Definition and legal classification of the willingness to defend
Der Willingness to defend is a central concept in German criminal law and plays a decisive role, especially in connection with self-defense (§ 32 StGB) and defense of others (Nothilfe). It describes the internal attitude of a person who defends themselves or another person against a current, unlawful attack in order to repel that attack. The legal significance of the willingness to defend extends to distinguishing it from revenge, aggression, emergency situations, and other grounds of justification.
Fundamentals of the willingness to defend
The willingness to defend is part of the subjective element of justification in the context of self-defense. In addition to the objective elements of justification, which mainly include the self-defense situation and the means of self-defense, the presence of a willingness to defend is indispensable. Thus, criminal law does not protect any arbitrary defensive act, but only those carried out with the intention of repelling an unlawful attack.
Historical development
The necessity of the willingness to defend as a subjective element evolved in the 19th century through the distinction between objective and subjective elements of justification. The Reichsgericht and later the Federal Court of Justice (BGH) further developed and clarified this concept.
The subjective element of justification
Definition and significance
A willingness to defend exists when the person acting does so consciously and with the aim of repelling a current, unlawful attack from themselves or a third party. It is sufficient if the defensive intent is at least a contributing motive for the defensive action.Distinction from the knowledge element: To be distinguished from the willingness to defend is the so-called knowledge element. The person must be aware that they are in a self-defense situation. The willingness to defend additionally requires that the knowledge of the self-defense situation be causal for the conduct.
Legal requirements
According to consistent case law and the prevailing opinion in the literature, the willingness to defend must be present at the time of the defensive action; invoking self-defense afterwards is insufficient. The awareness and purpose of acting in defense must therefore be present at least in a diminished form (“dolus eventualis”).Key aspects:
- The action must not be carried out solely for other motives (e.g., revenge, retaliation, pure aggression).
- The willingness to defend must exist at the same time as the defensive act.
The willingness to defend in the context of self-defense and defense of others
Self-defense (§ 32 StGB)
In connection with § 32 StGB (“self-defense”), willingness to defend is a constitutive feature. If willingness to defend is lacking, there is no self-defense in the legal sense, even if a self-defense situation objectively exists. In this case, the action is unlawful.
Defense of others (Nothilfe)
Willingness to defend also plays a role in the institute of defense of others (Nothilfe). Here the perpetrator acts not for their own benefit, but in the interests of a third party. It is also required in this context that the motivation is aimed at defending the person attacked and not at personal objectives.
Examples from case law
Courts regularly examine, based on the external circumstances and the internal attitude of the actor, whether a willingness to defend was actually present. Typical situations in which willingness to defend is denied include cases where a person intends to take revenge after a danger has been averted or deliberately seeks an opportunity to harm an opponent.
Distinction from other motives and legal concepts
Revenge, aggression, and actions in the heat of passion
A defensive act that merely expresses anger, hatred, or revenge and does not (also) serve defense does not meet the requirements of willingness to defend. In actions carried out in the heat of passion, the willingness to defend may be present; however, case law always requires a, even if spontaneous, decision to defend.
Mistake as to justifying circumstances and putative self-defense
If a person acts merely under the (mistaken) belief that they are entitled to defend themselves (i.e., a mistake as to the existence of a self-defense situation), a mistake as to justifying circumstances (§ 17 StGB) may apply, depending on the case. The decisive factor remains the willingness to defend: There must subjectively be the belief that it is necessary to defend.
Negligent self-defense
Finally, it should be noted that if the willingness to defend is only negligent, a justification based on self-defense is excluded, since the subjective intent to defend is an essential requirement.
Significance in practice
Willingness to defend is not only important for criminal liability but also has implications in civil law matters, for example, tort law (see § 227 BGB regarding the right to self-defense in civil law). In legal practice, clarifying the willingness to defend is regularly the subject of judicial decisions, as the internal attitude of the actor plays a crucial role in assessing grounds for justification.
Literature and further sources
There are extensive commentaries on willingness to defend in numerous standard works on criminal law and relevant decisions by the highest courts, especially regarding the subjective element of justification in self-defense. Detailed discussion can be found in current editions of major commentaries on the Criminal Code as well as in the decisions of the Federal Court of Justice.
Summary: In German law, willingness to defend is a subjective element that must necessarily be examined, especially in the context of self-defense and defense of others. It protects those who act ready to defend and distinguishes permissible defensive acts from prohibited attacks or vengeful reactions. If willingness to defend is lacking, the justification is lost, so that the action is generally considered unlawful.
Note: This overview is provided solely for general information and cannot replace legal advice in individual cases.
Frequently Asked Questions
When is willingness to defend relevant in the legal sense?
Willingness to defend is particularly relevant in criminal law in cases of self-defense (§ 32 StGB). It represents the subjective element of the self-defense act, requiring that the defendant acts with the intention of defense against a current, unlawful attack. Willingness to defend distinguishes justified self-defense acts from acts performed without this intent, which are not justified under criminal law. Ultimately, the defendant’s internal objective orientation is paramount: They must recognize that an attack is taking place, and the action must serve (at least also) to repel this attack. If willingness to defend is lacking, there is no self-defense in the legal sense, even if a defensive act is objectively performed.
Is it necessary that willingness to defend is the primary motive for the act?
No, criminal law does not require willingness to defend to be the sole or predominant motive. It is sufficient if the intention to repel the attack was at least a contributing factor in the defensive act. Even if there are secondary motives such as anger, revenge, or hatred, this does not preclude justification under § 32 StGB as long as the intent to defend—if necessary, alongside other motives—still exists. Only if willingness to defend is completely absent and the act is determined solely by other motives can self-defense be excluded.
How is willingness to defend assessed in proceedings?
Whether the defendant acted with willingness to defend is determined on the basis of an overall assessment of the objective circumstances and the statements made by the defendant. The court must examine whether the defendant actually recognized the attack and consciously decided to repel it. Indicators include the direction of the action, prior statements, the course of events, and witness testimony. Even in acts committed in the heat of passion, an overall assessment may indicate that willingness to defend was still present; however, a detailed analysis of the motives is always required.
What role does willingness to defend play in putative self-defense?
In so-called putative self-defense, the perpetrator erroneously believes themselves to be under attack, but objectively, there is no attack. In this case, willingness to defend may exist, but the legal classification is different: The actual requirements for self-defense are not met, so justification does not apply. Depending on whether the mistake was avoidable, there may be liability for intentional action or—if the mistake was unavoidable—only for negligent conduct (§ 16 StGB). Willingness to defend continues to play a decisive role in distinguishing between intent and negligence.
Does willingness to defend also extend to third parties?
Yes, willingness to defend may relate not only to defense against an attack directed at oneself but also to the protection of third parties (defense of others). Those acting in the legal sense in defense of others must also act with the intention to defend in favor of another person. Here, too, it is crucial that the act is performed at least in part for the protection of the person attacked and that the perpetrator is aware of this protective function.
Is willingness to defend relevant even in the case of mistaken self-defense situations?
In the context of a mistaken self-defense situation, that is, mistaken belief in an attack (so-called putative self-defense), the intent to defend is initially subjectively present. However, this mistake leads to exemption from punishment only in limited circumstances. The perpetrator cannot rely on self-defense if the mistake was avoidable; for the criminal law assessment, it is decisive, once again, whether the willingness to defend arose from a genuine self-defense situation or only from a mistake.
What particular issues arise regarding willingness to defend for offenders acting in the heat of passion?
In acts committed in the heat of passion, the key question often is whether the perpetrator was still acting with willingness to defend or solely out of rage, anger, or revenge. Borderline cases are particularly problematic in very agitated or emotionally reactive offenders. Case law requires that the intent to defend was at least still a deciding factor and not completely overridden by entirely different motives. Assessment is always a case-by-case matter and depends closely on careful examination of the offender’s emotions and intentions.
Does willingness to defend exist in grounds of justification other than self-defense?
While willingness to defend is the classic subjective element of self-defense, it may also play a role in other grounds of justification—especially when subjective elements of justification are required (such as in the case of justifying consent or defense of others under § 32 StGB). In the more complex area of necessity (rechtfertigender Notstand), most authorities require a ‘rescue intent’ as a subjective element, which is comparable to willingness to defend.
If you have more specific questions about willingness to defend, you are welcome to submit them additionally.
