Punishment Theory, Concept and System of Criminal Offense

Abstract

Although the theory of punishment, especially the issues of the goal and justification of punishment, and the legitimacy of punishment have changed considerably over the past 100 years, the concept of criminal offense and the system of criminal offense legal requirements have remained virtually unchanged during this period. Punishment theory, the concept of a criminal offense, and the system of legal requirements for criminal offenses are no longer compatible. Insights from norm theory, which are taken into account in many other areas of law, have found virtually no expression in the concept and requirements of criminal offense; the same is true of changes in the constitutional framework. The following considerations attempt to point out these deficits, to substantiate them, and to concretize them in order to draw a new picture of the criminal offense and its prerequisites, a picture that harmonizes with the only theory of punishment that still appears to be justifiable today and that takes into account both the insights from norm theory and from constitutional principles.