Professor for Criminal Law, University of Navarra (Pamplona, Spain)
Research topic:
Normativism and Criminal Law: Empiricism as a Limit to Criminal Law
Project description:
In criminal law, it is believed that it has the ability to develop the concepts it requires (person, movable property, payment, murderous intent…). One then speaks of “normativism”. In this way, the meaning of legal terms is determined (for example, the concept of movable property) and judgments are made regarding the attribution of responsibility to persons (for example, who is responsible for the act committed). Normativism presupposes that the terms have their own meaning in the language of lawyers; more specifically, in the particular language used by criminal lawyers. Accordingly, the terms used in the doctrine would function on a different level than that of the factual or empirical and would have their own, different methodological status.
Although the origins of this approach can be traced back a long way, it can be located in Kantian methodological dualism (noumenon vs. phenomenon). During the 20th century, this dualism was revived thanks to the authors known as Neo-Kantians. And years later, it was G.H. von Wright who revived the debate on methodological dualism. Today, normative statements are common in legislative, judicial and teaching activities.
One must ask whether normativization is the only way in which law can function, or a mere methodological option. It can be argued that normative statements are part of the very approach of the branches of knowledge of practice (that is, the branches of knowledge that are based on knowledge, not mere explanation), such as law. In criminal law in particular, two groups of normative statements with different functions can be distinguished. First, those that refer to concepts whose meaning is created in a language specific to this area of law (such concepts as movable property, remuneration and many more). Secondly, the judgments regarding the attribution of responsibility or attribution to a subject on the basis of his act. In the first group, normativization is the prerequisite for the functioning of laws and their interpretation. In the second group, normativization is the specific way of making attribution judgments. Ultimately, one can say that normativization in law is not a possible option, but its own modus operandi.
Law functions with the help of normatively developed concepts and judgments regarding attribution to persons. However, one must ask to what extent normative concepts and judgments depend on or are conditioned by empirical ones (weight, volume, chemical composition… of objects; or, for example, by the neural basis of the subject who is held responsible). The present communication argues that the empirical is often a necessary but not sufficient basis, but that sometimes even this basis is not necessary. It can even be argued that there are no purely empirical realities in the assertions of law, but that law carries out a process of creating or shaping objects and propositions that operates at a different level of meaning.
This normativization and its detachment from the empirical in turn forces us to ask about its limits. If everything is normative and the empirical plays a relatively weak role, what limits must be set for the assertions of law? It is necessary to examine the possible limits to normative activity: These limits may derive from the limitations of human knowledge as well as from the function of the legal domain in which normative assertions operate.
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Biografische Angaben
Prof. Dr. Dr. Pablo Sánchez-Ostiz is Professor of Criminal Law. J.S.D. and PhD. He is Fellow of the Alexander von Humboldt Foundation and the DAAD and Vice-rector for Faculty Affaires at the University of Navarra. His research topics are Concept of Imputation, Normtheory in Ccriminal Law, Practical Reason and Principles of Criminal Policy, Concept of Violence.(https://orcid.org/0000-0003-3461-904X) -
Publikationen
– Rezension von Rainer Forst/Klaus Günther, Normative Ordnungen, Suhrkamp, Berlin, 2021, 683 Seiten (von Pablo Sánchez-Ostiz) – A vueltas con la Parte Especial (Estudios de Derecho penal), Atelier, Barcelona, 2020; – Víctimas e infractores, cumplidores y héroes. La culpabilidad en clave de imputación, BdeF, Montevideo, Buenos Aires, 2018; – La libertad del Derecho penal y otros estudios sobre la doctrina de la imputación, Atelier, Barcelona, 2014; – Fundamentos de Política criminal. Un retorno a los principios, Marcial Pons, Madrid, 2012; – Imputación y teoría del delito. La doctrina kantiana de la imputación y su recepción en el pensamiento jurídico-penal contemporáneo, BdeF, Montevideo, Buenos Aires, 2008