Definition and Significance of Theories of Criminal Law
Theories of criminal law refer in legal scholarship to the entirety of theories, concepts, and explanatory models used to elucidate and justify the meaning, purpose, function, and legitimacy of criminal law as well as state authority to impose punishment. They provide an academic framework for assessing why and how the state prosecutes offenses, the objectives pursued in doing so, and how the specific institutions of criminal law should be designed. Theories of criminal law significantly influence legislation, jurisprudence, and societal discourse on crime and punishment.
Development of Criminal Law Theories
Historical Development
The development of theories of criminal law can be roughly categorized into different historical phases. In antiquity and the Middle Ages, notions of retribution and sacred elements dominated. It was only during the Enlightenment that more rational and purposive justifications for state criminal law were sought.
- Antiquity and the Middle Ages: Punishments were primarily seen as retribution or atonement—often tied to a divine or familial order.
- Modern Age/Enlightenment: Philosophers such as Cesare Beccaria and Jeremy Bentham developed theories focused on deterrence, prevention, and humanity.
- Modern Era: From the 19th century onward, more differentiated theories emerged, incorporating social, psychological, and political aspects.
Classification of Theories of Punishment
Over time, various categories of criminal law theories have been identified. The primary distinction is between absolute and relative theories of punishment, as well as their combination in mixed theories.
Absolute Theories of Punishment
Absolute theories consider punishment as an end in itself, independent of preventive or societal effects. The main representative of this view is the retribution theory.
Retribution Theory
The retribution theory (also referred to as the classical theory of punishment) holds that punishment is indispensable as a just response to the violation of a socially recognized norm. The offense should be ‘balanced out’ by an appropriate punishment. Immanuel Kant argued that a person, as an end in themselves, deserves punishment—regardless of any possible benefit for society.
- Main point: Balancing guilt through a punishment proportionate to the offense.
- Criticism: No consideration of societal effects, no prevention.
Relative Theories of Punishment
In contrast, relative theories of punishment focus on the benefit of punishment for society—namely, through deterrence, rehabilitation, or protection. They regard punishment as a means to an end.
Special Prevention
The goal of special prevention is to either deter the offender themselves (negative special prevention) or positively influence and rehabilitate them (positive special prevention) to prevent future crimes. This includes measures such as revoking a driver’s license and therapeutic interventions.
General Prevention
General prevention targets the general public. Punishment deters potential offenders (negative general prevention) or strengthens public confidence in the legal order (positive general prevention). In this way, the state serves as a guarantor of the validity of norms for society at large.
- Negative General Prevention: Deterrence of copycat offenses.
- Positive General Prevention: Strengthening societal legal consciousness.
Mixed Theories
Since neither absolute nor relative theories of punishment can fully explain all aspects of the purposes of punishment on their own, so-called mixed (or unified) theories have been developed. These combine retributive and preventive elements and today form the basis for how punishment is handled in most modern legal systems.
- Example in Germany: The prevailing mixed theory holds that punishment is necessary to uphold the law (general prevention), but that it also requires culpability (retributive element).
Purpose of Punishment under Current Law
Purpose of Punishment under German Criminal Law
The German Criminal Code (StGB) includes in § 46 StGB a guideline for sentencing, which lists among other factors the ‘culpability of the offender’, the ‘effect of the punishment on the offender’ (special prevention), and the ‘expectations of the public’ (general prevention). This illustrates the implementation of the mixed theory in the German criminal justice system.
Significance for Sentencing and Sanctions
The selection of sanctions (such as imprisonment, fines, or correctional and preventive measures) is practically guided by both special and general preventive considerations, as well as the principle of guilt. In recent decades, the significance of rehabilitation as a preventive goal has also increased.
Critical Aspects and Reform Debates
The effectiveness and fairness of the various theories of punishment are the subject of ongoing legal and philosophical debate. Criticisms include, for example:
- Retribution Theory: Risk of retaliation instead of reparation; insufficient victim protection.
- Preventive Theories: Risk of instrumentalizing the offender; possible disproportionality of punishments.
Modern discussions increasingly include victim protection, restorative justice, offender-victim mediation, and the relevance of social context in evaluating punishment.
Significance of Criminal Law Theories in Legal Practice
Criminal law theories have a direct impact on the interpretation and application of criminal provisions, as well as the development of new statutory regulations and reforms. In particular, theoretical foundations are of central importance when assessing mitigating circumstances, the proportionality of sanctions, and the introduction of new forms of punishment.
Summary
Theories of criminal law form the academic foundation for the understanding, justification, and design of criminal law. In particular, they can be distinguished between absolute theories (retribution), relative theories (prevention), and their combination in mixed theories. The practice of modern criminal law is shaped by this interplay of different theories of punishment, which continues to influence legislation, jurisprudence, and legal practice, and remains a constant topic of academic and social debate.
Frequently Asked Questions
What are the main categories of criminal law theories in German law?
In German law, a major distinction is drawn between absolute, relative, and the so-called mixed theories. Absolute theories of punishment view the purposes of punishment as atonement for guilt or justice and prioritize the retribution for an unlawful act. Relative theories, on the other hand, see the main purpose of punishment in its preventive effect—that is, in preventing further offenses in the future; within this, special prevention (deterrence or rehabilitation of the offender) and general prevention (deterring the public or strengthening legal awareness) are distinguished. Mixed theories, which today dominate both legislation and jurisprudence, seek to combine both approaches in a graduated model. At their core, they regard punishment as proportionate to guilt but also require functional justifications for sentencing, especially for prevention purposes.
What role does the offender’s culpability play in theories of criminal law?
Particularly in the absolute theory, which is based on the retribution of the act, the offender’s culpability occupies an outstanding position—the punishment is intended solely as a balance for the wrongdoing committed and, in principle, must not exceed the level of individual guilt (principle of guilt). Relative theories, by contrast, focus more on the effects of the punishment for society or the offender themselves, and the degree of guilt may appear secondary. Nevertheless, the German Basic Law (Art. 1(1) and Art. 20(3) GG) and § 46(1) StGB require that even preventively motivated punishments must always be proportionate to guilt. The principle of guilt thus serves as a non-negotiable limit for any sentencing and is also fundamental in mixed theories.
How are theories of criminal law reflected in legislation and jurisprudence?
German criminal law is largely oriented towards the mixed theories, which are reflected in the Criminal Code and in the jurisprudence of the Federal Court of Justice and the Federal Constitutional Court. The absolute theory shapes the requirement of culpability as a prerequisite for punishment; at the same time, the ideas of relative theory are incorporated into provisions such as § 46(1) StGB, which expressly mentions aspects of general and special prevention as purposes of punishment. In sentencing, courts regularly assess both the punishment appropriate to guilt and the preventive expectations attached to the sentence.
What criticisms are raised in discussions about the different theories of criminal law?
The absolute theory is often criticized for focusing too much on retribution and thus sometimes addressing backward-looking societal needs for punishment, without adequately considering future offenses and the interests of society. The purely relative theory, on the other hand, risks turning the offender into an object of state power, since it primarily pursues prevention goals, which could thereby undermine the principle of guilt. Both extreme positions are considered inadequate for reasons related to human rights and the rule of law, which is why the integrative mixed theory is seen as a sensible compromise today, despite ongoing criticism regarding the delimitation and specification of its individual elements.
What significance do special and general prevention have in German criminal law?
General and special prevention are central concepts of the relative theory of punishment and play a key role in German law, especially in justifying the need for punishment and sentencing. General prevention (deterrence of the public, strengthening of legal awareness) justifies imposing a penalty, for example, to protect public confidence in the legal order. Special prevention (deterrence or rehabilitation of the individual offender) aims to prevent the specific offender from committing further crimes. Both aspects are always limited by the principle of guilt.
Does the requirement for rehabilitation play a role in the application of criminal law theories?
The requirement for rehabilitation is situated within the scope of special prevention theory and has gained great importance through the case law of the Federal Constitutional Court (particularly in the law governing the execution of sentences). Accordingly, punishment is not to be regarded solely as a means of retribution or deterrence; rather, it is intended to offer the offender a perspective for reintegration into social life. This has now also been legally acknowledged, for example, in the organization of the execution of sentences (§ 2 StVollzG) and in decisions regarding suspended sentences.
