Normative elements of the offense in the application of criminal law. Institutional, legally referential and dense elements in criminal law

Prof. Dr. Dr. Milan Kuhli

The question of the scope of the criminal court’s decision-making competence can arise to a particular extent with those elements of the offense that refer to non-criminal law norms and values and that are usually called “normative” in criminal law. The range of the type addressed here extends, for example, from the characteristic of ‘foreignness’ in the offense of theft, which refers to the entirety of the civil law property system, to ‘good morals’ in the area of bodily injury offenses. In contrast to current academic approaches, which examine the type of normative elements of the offence primarily with regard to questions of offender intent, the present project takes the more fundamental approach of analyzing the question of the application of normative elements of the offence by the criminal judge – a problem area that is examined on the basis of different case constellations.
One of the specific challenges that can arise in the judicial application of normative elements of the offense concerns the question of how the criminal court’s application of normative elements of the offense can be reviewed by third parties – i.e. above all in the criminal court of appeal. The starting point here is the empirical finding that appellate case law usually grants the lower courts leeway for assessment – leeway that is not, or only to a limited extent, reviewed on appeal. This empirical finding raises normative questions: Since the worthiness of recognition of judicial decisions depends on their rational reviewability, any reduction of this reviewability in turn requires legitimacy. The question of the extent to which a rule-based (and thus reviewable) concretization of norms can take place in the area of the application of criminal law of interest here must, however, take into account that the application of normative elements of the offence in the manner of “good morals” represents an act of evaluation and as such is possibly of a highly personal nature. The potential possibility that the application of criminal law, at least in a certain area, cannot be subject to clear value specifications, prompted the author to change his perspective, as a consequence of which the question of the intersubjectively verifiable limits of criminal law value judgments – which must be observed in every case – must be taken into consideration. Accordingly, the study is dedicated to the review criteria of consistency and justifiability. With recourse to semantic considerations, the thesis is developed that evaluative acts in a certain area can theoretically be carried out by eliminating their evaluative meaning, so that the corresponding use can be judged intersubjectively as justifiable without the evaluation implied in the acts in question necessarily having to be shared (by the speaker as well as by third parties). In the present constellation, this finding ultimately opens up a standard of revisability that is in any case independent of aspects of highly personal attitudes. At the same time, this opens up the possibility of reducing the possible significance of the highly personal in the application of criminal law to an acceptable level by establishing rules that deal with the concretization of elements of the offence and thereby influence the amount of reasoning required for judicial decisions. With the help of the review criteria developed in this way, the case law of the criminal courts of appeal described at the beginning is then subjected to a critical assessment.

The project has now been completed. The results will be published by Mohr Siebeck.

Normative Tatbestandsmerkmale in der strafrichterlichen Rechtsanwendung. Institutional, law-referring and dense elements in criminal law (publication series Jus Poenale [JusPoen]), Tübingen: Mohr Siebeck (ms. accepted for publication), zugl.: Habil., Frankfurt a.M., Univ., 2015 (ca. 552 pp.).