User:Visviva/Legal good
 | This is not a Wikipedia article: It is an individual user's work-in-progress page, and may be incomplete and/or unreliable. Legal good, legally protected good, Rechtsgut |
In the civil law tradition, a legal good or legally protected good is an interest or right that the legal system protects. Legal goods are a central concern of criminal law, and according to some theories of crime, the state can only legitimately criminalize conduct that interferes with a legal good.
The protection of legal goods is a major concern of criminal law, and the theory of legal goods limits the scope of criminal liability. According to the theory of legal goods, a criminal law provision is only legitimate if it serves to protect a legal good. The concept of legal good emphasizes the negative merit of a criminal act. Under this theory, moral ideas or mere feelings are not protected or punished by criminal law.
Legal systems vary greatly in the legal goods that they protect, although certain values such as the right of the individual to life, bodily integrity, and self-determination are widespread. The concept of legal goods plays a particularly strong role in the German legal tradition, in which it was developed, and in legal systems influenced by that tradition. German legal textbooks commonly state that the purpose of criminal law is the protection of legal goods.[1] The concept of legal goods is not generally used in the common law tradition, where the harm principle plays a similar role.[2]
History
[edit]In 1834 Johann Michael Franz Birnbaum introduced the idea that crime is not established by the violation of rights, as P.J.A. Feuerbach had proposed, but only by the violation of legally protected goods.[3] This marked the beginning of the transition from considering crimes as violations of the law to considering them as violations of legal goods. Initially, it enabled an expansion of criminal law. Today, it is mostly understood as a limitation and guideline for interpretation.[4] Birnbaum's original conception has been criticized as too abstract and therefore not fulfilling the delimiting function of the ius puniendi .
In the later 19th century, Karl Binding and other German legal positivists revived Birnbaum's concept of legal good.[5] Binding however regarded legal goods to be relevant only on a policy level, as guiding the work of the legislator; in Binding's view it was not the infringement of legal goods but the violation of a legal norm that made up the substance of crime.[6] Following Binding, the concept of a legal good became a rationalization for expanding the state's criminal power rather than a basis for limiting it as Birnbaum had envisioned.[7]
According to von Liszt, and under a material conception of the legal good, its origin lies in the interest of life existing before the law and arising from social relations. A social interest does not become a legal good until it is protected by law.
Types
[edit]The theory of legal goods generally distinguishes between individual and collective legal goods. The chief role of this distinction is in the interpretation of existing criminal law, but it also comes into play in private law, for example, in the weighing of interests in the case of necessity or the possibility of justifiable consent, which only exists in the case of individual legal goods.
Individual legal goods, such as property, bodily integrity, and reputation, serve the interests of individual persons. An individual can generally dispose of individual legal goods voluntarily, although some individual legal goods, such as the right to life, may be considered an exception.
Collective legal goods serve the interests of the general public. Examples of collective legal goods include:
- Collective trust, for example trust in the security of money,
- Protecting exhaustible collective reasources such as the environment,
- The continued existence of the state and its institutions, and
- Protecting limited state resources, for example against embezzlement of retirement funds.
Protection
[edit]Legal goods can be protected by both civil and criminal law. If the unlawful interference exceeds a certain threshold, it can be punished under criminal law. The threshold is determined by the respective degree of culpability. The criminal law protection of individual legal goods arises from the duty of the constitutional and social state to protect the individual legal goods. An interference with individual legal goods that is relevant under criminal law is at the same time an interference with the legal order itself.
However, limits are set to the protection of legal goods under criminal law according to the constitutional principle of proportionality. State sanctions may only be used if the legal good cannot be protected by any other means. Since criminal law is only used as a last resort to protect a legal good, this is sometimes referred to as the subsidiarity of criminal law.
Private law provides little or no protection for collective legal goods, since their violation does not usually directly harm individuals. Illegal interference with collective legal goods is sanctioned under administrative law as an administrative offense or under criminal law, for example, as deception in legal transactions (forgery). Collective legal goods also include the “safety and ease of traffic”, or the environment as the natural basis of human life.
In the event of a conflict between different legal goods, a weighing of the competing goods is required.
Compared to harm principle
[edit]In contrast to the theory of legal goods, the Anglo-American understanding of criminal law is dominated by the harm principle, which goes back to the British philosopher John Stuart Mill[8] and also influences international criminal law. The harm principle is not linked to the protection of specific legal goods, but criminalizes potentially harmful behavior. Thus for example the Crime and Disorder Act 1998 and the Anti-social Behaviour Act 2003 are directed against any form of “antisocial behavior”.
Relationship between legal goods and norms
[edit]Various views of legal goods have been proposed. Scholars differ, for example, on whether the legislature creates individual legal goods in the first place by protecting them in a specific criminal provision (the "normative" concept of legal good) or whether there are pre-existing legal goods that the legislature must protect through criminal law (the "natural" concept of legal good). This discussion gained relevance with the 2008 incest decision of the Federal Constitutional Court of Germany.[9] Under the normative concept of legal good, the legal good becomes equivalent to the ratio legis and no longer limits lawmaking authority.[10]
Crimes by legal good
[edit]Examples of crimes and the legal goods they are considered to protect include the following:
| Crime | Legal good protected |
|---|---|
| Murder | Life[11] |
| Influence peddling | Prestige of the government[12] |
By legal system
[edit]Examples of legal goods protected in legal systems that recognize the theory of legal goods include the following.
- The legal goods protected by delict in the law of Germany are, in particular, life, limb, honor, freedom and property (Section 823 of the Bürgerliches Gesetzbuch (BGB)). Article 1 of the German Basic Law lists the legal goods protected by fundamental rights. According to this, the highest priority is the unconditional guarantee of human dignity.
References
[edit]- Ambos, K. The Overall Function of International Criminal Law: Striking the Right Balance Between the Rechtsgut and the Harm Principles. Criminal Law, Philosophy 9, 301–329 (2015). https://doi.org/10.1007/s11572-013-9266-1
- Die Rechtsgutstheorie. Legitimationsbasis des Strafrechts oder dogmatisches Glasperlenspiel? Nomos, Baden-Baden 2003
- Marc Thommen: Tolerance & Anti-Social Behavior in: Andrew von Hirsch, Kurt Seelmann, Wolfgang Wohlers (eds): Mediating Principles. Begrenzungsprinzipien bei der Strafbegründung. Nomos Verlagsgesellschaft, 2006, ISBN 3-8329-1933-3. pp. 109–120
- [https://www.oesterreich.gv.at/themen/dokumente_und_recht/strafrecht/1/Seite.2460101.html
- Detlef Krauß: Erfolgsunwert und Handlungsunwert im Unrecht. [Journal for the Study of Criminal Law (Zeitschrift für die gesamte Strafrechtswissenschaft, ZStW)] 1964, online published on November 2, 2009
- Eric Hilgendorf: Punitivity and the doctrine of legal interests. Skeptical notes on some key concepts of contemporary criminal law theory NK 2010, pp. 125–131
- Roland Hefendehl: The legal doctrine and the special part of the criminal law: A dogmatic-empirical comparison of Chile, Germany and Spain ZIS 2012, pp. 506–512
- ^ Mitsch, Wolfgang (2019-01-15). "Maßstäbe für wissenschaftliche Strafgesetzgebungskritik – „Traditionelle" Maßstäbe" (PDF) (in German). p. 29.
- ^ Ambos, Kai (2015). "The Overall Function of International Criminal Law: Striking the Right Balance Between the Rechtsgut and the Harm Principles: A Second Contribution Towards a Consistent Theory of ICL". Criminal Law and Philosophy (9): 302.
- ^ Dubber, Markus Dirk (Summer 2005). "Theories of Crime and Punishment in German Criminal Law". The American Journal of Comparative Law. 53 (3): 687. doi:10.1093/ajcl/53.3.679.
- ^ Thomas Vormbaum (2019). Einführung in die moderne Strafrechtsgeschichte. Springer-Lehrbuch (in German). Berlin, Heidelberg: Springer Berlin Heidelberg. pp. 52–59. doi:10.1007/978-3-662-59963-1. ISBN 978-3-662-59962-4.
- ^ Dubber 2005, p. 687.
- ^ Eser, Albin (1965). "The Principle of 'Harm' in the Concept of Crime: A Comparative Analysis of the Criminally Protected Legal Interests". Duquesne Law Review. 4: 345, 358.
- ^ Dubber 2005, p. 687-688.
- ^ Arthur Ripstein: Beyond the Harm Principle June 2, 2006 (English)
- ^ Greco, Luís (May 2008). "Was lässt das Bundesverfassungsgericht von der Rechtsgutslehre übrig? Gedanken anlässlich der Inzestentscheidung des Bundesverfassungsgerichts" (PDF). ZIS.
- ^ Greco 2008, p. 239.
- ^ Dubber 2005, p. 688.
- ^ Gamkhitashvili, Giorgi (2023). "Problematic Aspects of Influence Trading in the Context of Comparative Legal Analysis of Georgia and European Countries". Journal of Law: 252, 262.
Category:Philosophy of law Category:Criminal law legal terminology Category:Civil law legal terminology