the infliction of a real evil in the sense of a legal disadvantage according to Art. 5 EGStGB. Evil generally stands for everything that people usually do not want it to be done to them: pain, suffering, but also restrictions on freedom, disadvantage and deprivation of advantages.
The public guilty verdict , which contains a moral stain, plays a special role . In particular, it serves the general preventive task of confirming the validity of the original normative order questioned by the perpetrator in a communicative way. In this respect, one speaks of the expressive-normative character of punishment, meant as a contradiction against being allowed to act.
The presumption of innocence in Art 6 II ECHR , which applies until the judgment becomes final, seeks to compensate for the stigmatizing effect of the criminal process on the factual level, which is associated with the role of the accused and which affects the accused in particular when the public indictment is read out.
The purely preventive oriented measures of correction and prevention, including preventive detention , are not the subject of the German penal theories in general. Special features also apply to juvenile criminal law with its educational requirements.
In any case, the “crime theories” of criminology , which are primarily sociologically and psychologically oriented, must be separated from the criminal theories of criminal law . Other legal cultures that do not make these subtle distinctions therefore start from a more general term of punishment and then interpret punishment with far less reference to the idealistic idea of the criminal offense.
The main subject of German criminal theories is the imprisonment , which the legislature of the German penal code threatens always and in the first place.
The absolute criminal theory of justice
Absolute criminal theories serve to settle guilt and restore justice. The absolute theories are detached from the social effects of punishment (Latin: absolutus = detached). They derive their legitimation solely from a metaphysical principle of justice and are divided into retribution and atonement theory.
The retribution theory
This theory seeks to outweigh the injustice created by the perpetrator's act with punishment in order to restore the violated legal order in this way. It serves to settle guilt and in this way restores justice. Well-known representatives of this theory are Immanuel Kant and Georg Wilhelm Friedrich Hegel , whereby Kant represented the Talion principle, according to which the punishment must correspond to the deed (an eye for an eye), while Hegel only demands equality of value between punishment and deed and a restoration of law through a " Negation of negation ”.
The Atonement Theory
It focuses on perpetrator psychology, which is supposed to be reconciled with the legal order through penance. However, since atonement presupposes voluntariness, it is questionable to what extent a state-imposed penalty can evoke such a voluntary act.
The theory of debt settlement
It modernizes the theory of atonement and combines the personal guilt principle with the "absolute" idea of just compensation. In many cases, however, it does not appear in the list of absolute criminal theories.
Advantages and disadvantages
The advantage of the absolute theory of punishment is that the amount of the penalty depends on the act committed, freely based on the principle of “an eye for an eye” (“Talion principle”). This can prevent arbitrary judicial decisions, such as the setting of an example, and thus also preserves freedom. When settling offenses, the extent of personal guilt can now also be taken into account.
The application of absolute penal theory means the attempt to realize a postulated metaphysical justice, the concept of which can be questioned. This concept is contradicted by the fact that many of today's states derive the legitimation of their violence from the citizens and not from God. The absolute criminal theory has effects that do not correspond to the interests of the individual:
- The absolute theory of punishment demands a punishment even if it is not socially necessary. Kant , for example, took the view that - even if the state and society were dissolved - “the last murderer in prison would have to be executed beforehand, so that what happens to everyone what his deeds are worth, and blood guilt does not end be liable to the people who did not insist on this punishment ”.
- Pursuing the theory of retribution can in practice lead to socially undesirable consequences, such as socialization damage, which is often the cause of crimes. Society might not be more protected from crime, but might even be less protected.
- The guilt principle is based on the assumption of the previously unproven human freedom of will and is based on the assertion that the perpetrator could have acted differently in terms of will, heaviest sanctions. Also, the principle of personal responsibility does not result in the state coercive penalty, but the voluntary acceptance of a fine.
- Whether it is a repeat offense has no influence on the sentence, as each offense is rewarded individually and according to the talion principle.
- Some acts cannot be retaliated (e.g. arson or mass murder).
Relative criminal theories
The relative crime theory (Latin: relatus = related to), on the other hand, is preventive and serves to prevent future criminal offenses. It is divided into general prevention and special prevention (also: individual prevention).
General prevention aims to protect the general public. It is further divided into positive and negative general prevention:
- positive : The positive general prevention is intended to strengthen society's trust in the legal system. Three different, mutually overlapping goals and effects can be worked out: practicing compliance with the law as a learning effect; the confidence effect that results when the citizen sees that the law prevails; and the satisfaction effect that arises when the general sense of justice calms down on the basis of the sanction and sees the conflict with the perpetrator as settled.
negative : The negative general prevention is intended to deter society from committing an act by raising awareness of the punishments that can follow ( Anselm von Feuerbach ).
- Criticism: The focus on general preventive purposes has the advantage that other people can indeed be deterred from committing injustices, but it must not be overlooked that many crimes, despite the threat of punishment known to the perpetrator, are made spontaneously and without a reasonable one Weighing up the consequences. Even the highest threats of punishment do not mean that no more criminal offenses will be committed in the future. In addition, it must be taken into account that the guilt principle, which is sometimes understood as an expression of human dignity , forbids punishing a perpetrator with inappropriately guilty punishments in order to create a deterrent effect on the population.
The special prevention aims at the actual danger of the perpetrator himself and thus pursues an empirical-criminological view. It is also divided into positive and negative special prevention ( Franz von Liszt ):
positive: The positive special prevention should lead to the improvement of the perpetrator and his rehabilitation . Positive sanctions are e.g. B. Praise , reward , distinction .
- Criticism: What about completely resocialized offenders and offenders who cannot be resocialized?
negative: The negative special prevention would like to protect the general public from the perpetrator and punish the perpetrator from committing another act. Negative sanctions can e.g. B. be: censure , complaint , compensation for pain and suffering , preventive detention .
- Criticism: If there is no limit to the sentence, it is questionable to what extent the state may detain a perpetrator beyond the sentence he has served (preventive detention).
Most of the authors of the legal textbooks follow the Federal Constitutional Court (BVerfGE, 45, 187, 253 ff.) And with it the threefold theory of unification.
Roxin offers an influential variant of the unification theory with his predominantly preventive unification theory. He tries to resolve the widely accepted antinomy that the three punitive purposes occasionally lead to conflicting claims. For example, the “Auschwitz murderers” have been fully rehabilitated. The objection is occasionally based on this that a unification theory is therefore not tenable. Roxin therefore separates according to law, judgment and enforcement.
These are justified by their respective preventive effects:
- the threat of punishment of the law due to its negative general preventive effect (deterrence)
- the punishment in the judgment by:
- their positive general preventive (all 3 aspects, especially the satisfaction function),
- their negative general preventive (substantiation of the threat of punishment), as well as
- your positive special preventive (penalty is based, if possible, on re-socialization aspects)
- and the execution of sentences through the special preventive effect (rehabilitation)
In the case law , the application of Criminal Code shows that these theories are united, namely as a predominantly retaliatory theory of association: For example, Section 46 I, Sentence 1 of the Criminal Code establishes the theory of retribution as the basis of punishment. According to this, a differentiation must be made: The guilt forms “the basis for the assessment of the penalty”. According to this, the idea of guilt has priority, at least for the sentencing. According to sentence 2 of the same paragraph, the aspect of positive special prevention must also be taken into account. I of the Criminal Code also focuses on general preventive effects in the exceptional case of short imprisonment. The derivation of the principle of retaliation from Section 46 I Sentence 1 StGB is again critically questioned by Roxin. He only wants to use guilt to determine the upper limit.
Due to the disadvantages mentioned above, absolute penal theories are today rejected by considerable parts of the teaching and only residual elements such as the concept of guilt are used. The different doctrines, which often also use the idea of "integration prevention", at least push back the aspect of criminal justice and see criminal law primarily as a social task. However, the guilt principle has constitutional status ( nulla poena sine culpa ). That is why at least those criminal theories that not only extend the principle of guilt widely, for example with the aid of a “social” concept of guilt, but also expressly replace guilt with social imputation, depart from applicable law. They then offer independent “punitive philosophies”.
On the other hand, Kurt Seelmann , Michael Köhler , Felix Herzog , Ernst Amadeus Wolff , Rainer Zaczyk and Günther Jakobs are based on Hegel's legal philosophy and his basic idea of mutual recognition . For example, Köhler explains that with Hegel the perpetrator must be subsumed under his own right. Only in this way is punishment based on the recognition of the perpetrator as a legal subject. It often remains unanswered whether the perpetrator still retains human dignity and thus only the personal right to freedom is deprived of him with the imprisonment and also whether this right is not even for the murderer, for whom the death penalty would then actually have to be demanded, out of humane conditions Reasons can and must be awarded again. Otherwise these perspectives would also represent “penal philosophies” that are unconstitutional and unrelated to human rights.
Günther Jakobs also developed the much-discussed concept of enemy criminal law .
View of the German Federal Constitutional Court
The so-called unification theory, including the criticism of its elements, took up the Federal Constitutional Court in 1977 as a decisive social consensus and was based on the German criminal law studies of the time. In its key decision, which he himself repeatedly cites, the Federal Constitutional Court emphasizes (45, 187 ff., Margin number 210) initially in short form: "Compensation for guilt, prevention, rehabilitation of the perpetrator, atonement and retribution for injustice committed are described as aspects of an appropriate penal sanction" .
Then it adds with a view to the (then to be defused) life imprisonment (margin numbers 212 ff.):
"If the primary goal of punishment is to protect society from socially harmful behavior and to protect the elementary values of community life ('general general prevention'), the overall consideration required here must first of all of the value of the violated legal interest and the degree of social damage the act of violation - also in comparison with other criminal offenses - can be assumed. The life of every single person is one of the highest legal interests. The duty of the state to protect it results directly from Art. 2 II 1 GG. It also follows from the express provision of Art. 1 I 2 GG. ...
The negative aspects can conventionally be described as deterring others who are in danger of committing similar crimes ('special general prevention') ... The general empirical studies on the problem of deterrence are also ... with reservations with regard to their methodological reliability, generalizability and thus informative value to provide.
... The positive aspect of general prevention is generally seen in the maintenance and strengthening of trust in the validity and enforceability of the legal system ... One of the tasks of punishment is to enforce the law against the injustice committed by the perpetrator, in order to ensure the inviolability of the legal system to the legal community and thus to strengthen the legal compliance of the population. Admittedly, there are no well-founded efficiency studies on this either. In the case of the most serious homicidal crime, it is probable that the crime-reducing effects of a certain threat of punishment or criminal practice cannot be measurably proven at all. On the other hand, there are sufficiently certain indications that the threat and imposition of life imprisonment are important for the status that general legal consciousness attaches to human life.
... In the amount of the threatened punishment, the legislature expresses its judgment of unworthiness about the offense threatened with punishment. Through this judgment of unworthiness, he contributes significantly to the awareness of the population. Precisely such a severe punishment as life imprisonment is particularly suitable for consolidating the awareness of the population that human life is a particularly valuable and irreplaceable legal asset that deserves special protection and general respect and recognition. The formation of this consciousness increases the general inhibition of endangering human life, in particular of deliberately destroying it.
... However, according to the current state of criminological research, it is an open question whether a 30-year or 25-year or even only 20-year prison sentence could achieve a sufficient general preventive effect. In this situation, the legislature keeps within the scope of its creative freedom if it not only restricts itself to the negative aspects of general prevention ... but also attaches importance to the general legal awareness of the effects of life imprisonment, which are not based on the threat of early imprisonment would.
... The punitive purpose of negative special prevention by securing against the individual perpetrator can be fully achieved by keeping them in custody for life. But whether the life-long execution of the prison sentence is also necessary for security reasons depends on the risk of relapse. ...
... The imposition of life imprisonment does not contradict the constitutionally founded idea of rehabilitation (positive special prevention), taking into account the previous practice of grace and the necessary legalization of the suspension procedure. The murderer who has been sentenced to life imprisonment basically has the chance to regain freedom after serving a certain term. For him, too, the rehabilitation goal enshrined in the Prison Act has a positive effect. This ensures that he will still be able to live and be reintegrated in the event of a later release. Only in the case of offenders who remain dangerous for the general public cannot the rehabilitation goal of the prison system come into play. However, this is not based on the sentencing to life imprisonment, but on the special personal circumstances of the convicted person concerned, which rule out promising rehabilitation in the long term.
Finally, as far as the punitive purposes of compensation and atonement are concerned, it corresponds to the existing system of penal sanctions that murder is punishable by an exceptionally high penalty because of its extreme injustice and guilt. This punishment is also consistent with the general expectation of justice. Logically, the legislature has threatened the highest punishment available to him for the destruction of human life in the particularly reprehensible form of murder.
... The atonement function of punishment is lively controversial at a time when the idea of 'defense sociale' is increasingly being put to the fore. If the legislature continues to regard the atonement as a legitimate punitive purpose, it can be guided by the fact that the criminal has incurred the most serious guilt by destroying a human life through murder and that his reintegration into the legal community requires a processing of the debt, which also includes a very long imprisonment is made possible with the chance of early release. "
Crime and Punishment
In the Lisbon judgment, the Federal Constitutional Court (BVerfGE 123, 267 paragraph no. 350) also declares:
“In the field of the administration of criminal justice, Article 1, Paragraph 1 of the Basic Law determines the understanding of the nature of punishment and the relationship between guilt and atonement (cf. BVerfGE 95, 96, 140). The principle that every punishment presupposes guilt has its basis in the guarantee of human dignity in Article 1, Paragraph 1 of the Basic Law (cf. BVerfGE 57, 250, 275; 80, 367, 378; 90, 145, 173). The principle of guilt belongs to the constitutional identity, which is unavailable due to Article 79.3 of the Basic Law, and which is also protected from interference by supranational public authority. "
However, it should be noted that the tight penalty understanding not the special right of - purely preventive - "measures of correction and assurance" with detected, to which the aligned only to the continuing danger Sicherungsverwahrung belongs, although the Criminal even these so called "second track “Which regulates sanctions (§§ 61 ff StGB).
EU Europe and the German special route
The Federal Constitutional Court (BVerfGE 123, 267 = NJW 2009, 2267 ff., 2274 Paragraph No. 253 and 2287 Paragraph No. 355 ff) refers in the Lisbon judgment for the administration of criminal justice and for the fundamental importance of the principle of atonement and guilt Subsidiarity clause (of Art. 5 Paragraph 2 TEC; Art. 5 Paragraph 1 Clause 2 and Paragraph 3 of the Treaty on European Union as amended by the Treaty of Lisbon TEU-Lisbon) and declared (in Paragraph 253) “The administration of criminal justice, both in terms of the prerequisites for criminal liability and in terms of the notions of a fair, appropriate criminal procedure, is dependent on cultural, historically evolved, linguistically shaped prior understandings and on the alternatives that emerge in the deliberative process, which the respective public opinion move (...). The similarities in this regard, but also the differences between the European nations, are evidenced by the relevant case law of the European Court of Human Rights on guarantees in criminal proceedings (...). The penalization of social behavior can only be derived normatively to a limited extent from values and moral premises shared across Europe. The decision on behavior worthy of criminal offense, on the status of legal interests and the meaning and extent of the threat of punishment is rather largely a matter for the democratic decision-making process (see BVerfGE 120, 224, 241 f.). A transfer of sovereign rights beyond intergovernmental cooperation may lead to harmonization in this area, which is important for fundamental rights, only for certain cross-border issues under restrictive conditions; In principle, the Member States must be given substantial freedom of action. "
These two Latin countries emphasize their political raison d'etat and rely on the idea of social defense - "Social Defense" ( Marc Ancel , see also. Michel Foucault ) or "difesa sociale" (Grammatica) - and place less emphasis on the principle of guilt.
The US philosopher Joel Feinberg developed a liberalist approach in line with his prevailing legal culture. The equally influential legal philosophers John Rawls and HLA Hart are classified as liberalists with their reasons for “punishment”.
- Tatjana Hörnle , Criminal Theories , Mohr-Siebeck, 2nd edition, Tübingen 2017, ISBN 978-3-16-155578-7
- Hans-Heinrich Jescheck / Thomas Weigend , Textbook of Criminal Law General Part , 5th edition 1996
- Claus Roxin : Criminal Law General Part. Volume 1 . 4th edition, Munich 2006
- Karl Lackner / Kristian Kühl , Criminal Code , 27th edition 2011
- Johannes Wessels / Werner Beulke, Criminal Law General Part , 42nd edition 2012
- Urs Kindhäuser, Criminal Law, General Part , 6th edition 2013
- Rudolf Rengier, Criminal Law, General Part , 4th Edition 2012, § 3 II
- Norbert Kühne ; M. Gewicke-Schopmann; H. Harder-Kühne: Psychology for technical schools and technical colleges . Bildungsverlag EINS , Troisdorf 2006. ISBN 3-427-04150-6 , 8th edition (on learning theory, p. 51f)
- Peter-Alexis Albrecht : Criminology . 2nd edition, Munich 2002
- Peter Zihlmann : Does punishment make sense ?. Zurich 2002, see www.peter.zihlmann.com
- Helmut Ortner: Freedom instead of punishment . Original edition, Frankfurt / Main 1981
- Rolf Schmidt: Criminal law general part. 9th edition 2010
- Axel Montenbruck : civil religion. A legal philosophy II. Basic elements: reconciliation and mediation, punishment and confession, justice and humanity from a legal perspective. 3rd considerably expanded edition. University library of the Free University of Berlin, 2011. (open access) .
- Bernd-Dieter Meier, Criminal Law Sanctions , 3rd edition 2009
- "The sense and purpose of punishing" by Heribert Ostendorf ( Federal Agency for Civic Education )
- Encyclopedia for the Philosophy of Law, IVR (Ed.) Article criminal theories edited by Tatjana Hörnle
- Bedau, Hugo Adam and Kelly, Erin, "Punishment", The Stanford Encyclopedia of Philosophy (Spring 2010 Edition), Edward N. Zalta (ed.), URL = < http://plato.stanford.edu/archives/spr2010/ entries / punishment / >
- Entry in Jurawiki
- J. Wilhelm: Basics of state punishment - the criminal theories (PDF file; 246 kB)
- Maximilian Gaßner and Jens M. Strömer, The secret disappearance of the appeal function of the criminal offense and the uncanny criminalization of the citizen 
- For discussion and the theory of unification see from the perspective of criminal law: Hans-Heinrich Jescheck / Thomas Weigend, Textbook of Criminal Law General Part , 5th edition 1996, § 8 V; Karl Lackner / Kristian Kühl, Criminal Code , 27th edition 2011; § 46 Paragraph 1 ff. From the perspective of (criminal) legal philosophy: Arthur Kaufmann, Rechtssphilosophie , 2nd edition, 1997, 161; Axel Montenbruck: civil religion. A legal philosophy II. Basic elements: reconciliation and mediation, punishment and confession, justice and humanity from a legal perspective. 3rd considerably expanded edition. University Library of the Free University of Berlin, 2011, Chapter 6 II (open access) . From the point of view of sanctions law: Bernd-Dieter Meier, Strafrechtliche Sanktionen , 3rd, updated edition. 2009. P. 18 ff. From the point of view of case law in criminal matters: BGH St 28, 318, 326. From the point of view of the Federal Constitutional Court, fundamentally: BVerfG 45, 187 ff., 253 ff.
- Klaus Rogall, Strafe als Mittel der Abschreckung , in: Brigitte Zöller (Ed.), Living with punishments? , 1997, 236 ff., 239
- On the meaning of pain: Heike Jung, What is punishment? An essay , 2002, 16 f., As well as Guido Britz, punishment and pain - an approximation in: Guido Britz / Heike Jung / Heinz Koriath / Egon Müller (eds.), Basic questions of state punishment . Festschrift for Heinz Müller-Dietz on his 70th birthday, 2001, 73 ff .; Werner Gephart, Punishment and Crime. The theory of Emile Durkheim , 1990, 122; Montenbruck, Axel, Criminal Law Philosophy (1995–2010): retaliation, punishment, scapegoat, human rights punishment, natural law. 2nd expanded edition, University Library of the Free University of Berlin, Berlin, 2010 ( online ), paragraph 306 ff.
- Nikolaos Androulakis, On the Primacy of Punishment . ZStW 108 (1996), 300 ff., 303, at the same time with an overview of the problems of the definition of the penalty depending on the purposes and reasons of the penalty.
- Generally in this sense: Jean-Claude Wolf, Prevention or Retaliation? Introduction to ethical criminal theories , 1992, 18 mwN
- Georg WF, Hegel, Georg WF, Grundlinien der Philosophie des Rechts or Naturrecht und Staatswissenschaft im Grundrisse , Hoffmeister, Johannes (ed.), 1995, §§ 99 ff. Emphasizing Hegel's view: Michael Köhler, Criminal Law, General Part , 1977, § 3 Rn 3 ff
- Quoted in: Heribert Ostendorf, From the sense and purpose of punishing . Website of the Federal Agency for Civic Education. Retrieved November 5, 2012
- Claus Roxin, Criminal Law General Part. Volume I , § 3 Rn. 9, see literature
- See inter alia: Johannes Wessels / Werner Beulke, Strafrecht Allgemeine Teil , 41st edition 2011, paragraph 12 a; Urs Kindhäuser, Criminal Law, General Part , 5th edition 2011, § 2 III (Paragraph 16: "Jurisprudence" and "large parts of the teaching" represent the theory of association); Rudolf Rengier, Criminal Law, General Part , 3rd Edition 2011, § 3 II
- Claus Roxin, Criminal Law General Part. Volume I , § 3 marginal number 8, see literature
- Overview in: Jens Christian Müller-Tuckfeld, Integration prevention, studies on a theory of the social function of criminal law , series: Frankfurter kriminalwissenschaftliche Studien, 1998, 403 pp.
- General preventive and instead of guilt relying on social imputation in the sense of a "responsibility": Günther Jakobs, criminal law, general part. The basics and the theory of attribution , 2nd edition 1991, 1/4 ff
- Michael Köhler , Criminal Law General Part , 1997, 37 f, 49, with reference to Georg Wilhelm Friedrich Hegel , Grundlinien der Philosophie des Rechts , 1821, § 199. In summary, Axel Montenbruck , Strafrechtsphilosophie (1995-2010): retaliation, punishment, scapegoat , Human rights punishment, natural law. 2nd expanded edition, University Library of the Free University of Berlin, Berlin, 2010 ( online ), paragraph 374 ff
- addition: Gerhard Seher, Liberalismus und Strafe. On the criminal law philosophy of Joel Feinberg , Munster contributions to jurisprudence, issue 135, Berlin 2000.