Concept and significance of justifying grounds
In German law, justifying grounds refer to statutory or recognized circumstances under which an act that would otherwise fulfill the legal elements of an offense and be legally wrongful is, by exception, not considered wrongful. They remove the wrongfulness of an act and result in a situation where, although the act objectively fulfills the elements of a criminal offense or a civil law breach, it is nevertheless not unlawful and, thus, does not result in criminal or civil liability. Justifying grounds are relevant in all areas of law, particularly in criminal law, civil law, and public law.
Systematics and legal classification of justifying grounds
Distinction from other legal terms
Justifying grounds essentially differ from excusing grounds and from grounds for exclusion of culpability. While excusing grounds according to § 33 StGB and § 35 StGB negate the personal blameworthiness of a wrongful act, justifying grounds already remove the unlawfulness. Grounds for exclusion of culpability only operate at the level of culpability. In the absence of a justifying ground, the act remains unlawful, even if, in individual cases, it was not committed culpably for subjective reasons.
Justifying grounds in criminal law
General overview
In criminal law, according to §§ 32 and 34 StGB, the existence of a justifying ground means that an otherwise punishable act is permitted in light of higher-ranking interests. The most important statutory justifying grounds are:
- Self-defense (§ 32 StGB)
- Necessity (§ 34 StGB)
- Consent
- Justifying conflict of duties
- Exercise of legitimate powers (e.g., the right of arrest under § 127 StPO)
Self-defense and necessity
The self-defense provision allows defense against an ongoing, unlawful attack with appropriate means (defensive action). The justifying necessity encompasses actions that are necessary to avert dangers, provided that the interest being protected significantly outweighs the one being impaired.
Consent
Effective consent by the holder of the legal interest can exclude the unlawfulness of an act that would otherwise be punishable, for example in the case of medical interventions with patient consent.
Justifying conflict of duties
In a justifying conflict of duties, an act is in conflict between at least two legal duties, only one of which can be fulfilled. The appropriate performance of one duty at the expense of the other is then considered justified.
Other justifying grounds
In addition to the grounds enshrined in the Criminal Code, further justifying grounds are recognized in practice, such as the exercise of householder’s rights or police measures based on special statutory provisions.
Justifying grounds in civil law
In civil law, justifying grounds result in the fact that a wrongful act does not give rise to a claim for damages, provided it is covered by a justifying ground (§ 823 BGB et seq.). A typical example is self-defense under § 227 BGB.
Self-defense right (§ 227 BGB)
The right to self-defense allows for the repulsion of an imminent attack against personal integrity, life, property, or other legal rights. Necessary and appropriate defensive measures mean that there is no liability for any damages caused.
Consent
Here, too, a valid and informed consent by the injured party can serve as justification, for example in sporting contact or medical treatments.
Self-help (§ 229 BGB)
Self-help permits the entitled person, under strict legal conditions, to help themselves—for example, to recover an item independently—if judicial assistance would come too late.
Justifying grounds in public law
In public law, justifying grounds are particularly relevant in official acts. Authorities may interfere with constitutionally protected rights only on a legal basis and in compliance with the principle of proportionality or based on justifying grounds.
Statutory authorizing provisions
If authorities interfere, for example, to avert danger, conduct criminal prosecution, or ensure public safety, police law justifying grounds may apply (e.g., to prevent harm to public security).
Requirements and legal consequences of justifying grounds
Requirements
Recognition of a justifying ground generally requires:
- Objective requirements: The presence of the statutory legal elements of the relevant justifying ground.
- Subjective justification element: In most cases, it is necessary for the perpetrator to act with the awareness and intention of invoking a justifying ground.
If the subjective element is missing, the act may still be considered unlawful.
Legal consequences
If a justifying ground is present, the act is not unlawful. In criminal law, this means impunity; in civil law, exemption from liability for damages. In public law, the actions of public authorities are limited to what is permitted.
Distinction and significance in legal practice
The correct application and interpretation of justifying grounds is critical for the assessment of conduct in daily life as well as in judicial proceedings. An incorrect acceptance or rejection of a justifying ground can have significant legal consequences.
Summary
Justifying grounds are of central importance in determining whether an act that satisfies the legal elements of an offense is actually unlawful. They apply in all main areas of German law and are an essential part of legal evaluation of human behavior. Through statutory regulation, but also through recognition in customary law, justifying grounds provide a fair balance of divergent interests and ensure flexibility in extraordinary danger and conflict situations.
Frequently asked questions
When does justifiable self-defense exist?
Justifiable self-defense exists when someone defends themself or another against a present, unlawful attack (§ 32 StGB). Self-defense requires that an attack is immediately threatening or already underway, is unlawful—that is, not itself justified—and that there is no other reasonable and equally effective means of defense. In general, the right of self-defense allows repelling the attack with necessary means; however, the limits of necessity (that is, the least severe effective means) and the requirement of appropriateness (no gross disproportion, such as in the case of obviously harmless attacks) must be observed. Exceeding these boundaries may only be justified under ‘excessive self-defense’ (§ 33 StGB) if the defender acts out of confusion, fear, or terror and thereby exceeds the limits of self-defense.
What is the significance of justifying necessity in criminal law?
The justifying necessity pursuant to § 34 StGB is a central justifying ground that protects not only one’s own interests, but also those of third parties. Here, an imminent danger to a legal interest—such as life, health, property—is averted by a necessary and appropriate act, whereby the protected interest must significantly outweigh the one impaired. The perpetrator is therefore not acting unlawfully if, in the face of danger, he commits an otherwise punishable act to protect a more significant interest. Justifying necessity does not require a specific person as the victim of the attack; however, it is always a prerequisite that there are no clearly reasonable alternatives and that the danger cannot be averted otherwise. In addition, the law may not prescribe in an individual case that the legal interest must give way.
Can justifying consents also be valid in serious criminal offenses?
As a general rule, justifying consent is a recognized justifying ground; however, there are significant restrictions for serious crimes—especially those against physical integrity and life. Consent is only possible if the relevant legal interest can in principle be freely disposed of by the person concerned; for example, in cases of minor deprivation of liberty, interference with property, or bodily harm with consent (e.g., medical intervention). In the case of homicide, serious bodily injury, and generally in life-protection cases, a so-called prohibition on disposition applies, so that consent cannot serve as justification. Furthermore, every justifying consent requires that the injured party is capable of consenting and that consent was declared voluntarily, seriously, and prior to the act.
When does a justifying conflict of duties arise?
A justifying conflict of duties occurs when the perpetrator is unavoidably confronted with several legal duties that cannot all be fulfilled at the same time, so fulfilling one duty necessarily entails breaching the other. In such cases, acting to fulfill the duty that takes priority in the specific situation is justified, and the alternative duty is subordinated. The selection of which duty to fulfill is guided by the hierarchy of duties relevant to the specific situation, with higher-ranking legal interests generally taking precedence. This justification is particularly relevant for professions such as doctors, firefighters, or police officers, who in emergencies must choose between competing duties.
What requirements does the law impose for acting in defense of legitimate interests as a justifying ground?
The defense of legitimate interests is recognized as a justifying ground in various specific legal provisions, such as § 193 StGB (defense of legitimate interests in insult offenses) and, to a limited extent, also in interventions in the rights of others for the defense of one’s own or another’s legally granted interests. It is required that the act is within the necessary limits and is actually aimed at protecting a legitimate own or another’s interest, sufficiently justifying the interference with the rights of others. Furthermore, a balancing of all affected interests is required; the interest in information, criticism, or reporting must, in the specific case, outweigh the protected right of the affected party.
Are there cases where justifying actions are expressly permitted by law?
Yes, in addition to the classical justifying grounds, there are specific statutory permissions in German law under which certain actions are expressly authorized by law. This is often found in the field of official compulsory powers (e.g., arrest under § 127 StPO, criminal complaint and prosecution, police coercive measures) or in private law (self-defense under § 227 BGB, self-help under § 229 BGB). These statutory permissions legitimize actions that would otherwise be both legally defined and unlawful, but are justified under the precise requirements of the respective provision. The respective systematic framework is always decisive, particularly the elements of the act and the balancing of legal interests.
What role do the objective and subjective justification conditions play for justifying grounds?
When examining justifying grounds, case law distinguishes between the objective and subjective justification conditions. The objective justification condition requires that a situation actually existed which opens up a justifying ground (e.g., an actual attack in cases of self-defense). The subjective justification requires the perpetrator to have acted with the necessary awareness of justification, i.e., with the intention of relying on a justifying ground (for example, to ward off an attack or to save a higher-ranking legal interest). If the subjective element is missing, criminal liability for intentional offenses is excluded; however, prosecution for negligence may be considered, provided the law foresees it and the act was committed negligently according to the requirements of the provision.
