Citation

Hildebrandt M. New Crim. Law Rev. 2009; 12(1): 43-68.

Copyright

(Copyright © 2009, University of California Press)

DOI

10.1525/nclr.2009.12.1.43

PMID

unavailable

Abstract

This contribution stems from a workshop on foundational issues in the philosophy of criminal law. This may raise expectations for a discussion of the core business of what is called substantive criminal law: the structure of crime, the concept of intention, complicity and participation, attempt and preparation; acts and omissions; or causation. However, most punitive sanctions—especially fines—concern regulatory offenses that are structured to a much lesser extent by such moral notions as culpability and wrongfulness, while the applicable burden of proof does not even come close to the presumption of innocence in the case of criminal offenses. This raises the questions of how the difference between regulatory and criminal offenses is to be understood and of the extent to which regulatory offenses (should) fall within the scope of the criminal law. The answers to these questions will be derived from an exploration of the historicity of crimes and regulatory offenses, and their relationship to the (modern) state. I will start off with tracing the emergence of contraventions and crimina in the course of the early and late Middle Ages and the subsequent advent of a domain of "police" at the threshold of modernity next to the already existing domain of "justice." After this the strict separation of the domains of "police" (covering Polizeidelikten) and "justice" (covering Verbrechen and Vergehen) in nineteenth-century Germany will be discussed as well as the relationship of both domains to different conceptions of the Rechtsstaat and the État de droit. The main argument will be that understanding the difference between criminal and regulatory offenses in essentialist terms, such as the medieval malum in se and malum prohibitum, does not make sense. Building on a nonessentialist difference I will suggest that differential procedural constraints should be based on pragmatic arguments, which, however, do not equate with utilitarian arguments. In line with philosophical pragmatism the separation of means and end that characterizes utilitarianism is rejected and replaced by a pragmatic approach grounded in the normative position of a constitutional democracy in the sense of an État de droit or a substantive conception of the Rechtsstaat. This implies that the aim of punishing regulatory offenses is to sustain an effective domain of "police" under the rule of law, meaning that the punishment of regulatory offenses will have to be regulated by the same principles that inform the "fair trial." This will allow the state to impose punitive sanctions to prevent and retaliate violations of specific legal norms, while enabling citizens to contest the incriminated violation as well as the lawfulness of the violated legal rule.