Limits to the boundaries of criminal law – Democratic limits to criminal policy guidelines

Current criminal law is characterized by overcriminalization and prevention goals. These developments must be viewed critically. The criticism of German criminal law scholarship is characterized by a spectrum of theories that goes by the name of legislation-critical legal theory. Triggered by the Federal Constitutional Court’s negative stance in the incest decision, the question of whether the criteria of the doctrine of legal interests are suitable for setting convincing limits to criminalization has been debated more intensively again for some time. The focus here is on the theoretical-philosophical and constitutional limits of these criteria. Little attention has so far been paid to another aspect: can and should the limitation criteria, as rationalization standards, contribute to the democratic decision-making process on criminal laws? In this sense, many approaches to legal interests see the developed criteria as “criminal policy guidelines” that are intended to make political decisions on criminal legislation more rational.

This aspect will be the focus of the following section. First, it will be clarified to what extent the developed “criminal policy guidelines” can be understood as standards for the rationalization of democratic decision-making on criminal legislation (I.). Secondly, the limits of the rationality of (criminal) legislation in a democratic constitutional state are analyzed, which can be found in the “intrinsic legality of political action” (II.). Against this background, thirdly, the specific reservations are developed that speak against scientifically formulated guidelines for the rationalization of democratic decision-making via (criminal) legislation (III.). Fourthly, on the basis of this problematic situation, starting points are outlined with which the formation of will via criminal legislation in democracy could be regenerated (IV.). The article closes with a conclusion (V.).