Concept and Significance of the Concrete Approach in Criminal Law
Die concrete approach is a central methodological principle in German criminal law. It describes the dogmatic approach of not relying on an abstract, general potential for endangerment, but instead focusing on the actual circumstances and the specific course of action in each individual case when assessing criminal allegations and elements of offenses. The concrete approach thus stands in contrast to the abstract approach, which refers solely to the general dangers of actions.
The application of this method particularly influences the assessment of causality, objective attribution, attempt liability, and offenses of negligence.
Areas of Application of the Concrete Approach
Causality and Objective Attribution
Within the framework of criminal law causality, various concepts of causality are distinguished. The concrete approach requires that only those chains of causation that have actually occurred in the specific sequence of events be considered. Hypothetical causality—i.e., the mere possibility that an action could abstractly have caused the result—is not sufficient under the concrete approach.
Also, the objective attribution requires that the specific danger prohibited by the norm has manifested itself in the offender’s conduct. In this respect, the concrete approach ensures a restrictive application and prevents a broadening of criminal liability to undesirable risks.
Beginning of the Attempt and Withdrawal
The distinction between preparatory act and the initiation of the attempt is determined by the concrete approach to the sequence of events. The decisive factor is whether the offender, according to his plan, has commenced with the immediate realization of the offense. The case law specifies whether, in view of the overall circumstances, the attempt of the act is imminent and no longer distant.
The concrete approach is also applied when assessing withdrawal from an attempt. The critical issue is whether, in the individual case, it was still possible from the offender’s perspective to prevent the result entirely.
Offense of Negligence
In the context of offenses of negligence the concrete approach plays a significant role in the attribution of the result. It is examined whether the very risk that was created by a breach of duty in the specific case has actually materialized. Particularly in cases involving atypical chains of causation, the concrete approach restricts attribution.
Distinction from the Abstract Approach
Die abstract approach differs from the concrete approach in that it only considers the general suitability of an action to bring about a specific result. It is mainly relevant in the context of offenses with qualifying circumstances and when assessing the element of ‘dangerousness.’
The concrete approach, on the other hand, requires a detailed examination of the actual causal sequence as it occurred and does not rely on theoretical considerations. This restricts criminal liability to those behaviors in which the risk prohibited by the norm has clearly come to fruition in the individual case.
Case Law and Examples for Clarification
The case law of the Federal Court of Justice (BGH) and the Higher Regional Courts has been significantly shaped by the application of the concrete approach. For example, it has been clarified that in the withdrawal from an attempt, the actual sequence of events in the individual case is decisive. In the assessment of offenses of negligence, a strict distinction is made based on the specific course of events: If the offender, by his conduct, created a risk that then actually resulted in damage, objective attribution is generally established.
Example (Negligence):
A person runs over a pedestrian at dusk due to insufficient lighting. The assessment of whether the risk created by the breach of duty (driving without lights) actually materialized is made according to the concrete approach: If the accident would have been unavoidable even with proper lighting, attribution is lacking.
Example (Beginning of Attempt):
In attempted theft, it is crucial whether, in the specific course of events, the offender has already advanced to the point of making direct contact with the stolen goods and the actual act of appropriation is imminent.
Critique and Dogmatic Classification
The concrete approach is predominantly regarded as a fundamental prerequisite for the legally secure and case-appropriate application of criminal law. It ensures that not every abstract risk creation leads to criminal liability, but only when the prohibited risk itself is realized.
Nonetheless, there are some critical voices indicating that the strictly individualized orientation can encourage inconsistent grounds for criminal liability, particularly in atypical cases.
Relevance in Other Areas of Law
While the concrete approach is particularly characteristic of criminal law, it also has effects in related legal fields, such as civil law (tort law) and administrative law (public safety measures). Even there, it ensures a focus on the individual case and prevents undue expansion of liability.
Summary
The concrete approach is a central structural element in German criminal law. It requires that the assessment of elements of an offense, attempt, and result attribution always be based on the individual and actual course of events. This ensures precise and just criminal application for each case. At the same time, it limits criminal liability to actual realizations of risks and dangers. The concrete approach is of significant practical importance and has a lasting impact on numerous core areas of criminal law.
Frequently Asked Questions
When is the concrete approach applied in criminal law?
The concrete approach is applied in criminal law particularly in the assessment of causality and the evaluation of objective attribution. It should always be used when determining whether a specific result (e.g., the victim’s death) was actually caused by a particular action of the perpetrator and whether the specific risk of the action is what manifested in the result. In case law, the concrete approach is especially relevant in the context of alternative and double causality scenarios, the issue of hypothetical causality (reserve causes), omission offenses, and the assessment of medical treatment courses. The actual course of events, as established in each individual case, must be analyzed and evaluated without giving priority to abstract considerations of probability.
What is the significance of the concrete approach for causality?
The concrete approach is of central importance when examining causality because it requires the assessment of causality to be based on the actual sequence of events that took place. This means that the judge focuses on the specific facts of the individual case and addresses the issue of causality solely in light of the established course of events. In particular, the so-called theory of equivalence principle (‘conditio sine qua non’ formula) is applied, which, however, is supplemented by the concrete approach in borderline cases (e.g., when multiple causes are present) to reach a fair outcome. A purely hypothetical, reality-defying assessment is excluded, so that hypothetical courses of events due to reserve causes are generally disregarded.
How does the concrete approach affect the evaluation of omission offenses?
In omission offenses, the concrete approach plays a decisive role in determining whether the failure to act in breach of duty was causative for the result. Since the question often arises as to whether the damage could have been prevented by timely intervention by the person under a duty to act, it must be assessed based on the actual events and the realistic possibility of preventing the result, whether timely and proper action would, with near certainty, have averted the result. The concrete approach thereby prevents merely abstract or speculative increases in probability from being sufficient to affirm attribution.
In which areas is the concrete approach often the focus of judicial decisions?
The concrete approach is an integral part of judicial decision-making in cases involving offenses of negligence, causality theory (especially double and superseding causality as well as hypothetical reserve causes), specific constellations in medical criminal law (e.g., death resulting from faulty treatment despite life-threatening pre-existing conditions), and generally in offenses where multiple causation chains or contributing factors are relevant. Particularly in cases of competing natural causation chains, it serves as a necessary precision tool for distinguishing between legally relevant and irrelevant causes in the individual case.
How does the concrete approach relate to objective attribution?
Objective attribution requires that, in the concrete result, the risk created by the criminal act is precisely what materialized. The concrete approach ensures that attribution of a result only occurs when the specific risk created by the offender’s conduct is actually realized in the outcome. Thus, the concrete approach is necessarily a supplementary tool for aligning attribution theory with the actual development of events and avoiding general, abstract risk assessments.
What are typical examples of the application of the concrete approach?
Typical examples are cases where multiple individuals independently contribute to a victim’s death (‘double causality’), cases involving reserve causes (e.g., a fatally injured victim later dies from another cause that occurs subsequently), or cases where an omission should only be criminally liable if specific rescue measures would have prevented the result. The concrete approach is also decisive in medical criminal law, such as when determining whether a faulty treatment led to death when a fatal illness was already present.
Are there differences between the concrete approach and alternative methods of result attribution?
The concrete approach is clearly distinct from abstract and generalizing methods by always making the specific, actual sequence of events the basis for legal assessment. While abstract methods could refer to general probabilities or risk assessments, the concrete approach exclusively considers the established facts and eliminates hypothetical chains of causation to the extent that they played no role in the actual sequence of events. This deliberately limits criminal liability to the realized risk potential.
