The concept of crime in criminal law

• Applicant: Professorin Dr. Frauke Meta Rostalski
• Subject Area: Criminal Law
• Term: from 2013 to 2019
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 251703360

The proposal intends to draft a normative notion of crime that creates a unit between the different phases of necessary criminal evaluation of a certain behavior. This encompasses both the justification of punishment, its consequences for several legal figures of substantive criminal law (f. ex. criminal attempt), sentencing and the criminal process. The same notion of crime applies for each phase of legitimate punishment. Firstly, it is important to establish a theoretical foundation that is the starting point of a normative notion of crime and its elements. This theory abandons preventive models of punishment which only endanger the constitutionally important separation of criminal law and police law. Furthermore, especially theories of general prevention disregard personal dignity. Against this backdrop, the proposal opts for a repressive criminal theory which safeguards the liberal ideal of a rational and equal citizen. Traditional conceptions of crime usually intermingle final and teleological aspects. In contrast to these, the proposed normative notion of crime avoids inner flaws, but consequently implements the necessary entity of criminal theoretical foundation and notion of crime: The committed crime is the reference object of state's reaction to wrongful behavior. Thus, it is reflexive with respect to its reasons of justification and by this unifies 'material and form'. The proposal encompasses all the legal spheres, in which the notion of crime can unfold its relevance. For this reason it can give answers to still open questions in the field of substantive criminal law and sentencing. For example, the research projects highlights the advantages of a system of sentencing proportional to the individual crime. Additionally, one special focus of the proposal is directed to a new definition of crime in criminal process. The traditional naturalistic model of crime earns a lot of criticism from scientific literature. However, there has not been any adequate alternative yet. In contrast to this, the proposal drafts a normative notion of crime, which is unrestrictedly preferable not only because of its clearness. Above all, the concept reveals that it is a common mistake to suppose that there is an opposition between legal certainty and justice. As long as the notion of crime is defined in a normative way there is no such conflict.

• DFG Programme: Research Grants