On Feindstrafrecht

In earlier posts I have raised the question of the function of the criminal law in the particular context of theories of criminalisation. Here I suggested that many of the so-called theories of criminalisation focused on the idea that criminal law was centrally about the protection of certain rights or interests against wrongdoing, but that such theories often had little to say about the function of criminal law beyond that. Now it may be that there is no function of criminal law beyond the protection of these goods, but that seems unlikely and it is necessary to think about alternative views.
One such alternative view is that of the German legal theorist, Gunther Jakobs. Jakobs view is that the function of criminal law is to allow individuals to engage with each other in complex modern societies, specifically where mechanisms of trust no longer operate so as to form the foundation for social interaction. Individuals must however trust that the validity of the norms of the criminal law is generally recognised, and presumably that breaches of the norms will be enforced. Punishment is thus paradigmatically directed at communicating with citizens about the breach of norm and need to cultivate law-abidingness.

An Enemy of the State?

Up to this point this theory is not too unconventional, indeed it appears to have parallels with views which take community and communication to be central to the process of determining liability and punishment. And like many functionalist accounts it says little or nothing about the content of the law, in place of the generalised social trust in the validity of the norms. However, Jakobs views have been controversial because he goes beyond this to suggest that the law orients itself differently when dealing with those who do not accept general norms and seek merely to exploit the trust of others, specifically those who offend persistently or engage in organised crime or are involved in terrorist groups. Such offenders are viewed as 'enemies' (hence 'feindstrafrecht' or enemy criminal law) who have demonstrated by their conduct that they cannot guarantee to conduct themselves as loyal citizens. Punishment for such offenders then takes the form of 'instrumental communication', directed at the actor who has excluded themselves from the legal community, and indeed he suggests that there are identifiable trends in German law towards an exclusionary, instrumental, 'enemy' criminal law of this sort.

Such views have, as you might expect, been controversial. It offends against the liberal idea that all citizens must be treated with equal concern and respect and that rights and procedural protections should apply equally. Moreover, the central concept of the 'enemy' is vague and ill defined, and seems to open the door to the possibility that individuals or groups might be ostracised or excluded in law because their lifestyle or conduct is not accepted or tolerated by other members of the community.

So where does this leave us? Is there anything of value to be taken from this account? Well, as a starting point I think it is necessary to distinguish between the descriptive and normative elements of the theory. As a matter of fact certain groups or communities are excluded and there has been a turn in the criminal law to highly punitive measures directed at such groups. It is surely important to recognise these features of the law and to ground any normative theorising on an understanding, not of an ideal law, but the law as it operates in modern society. This does not entail acceptance of the conclusion that it is justified to treat such 'enemies' differently. Equally, I think that there is something in the placing of trust in norms at the centre of the theory that is worth thinking about. While it appears to be empty of content (trust in the validity of any norms irrespective of content?) it surely offers possibilities for a richer account of the criminal law. We trust people in different ways because of their roles in society and the kind of relations that we have with them. In these terms some of the goods or interests protected by the criminal law can be reconceived as breaches in certain kinds of trust, whether this be at an individual level or in relation to the negligent carrying out of certain specialised activities. This might offer a fruitful avenue for thinking about criminal law in the modern state.