Research Program Department of Criminal Law
Research in the Department of Criminal Law follows the general guiding principle of the Max Planck Society: we conduct basic research (Grundlagenforschung). This approach does not take the perspective of lawyers and judges, who are concerned with the application of positive (national or international) law, or of academics who work on doctrinal systems that are necessary for solving cases within a particular legal system. Rather, basic research in law adopts the more distant perspective of scholars who observe and evaluate rules and principles in substantive criminal law, procedural law, and practice. The purpose is to critically examine these rules and principles and to find convincing solutions beyond the confines of positive law. A critical, detached perspective enables us to pay attention to foundational assumptions that underlie statutes, criminal law doctrine, and criminal justice decisions. Practitioners are often only vaguely (if at all) aware of the deep layers of criminal law. Basic research strives to recognize these layers with greater clarity and to evaluate their soundness and appropriateness. The underlying assumptions can be factual (typically about the results that criminal prohibitions and criminal justice practices can achieve) or normative (for instance, evaluations of the wrongfulness and blameworthiness of human behavior).
Criminal law theory examines foundational issues and normative questions that arise in different jurisdictions. Transnational criminal law theory connects scholars from different countries who are interested in basic research rather than the applied-research logic of national (or international) criminal law doctrine.
Basic research in criminal law depends on methods and knowledge from fields of expertise beyond the legal arena. It necessarily involves interdisciplinary elements. Factual premises that underlie doctrines and rules, such as claims about the effects of law on human behavior, must be examined with the methods of empirical disciplines such as sociology and psychology. While the Department of Criminal Law does not conduct empirical research, we are interested in the results of such research. Another crucial element is the analysis of normative premises and normative arguments. Thus, criminal law theorists must stay abreast of the analytical approach and the state of discussion in several branches of philosophy, such as epistemology, political philosophy, and moral philosophy.
Comparative elements figure as a starting point for examining the merits and shortcomings of competing models and legal solutions. A problem-centered approach to comparative law does not require comprehensive country reports, but it presupposes some prior knowledge of interesting contrasts between legal systems.
In the German tradition, as in other countries, most of the basic research in criminal law traces historical developments and the roots of normative criminal law judgments in the history of ideas, particularly the philosophy of the Enlightenment. In the Department of Criminal Law, the focus is on more recent developments and on the challenges that contemporary societies face. Current normative judgments in the criminal law context reflect shifts in fundamental assumptions that occurred in the second half of the 20th century as the notion of human rights became central to normative thinking. One example of such a shift is the change in the role of autonomy rights and the concomitant changes in the structure and scope of sexual offences.
Another important challenge that will be addressed in our research is the increasing social and cultural fragmentation of contemporary societies. The existence of these phenomena invites the question of whether and how they do and should impact the criminal law. The approach taken is partly descriptive and partly normative: the former entails surveying changes in criminal norms and criminal justice practices that can be traced to increasing fragmentation in European countries; the latter entails addressing the research questions of whether and how, under contemporary conditions, conduct should be regulated with criminal prohibitions, how wrongdoing and culpability should be assessed, and what sanctions are appropriate.