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Research

Publications

I. Independent publications

  1. Criminal Law on Fraud in France and Germany (1999).
    XXVII, 583 pp., C. F. Müller
    Awarded the Dr Georg Rössler Foundation Prize by the Association of Lawyers at the Federal Court of Justice (1999) and the Prize for the Promotion of Young Scholars by the Centre for French Studies at the University of Freiburg im Breisgau (1999).
    Review: Pawlik GA 2001, 342
  2. The Core of Criminal Law. The General Theory of Crime and the Theory of Error (2006)
    XVI, 481 pp., Mohr Siebeck
    Reviews: Gaede HRRS 2009, 37; Garde Nordisk Tidsskrift for Kriminalvidenskab 2008, 206; Gössel GA 2007, 602; Heger JZ 2008, 35; Kuhlen ZStW 120 (2008) p. 140.
  3. A Brief Guide to Style for Lawyers (4th edition 2024)
    XVIII, 320 pp., C. H. Beck
    Reviews of the fourth edition: Savini RpflStud. 2025, 135; Huber BayVBl. 2026, 431.
    Reviews of the third edition: Krämer, *Sprachnachrichten* (published by the Verein Deutsche Sprache e. V.) No. 74 (II/2017), p. 29; Bley http://dierezensenten.blogspot.com/%202017/02/rezension-kleine-stilkunde-fur-juristen.html, last accessed: 2 June 2017.
    Reviews of the second edition (2009): Gerberding, *Bucerius Law Journal* 2009, 133; Gerbode BRJ 2014, 85; Herrler DNotI-Report 2011, 8; Rebler SVR 2010, 480; ibid. DVBl 2010, 1498.
    Reviews of the first edition (2002): Baatz NJ 2003, 584; Diggelmann SJZ 2003, 338; von Els FamRZ 2004, 860; Fahl JA 10/2003, p. VI; Heussen, *AnwBl.* 2005, XXVI; Krüger, *JuS* 2003, XLVI-II; Lamprecht, *JURA* 2003, 216; Rotthaus, *ZfStrVO* 2003, 123; Schimmel JA 2/2004, p. V; Schulze-Fielitz DVBl 2004, 1090; Strigl Österreichisches Anwaltsblatt 2003, 434; Vahle DVP 2004, 43.
  4. A Short Course in Rhetoric for Lawyers (2nd edition 2017)
    XV, 327 pp., C. H. Beck
    Reviews of the first edition: Gas Jura Journal 2010, Issue 1, p. 33; Gerberding, *Bucerius Law Journal* 2009, 133; Unseld, *ZJS* 2010, 565; Wörtz, *Jurawelt* 2010, http://www.jurawelt.com/literatur/ausbildung/285912.
  5. The Culture of Responsibility (2007)
    X, 173 pp., merus
    Reviews: Assheuer, *DIE ZEIT*, 6 June 2007, p. 58; Raab, *Mittelbayerische Zeitung*, 8 August 2007 (Arts section).
  6. Polyphem (2005)
    243 pp., Edition Peperkorn
    Novel.
  7. On the Sixth Day. Record of an Annihilation (2015)
    176 pp., Schöffling & Co.
    Novella.
  8. Punishment and Retribution – Rehabilitation and the Limits of a Principle (2016)
    21 pp., NOMOS and C. H. Beck Review: Feijoo Sánchez in *InDret Penal* 3/2017, pp. 13–20, http://www.indret.com/pdf/1310.pdf, accessed on 8 November 2017.Spanish translation in: Andrés Falcone et al. (eds.), Autores Detrás del Autor. Homenaje al Prof. Dr. Dres. h. c. Friedrich-Christian Schroeder, Buenos Aires (AD HOC) 2018, pp. 95–110.

  9. Fully Satisfactory (2020)

    340 pp., Königshausen & Neumann

    Novel.

  10. Criminal Procedure Law. A Textbook for Students and Aspiring Practitioners (2020) (XV, 262 pp., utb and Mohr Siebeck) Review: Krenberger 2021, https://dierezensenten.blogspot.com/2021/05/rezension-strafprozessrecht.html, accessed on 21 May 2021.
  11. Available online (2023) (240 pp., Königshausen & Neumann) Review: Rönsch , literaturkritik.de, available at literaturkritik.de/walter-im-netz,29768.html, accessed on 20 June 2023. Novel.

II. Essays and Notes

  1. Indemnity for Members of the State Parliament – on the regulatory content of Section 36 of the German Criminal Code (StGB), JZ 1999, 981–986.
  2. An Overview of Indemnity and Immunity (Article 46 of the Basic Law), JURA 2000, 496–502.
  3. Section 298 of the German Criminal Code (StGB) and the doctrine of types of offences, GA 2001, 131–141.
  4. Comparative Criminal Law Systems – Reforms in Criminal and Procedural Legislation (1997–2000) – Germany, Revista Penal 2001, No. 8, pp. 131–135.
  5. Bribery of employees, international criminal law and criminal tax law – A response to Randt, BB 2000, 1006, wistra 2001, 321–327.
  6. Tender fraud in direct award procedures – Commentary on Federal Court of Justice (BGH) judgement of 22 July 2001 – 1 StR 576/00, JZ 2002, 254–256.
  7. ‘Jupiter’s Symphony’ and the ‘Schlagerparade’ – Criminal Law examination paper, JURA 2002, 415–424.
  8. The new criminal law governing the stock exchange with regard to European law – on the reform of Section 88 of the Stock Exchange Act (BörsG), WM 2002, 1483–1488 (together with Dimitris Ziouvas).
  9. The Remorseful Commission Agent – Criminal Law Examination Essay, JURA 2002, 708–715 (with Klaus Tiedemann).
  10. On the doctrine of concurrent offences: The significance of concurrent offences and how to assess them, JA 2004, 133–137 (Part 1 of a three-part series of articles).
  11. Robbery – the final link between violence and taking property. Commentary on BGH NStZ-RR 2002, 304, NStZ 2004, 153–155.
  12. Masked faces, distorted voices – audiovisually altered statements by undercover agents? German Law and the ECHR, StraFo 2004, 224–229.
  13. On the doctrine of concurrent offences: unity of action and plurality of actions, JA 2004, 572–576 (Part 2 of a three-part series of articles).
  14. The finality of the use of force in robbery – a change of motive on the part of the perpetrator. Commentary on BGHSt. 48, 365, NStZ 2004, 623–625.
  15. Positive and negative result-based offences – acts and omissions, ZStW 116 (2004) pp. 555–584.
  16. Robbery by omission?, NStZ 2005, 240–243.
  17. On the doctrine of concurrent offences: Concurrence of laws, JA 2005, 468–471 (Part 3 of a three-part series of articles).
  18. Acting on Orders and Section 3 of the German Act on Offences against Public Order (VStGB), JR 2005, pp. 279–283.
  19. To what extent does the European Constitution permit a European criminal code?, ZStW 117 (2005) pp. 912–933.
  20. The burden of proof in criminal proceedings, JZ 2006, 340–349.
    Turkish translation by Koray Doǧan entitled “Ceza Muhakemesinde İspat Yükü” in Yener Ünver (ed.), Ceza Muhakemesi Hukukunda Delil ve İspat (2014) pp. 541–564.
  21. On Legal Style, JURA 2006, 344–348.
  22. Brain research and the concept of culpability. A review and interim assessment, in: Andreas Hoyer et al. (eds.), Festschrift for Friedrich-Christian Schroeder on his 70th birthday (2006), pp. 131–144. Book review: Radtke GA 2008, 169 (170 ff.).
  23. An Introduction to International Criminal Law, JuS 2006, 870–873 and 967–969.
  24. Language and Style in Legal Texts, JR 2007, 61–65.
  25. German Criminal Procedure and International Law, JR 2007, 99–104.
  26. Is it appropriate to distinguish between error as to the elements of the offence and error as to the prohibition? *Poinikos Logos* (Athens) 6/2006, pp. 2157–2169.
  27. Compensation in cases of fraud (Section 263 of the German Criminal Code), in: Holm Putzke et al. (eds.), Criminal Law between System and Telos, Festschrift for Rolf Dietrich Herzberg on his 70th birthday (2008) pp. 763–776.
  28. Is Criminal Tax Law a Blanket Criminal Law?, in: Ulrich Sieber et al. (eds.) Criminal Law and Economic Criminal Law, Festschrift for Klaus Tiedemann on his 70th birthday (2008) pp. 991–1012.
  29. Commentary on Potsdam Regional Court, NStZ 2007, 336 (Distinction between preparation and attempt to commit theft), NStZ 2008, 156–157.
  30. “From the Life of a Tax Adviser” – Term paper on criminal law, JA 2008, 262–270 (co-authored with Lina Schneider).
  31. Attribution instead of guilt? Successive participation in murder, robbery and robbery resulting in death – review of Federal Court of Justice (BGH) NStZ 2008, 280, NStZ 2008, 548–554.
  32. The rule of law is losing its nerve. On the draft bill for a law on the prosecution of the preparation of serious acts of violence (RefE), KJ 2008, 443–451.
  33. “Overconfidence rarely pays off” – Criminal Law examination essay, JA 2009, 31–38 (together with Matthias Uhl).
  34. “A cappuccino with consequences” – Introductory criminal law exam paper, Ad Legendum 2009, 27–34 (with Andreas Götz).
  35. Fair trial instead of ‘Nemo tenetur’? The application of Article 6(1) of the ECHR in cases of cunning investigations, in: Herbert Roth (ed.), The Europeanisation of Law. Lecture series of the Faculty of Law at the University of Regensburg 2009/2010 (2010), pp. 291–308.
  36. Euthanasia: Teleological reduction of Section 216 of the German Criminal Code (StGB) instead of consent! Or: On the usefulness of legal doctrine, including a discussion of the Federal Court of Justice judgement of 25 June 2010 – 2 StR 454/09, ZIS 2011, 76–82.
  37. When is Section 35(2) of the German Criminal Code (StGB) applicable by analogy? The rules on leniency towards human frailty, in: Manfred Heinrich et al. (eds.), Criminal Law as Scientia Universalis, Festschrift for Claus Roxin on his 80th birthday on 15 May 2011 (2011), pp. 763–778.
  38. Sanctions in commercial criminal law, JA 2011, 481–486.
  39. Retribution as the purpose of punishment. Prevention and rehabilitation as obligations of criminal policy, ZIS 2011, 636–647.
  40. Schiller’s *The Criminal of Lost Honour* – a moral-philosophical parable with side-effects for criminal policy, in: Achim Geisenhanslüke and Martin Löhnig (eds.), *Infamy – Honour and Loss of Honour in Literary and Legal Discourses* (2012) pp. 55–77.
  41. Intra-Community Supply and VAT Evasion in Germany and Other EU Countries. Accompanied by a review of BGH *wistra* 2012, 144, and ECJ *wistra* 2011, 99, *wistra* 2012, 125–132 (together with W. Christian Lohse and Rainer Dürrer).
  42. ‘A pregnancy with far-reaching consequences’ – term paper on criminal law, JA 2012, 504–510 (in collaboration with Peter Schwabenbauer).
  43. What is rhetoric and what use is it to lawyers?, Stud.JUR. 2/2012, pp. 6–8.
  44. The draft bill on circumcision – Criticism and a criminal law alternative, JZ 2012, 1110–1117.
  45. Alegato a favor de un concepto "natural" de acción (A Plea for a ‘Natural’ Concept of Action), in: Alex van Weezel (ed.), Humanising and Renewing Criminal Law. Studies in memory of Enrique Cury (2013) pp. 523–546 (together with Peter Schwabenbauer).
  46. An Introduction to Criminal Law, JA 2013, 727–733.
  47. The doctrine of ‘consensual endangerment of others’ and its weaknesses – a defence of the case law, NStZ 2013, 673–680.
  48. ‘The Mountain Calls’ – Criminal Law Examination Paper, JA 2014, 103–110 (with Peter Schwabenbauer).

  49. P. J. A. Feuerbach – Scholar, Legislator and Judge, in: Arnd Koch et al. (eds.), Feuerbach’s Bavarian Criminal Code. The Birth of Liberal, Modern and Rational Criminal Law (2014), pp. 19–37.

    Book review: Hettinger Fachbuchjournal 2016, 40 ff.

  50. Coming to terms with the past through criminal law? The Ulm Einsatzgruppen trial, in: Thomas Vormbaum (ed.), Yearbook of Contemporary Legal History, Vol. 14 (for 2013) (2014), pp. 61–88 (together with Karolina Kukielka).
  51. The Absolute Becomes Relative – How Retribution as the Purpose of Punishment Can Be Sociologically Justified. At the same time, a critique of old and new theories of crime, in: Frank Neubacher and Michael Kubink (eds.), Criminology – Juvenile Criminal Law – Prison System. A commemorative volume for Michael Walter (2014), pp. 831–849.
  52. ‘Beyond Mollath’ – Criminal Commitment to Psychiatric Care, ZRP 2014, 103–106.
  53. The Ulm Einsatzgruppen Trial – an analysis of the judgement, in: Martin Löhnig et al. (eds.), War and Law. The Differentiation of Law from the First Hague Peace Conference to the Present Day (2014), pp. 123–149.
  54. Personal Liberty and Psychiatry, GA 2014, 317–332.
  55. From the Legislator’s Role to Legislation – On the Reform of Homicide Offences and Against Fischer et al., in NStZ 2014, 9, NStZ 2014, 368–376.
  56. The Myth of Offences of Conduct, in: Christian Fahl et al. (eds.), Festschrift for Werner Beulke on his 70th birthday (2015), pp. 327–338
  57. Teleological Interpretation and Objective Attribution: The Case of Section 353b of the German Criminal Code (Breach of Official Secrets), in: Jan Bockemühl et al. (eds.), Festschrift for Bernd von Heintschel-Heinegg on his 70th birthday (2015), pp. 471–486.
  58. Appeals under the Code of Criminal Procedure – general rules and complaints, ius.full – Forum for Legal Education (Swiss training journal) 2016, pp. 30–42.
  59. Too soon and too far – the current draft bill on ‘Improving the Protection of Sexual Self-Determination’, JR 2016, pp. 361–369.
  60. Human Dignity and Contempt for Humanity – On the Usefulness of an Antonym, in: Achim Geisenhanslüke (ed.), Würdelos. Conflicts of Honour from Antiquity to the Present Day, 2016, pp. 219–232.
  61. The Will of the Legislator as the Highest Goal of Interpretation, illustrated by Section 42 of the StAG, ZIS 2016, pp. 746–755, and in Thomas Rotsch (ed.), Ten Years of ZIS – Journal of International Criminal Law, 2018, pp. 83–106.
  62. Procedural objections, substantive objections and the nature of the appeal on points of law. A treatise with particular reference to Section 329 of the Code of Criminal Procedure (StPO), ZStW 128 (2016), pp. 824–847.
  63. The Alleged Intent to Kill on the Part of ‘Speeding Drivers’, NJW 2017, 1350–1353.
  64. Feminist criminal policy? ZStW 129 (2017) pp. 492–512.
  65. Life-threatening behaviour on the roads – What can be learnt from the ‘speeding’ cases for a lex ferenda on intent and negligence – Commentary on the article by Prof. Dr Jörg Eisele, KriPoZ 1/2018 (https://kripoz.de/17/01/2018/__trashed/).
  66. What should criminal penalties achieve, and what are they permitted to do? An answer using the example of Section 219a of the German Criminal Code (StGB), ZfL (Journal for the Right to Life) 2018, 26–30.
  67. Practical commentary on the Federal Court of Justice (BGH) judgement of 1 March 2018, 4 StR 399/17, NStZ 2018, 412–413 (the Berlin speeding case).
  68. The coordinate system of methodology, *sui generis* 2019, pp. 139–153, (exclusively) online at https://sui-generis.ch/99, accessed on 3 June 2019.
  69. The Idea of Retribution as a Limit to Criminal Law, JZ 2019, pp. 649–656.
  70. Foundations of an Empirically Grounded Theory of Retribution, in: Johannes Kaspar and Tonio Walter (eds.), Punishments ‘in the Name of the People’? On the legal and criminal policy relevance of empirically ascertainable public demand for punishment, 2019, pp. 49–60.
  71. A small example, big questions. The ‘ultima ratio’ principle and the principle of specificity in the extension of Section 201 of the German Criminal Code (StGB), ZRP 2020, pp. 16–20.
  72. On the Democratisation of Criminal Law, in: Jan Christoph Bublitz et al. (eds.), Law – Philosophy – Literature. Festschrift for Reinhard Merkel on his 70th Birthday, Duncker & Humblot 2020, pp. 545–564
  73. Crime in the Language of the Law, SchlHA 2020, 332–337. Also reprinted in: Britta Lange, Martin Roeber and Christoph Schmitz-Scholemann (eds.), Crime and Language. Conference at the Nordkolleg Rendsburg from 13 to 15 September 2019, De Gruyter 2012, pp. 75–88.
  74. Humanity or Darwinism? On triage rules and their justifications, GA 2020, 656–677.
  75. Reflections on German-language criminal law scholarship. Essay, ZIS 2021, 298–309.
  76. Prejudices with Far-Reaching Consequences – Introductory Criminal Law Term Paper on Grounds for Justification and Exculpation, JURA 2021, 844–855 (with Patrick Michler).
  77. Fiction and Truth – and Law. An Introduction, in: Tonio Walter and Edward Schramm (eds.), Fiction and Truth – and Law. Nomos 2021, pp. 9–28.
  78. No Obligation to Enact a Triage Act – and Hardly Any Guidelines for One [Review of the Federal Constitutional Court’s decision of 16 December 2021, 1 BvR 1541/20], NJW 2022, 363–366.
  79. Law and Form, in: Robert Matthias Erdbeer, Florian Klaeger and Klaus Stierstorfer (eds.), Fundamental Topics in Literary Studies: Form, pp. 583–604 (=Section IV. 3. 1), De Gruyter 2022.
  80. Attribution as Justice. Also a review of BGH 4 StR 19/20 (BASF case), JR 2022, 224–231.
  81. ‘Incitement to hatred with consequences’ – case study (term paper) on international criminal law, arson and euthanasia, *Jura* 2022, 970–987 (in collaboration with Johannes Makepeace and Konstantin Mey).
  82. How poor case law in international criminal law has led to poor legislation. Why the amendments to Section 5 of the German Criminal Code (StGB) did a disservice to the fight against Nazi propaganda online, NStZ 2022, 718–725.
  83. Killing on request versus suicide – an old problem resurfaces. Including a review of BGH 6 StR 68/21, JR 2022, 621–628.
  84. Hit-and-run as a newly defined property offence, ZRP 2023, 171–174.
  85. The Oury Jalloh case: How will the European Court of Human Rights rule? NStZ 2023, 513–518 (co-authored with Clara Retczak).
  86. State informants caught between criminal procedure law and police law, NJW 2024, pp. 998–1002.
  87. Provocation of an offence as a preventive tool, ZflStw 2024, 184–194.
  88. The feminist public prosecutor (review essay on the Federal Court of Justice (BGH) decision of 18 January 2024, 5 StR 473/23), JZ 2024, 1043–1048.
  89. True and False Accusations in Sexual Offences Law. With Concluding Remarks on Hoven/Rostalski, JZ 2024, 1084, in: JZ 2025, 118–123.
  90. ‘Femicide’ and criminal policy, ZfIStw 2025, 696–706.

III. Commentaries and handbook contributions

  1. Commentary on Section 13 of the German Criminal Code (StGB) in the 12th edition of the Leipzig Commentary, Volume 1, edited by Klaus Tiedemann et al. (2007), pp. 703–814; 13th edition, edited by Gabriele Cirener et al. (2020), pp. 771–884; 14th edition, edited by Gabriele Cirener et al. (2026), pp. 748–859.
    Review: Kühl GA 2009, 69 (70).
  2. Commentary on Sections 257–260a, 262 of the German Criminal Code (StGB) in the 12th edition of the Leipzig Commentary, Volume 8, edited by Klaus Tiedemann et al. (2010), pp. 479–657, 686; 13th edition, edited by Gabriele Cirener et al. (2022), pp. 509–673, 703. Review: Kühl GA 2011, 426 (432).
  3. § 46. Errors at the level of the elements of the offence, in: Eric Hilgendorf, Hans Kudlich and Brian Valerius (eds.), Handbook of Criminal Law, Volume 2: General Part of Criminal Law I, C. F. Müller 2020, pp. 851–925.

IV. Editorial roles

  1. Co-editor of the Festschrift for Klaus Tiedemann (2008) (Heymanns) (together with Ulrich Sieber, Urs Kindhäuser, Gerhard Dannecker and Joachim Vogel).
  2. Co-editor of the commemorative volume for Bernd von Heintschel-Heinegg on his 70th birthday (2015) (C. H. Beck) (together with Jan Bockemühl, Katrin Gierhake and Henning Ernst Müller). Book review: Tillmann Bartsch, GA 2018, 111–114.
  3. Editor of the conference proceedings *Die Mündlichkeit im Rechtsleben* for the 4th interdisciplinary and international conference of the Language and Law Working Group at the University of Regensburg on 26 and 27 April 2012 (2016) (Mohr Siebeck).
  4. Co-editor (together with Johannes Kaspar) of the conference proceedings “Punishments ‘in the Name of the People’? On the legal and criminological relevance of empirically ascertainable demands for punishment amongst the population” (2019) (Nomos). Book review: Kett-Straub, GA 2020, 508–510.

  5. Co-editor of the anthology “Poetry and Truth – and Law”: proceedings of the symposium of the same name organised by the Working Group

    Language and Law

    at the University of Regensburg on 26 and 27 April 2018 (2021) (Nomos) (together with Edward Schramm).

V. Newspaper and media articles

  1. “Clashes with Human Dignity”, in: Frankfurter Rundschau, 9 February 2008, p. 23 (article on the debate surrounding the appointment of Horst Dreier as a judge at the Federal Constitutional Court).
  2. “Now it’s getting serious”, in: Süddeutsche Zeitung, 22 April 2008, p. 14 (article on the debate surrounding new security laws to combat Islamist terrorism).
  3. “Hardly provable” – interview on the criminal proceedings against the Society of St Pius X member Richard Williamson in DER SPIEGEL, 16 November 2009 (No. 47). p. 19.
  4. “The Bundeswehr is treading on uncertain ground”, in: Mittelbayerische Zeitung, 3 February 2010, p. 4 (article on the observance of human rights during the Bundeswehr’s overseas missions).
  5. “One crook swindles another” – Interview on SPIEGEL online on 10 February 2010 regarding the purchase of a Swiss CD containing bank details of alleged tax evaders (http://www.spiegel.de/wirtschaft/soziales/0,1518,677033,00.html).
  6. “A good buy”, in: Frankfurter Rundschau, 16 February 2010, p. 5 (article on the purchase of the Swiss CD containing bank details of suspected tax evaders).
  7. “The state’s interest takes precedence”, in: Mittelbayerische Zeitung, 5 March 2010, p. 4 (article on the purchase of the Swiss CD containing bank details of suspected tax evaders).
  8. “Forgetting the most important thing”, in: Mittelbayerische Zeitung, 17 December 2010, p. 4 (Outside View – article on preventive detention).
  9. “Beyond Revenge” – Why society and the judiciary need retribution, in: Die ZEIT, 15 December 2011, p. 15.
  10. “The Untouchable Sex” – Genital mutilation is now a criminal offence in Germany – but only when women are the victims, in: Die ZEIT, 4 July 2013, p. 13.
  11. “Too Soon, Too Far” – On the reform of sexual offences legislation, in: ZEIT Online, 10 February 2016 (http://www.zeit.de/gesellschaft/2016-02/sexualstrafrecht-koeln-heiko-maas-reform-gesetzgebung).
  12. “Vote again!” – On the Brexit referendum, in: ZEIT Online, 3 July 2016 (http://www.zeit.de/politik/ausland/2016-06/brexit-referendum-demokratie-eu-wiederholung).
  13. Article in favour of the question “Does the promotion of women in its current form harm academia?”, in: Forschung & Lehre 9/2016, pp. 782–783.
  14. Speeding drivers are criminals, but not murderers (article on the ‘speeding driver verdict’ of the Berlin Regional Court of 27 February 2017), in: ZEIT ONLINE, 28 February 2017, at http://www.zeit.de/gesellschaft/2017-02/illegale-autorennen-raser-gesetz-mord, last accessed on 1 March 2017.
  15. The Basic Law is not homophobic (article on the constitutionality of ‘marriage for all’ following the Bundestag’s decision to allow it) on SPIEGEL ONLINE, 4 July 2017, www.spiegel.de/politik/deutschland/ehe-fuer-alle-das-grundgesetz-ist-nicht-homophob-gastbeitrag-a-1155700.html, last accessed on 4 July 2017.
  16. Hey, MeToo – I’ve got a question… (article on the #MeToo debate and the decriminalisation of indecent exposure), in Einspruch, the magazine of the Frankfurter Allgemeine, http://einspruch.faz.net/einspruch-magazin/2018-01-17/a288474a380dfc1ec0b43bf78c4c06b2/?GEPC=s5.
  17. Completely out of control (commentary on the Munich NSU trial), Mittelbayerische Zeitung, 21–22 July 2018, p. 4.
  18. Who will put a stop to this madness? (Article on ‘Brexit’), published exclusively by Einspruch in the Frankfurter Allgemeine (online), http://einspruch.faz.net/recht-des-tages/2018-12-13/7baefd0e7905852e52e82e0474114dc7?GEPC=s5, accessed on 13 December 2018.
  19. Corporate criminal liability is essential. The diesel scandal shows why we need corporate criminal law, in *Einspruch*, the magazine of the *Frankfurter Allgemeine* (online), https://einspruch.faz.net/einspruch-magazin/2019-02-27/f88d04ec38410fe9a8a8391e8f085ffc?GEPC=s5, accessed on 27 February 2019.
  20. Evil and Us (An article on crime trends and perceptions), in: ZEIT ONLINE, 28 April 2019, at https://www.zeit.de/gesellschaft/2019-04/kriminalstatistik-kriminalitaet-gewalt-deutschland-gefahren-polizei-wahrnehmung, accessed on 28 April 2019.
  21. Nothing but Retribution (An article on retributive theory as a theory of crime), in: Legal Tribune Online (LTO) dated 7 September 2019 at www.lto.de/recht/hintergruende/h/wozu-strafe-straftheorien-vergeltung-praevention-fall-luegde/, accessed on 7 September 2019.
  22. On the Worthlessness of Men, Schweizer Monat, issue 12/2019. pp. 28–32.
  23. Assange and the parallels with the Kachelmann case, in ‘Einspruch’ – exclusive to the Frankfurter Allgemeine (online), https://www.faz.net/einspruch/warum-ermittelte-schweden-zehn-jahre-lang-ergebnislos-gegen-assange-16663026.html?GEPC=s3&premium=0xb1fd767311bfac0c127476e417c6093e, published and accessed on 4 March 2020.
  24. Authors as accomplices to character assassination [on the false accusations against Woody Allen], in ‘Einspruch’ – an exclusive feature of the Frankfurter Allgemeine (online), https://deref-web-02.de/mail/client/3-hhg2u8Iwk/dereferrer/?redirectUrl=https%3A%2F%2Fwww.faz.net%2F-irg-9xcjo%3FGEPC%3Ds5, published and accessed on 10 March 2020.
  25. Let the dice decide! (Article on the triage problem during the coronavirus crisis), in: ZEIT ONLINE, 2 April 2020, at https://www.zeit.de/gesellschaft/2020-04/corona-krise-aerzte-krankenhaeuser-ethik-behandlungen-medizinische-versorgung, published and accessed on 2 April 2020.
  26. The dark side of #MeToo [on false accusations in sexual offences law], *Schweizer Monat*, July/August 2020 issue, pp. 20–23.
  27. The Legislator Hasn’t Heard the Shot [on so-called textualism as a maxim of statutory interpretation], in: *Frankfurter Allgemeine Zeitung*, 7 October 2020, p. N3.
  28. How gender equality disregards the Basic Law and shortens women’s lives [on women’s quotas, their effects and the reasons behind them], in: WeLT+ of 17 October 2020 at www.welt.de/kultur/plus217963854/Wie-Gleichstellung-das-Grundgesetz-verbiegt-und-Frauenleben-verkuerzt.html.
  29. Unconstitutional [on so-called gender equality quotas], in: Süddeutsche Zeitung, 5–6 December 2020, p. 6.
  30. Enduring contradiction. Interview on the Network for Academic Freedom in the MZ, 15 February 2021, p. 19.
  31. Only chance is fair! In: DIE ZEIT, 2 December 2021, p. 15 (On triage in intensive care units: the criterion of chance and judicial review)
  32. Triage by chance – not solely based on chances of survival, in *Einspruch*, an exclusive featureof the *Frankfurter Allgemeine* (online), www.faz.net/einspruch/einspruch-exklusiv-triage-per-zufall-nicht-allein-nach-ueberlebenschance-17882976.html, published and accessed on 16 March 2022 (together with Martin Daumer).
  33. Killing remains killing (commentary on BGH 6 StR 68/21 – the insulin case), in: Legal Tribune Online (LTO) dated 19 August 2022, at https://www.lto.de/recht/hintergruende/h/bgh-6-str-68-21-insulin-wife-killing-on-request-suicide-gisela-gashahn/.
  34. Who is allowed to survive? (Debate on the draft of a new Section 5c of the IfSG on triage with Tanja Hörnle), in: DIE ZEIT, 20 October 2022, p. 11.
  35. Not all femicides are murders, in: ZEIT ONLINE, 20 March 2023, at https://www.zeit.de/gesellschaft/2023-03/femizid-gewalt-frauen-mord-toetungsdelikt.
  36. The tightening of terrorism legislation is unconstitutional (on the amendment to Section 89a of the German Criminal Code), in ‘Einspruch’ exclusively in the Frankfurter Allgemeine (online), https://www.faz.net/einspruch/die-verschaerfung-des-terrorismusstrafrechts-ist-verfassungswidrig-19506675.html, published on 9 February 2024.
  37. Tim has a harder time than Anna (article on the differences in life chances between men and women), in: ZEIT ONLINE, 14 July 2024, at https://www.zeit.de/gesellschaft/2024-07/patriarchat-frauen-unterstuetzung-vernachlaessigung-maenner.

  38. From Covid to compulsory military service – when is the draw fair? Selection decisions in stable situations and in borderline cases, Frankfurter Allgemeine Zeitung, 5 February 2026, p. 7 (also available online).

VI. Book reviews and miscellaneous

  1. Draft Directive on the Linguistic Formulation of Texts under European Law (Satire) NJW 2004, 582–584 (abridged reprint in VDS-Sprachnachrichten No. 31 [July 2006], p. 13 and in the BDÜ’s journal “Sprachrohr” of March 2007, p. 22).
  2. Review of Benno Heussen’s *Time Management for Lawyers* (C. H. Beck 2004), in: *Anwaltswoche* 19/2006, p. 15.
  3. “Punishment without guilt?” Review of Reinhard Merkel’s “Free Will and Legal Guilt” (Nomos 2008), in: *DIE ZEIT*, 4 September 2008, p. 58.
  4. Translation of the Corpus Juris on criminal law provisions for the protection of the financial interests of the European Union (Florence version) from French into German, download (commissioned by the Association for European Criminal Law e. V. and the European Commission).
  5. National Report for the XVIIIth International Congress of Penal Law (IAPL/AIDP), Section III: Special Procedural Measures and the Protection of Human Rights (Germany’s national report for the XVIIIth International Congress of Penal Law of the AIDP, Section III: Special Procedural Measures and the Protection of Human Rights), Revue Internationale de Droit Pénal (RIDP), Issue 1/2009 on the accompanying CD, pp. 161–178, also published in the Revue électronique de l’AIDP (ReAIDP/e-RIAPL) 2009.
  6. Fairness from a Legal Perspective, in: Lautschrift 1/2009, 18–21.
  7. On the Personality of the Legal Scholar – marking the 60th anniversary of Gustav Radbruch’s death, JA editorial in issue 12/2009 (p. I).
  8. Contemporary Interactions between General Language and Legal Language. Introduction, in: Roswitha Fischer (ed.), Language and Law in Major European Languages. Legal Terminology: The Tension between Technical Language and General Comprehensibility (Papers from the interdisciplinary symposium held on 23–24 April 2009 at the University of Regensburg) (2010), pp. 133–137.
  9. Review of Putzke, Holm, and Scheinfeld, Jörg, Criminal Procedure Law (2nd edition 2009), in: ZIS 2010, 457–458.
  10. Conference report on the XVIIIth International Congress on Criminal Law of the Association Internationale de Droit Pénal (AIDP), Proceedings of Section III: Criminal Procedure – Special Procedural Measures and the Protection of Human Rights, ZStW 122 (2010) pp. 462–466.
  11. The (Interim) Solution Must Be Incorporated into Criminal Law – On the Draft Circumcision Act, (Opinion) NJW-aktuell 45/2012, p. 12.
  12. When the state buys evidence, the rule is: caveat venditor!, (Opinion) NJW-aktuell 43/2013, p. 14.
  13. Obituary for Michael Walter, JZ 2014, 622–623.
  14. Foreword to the monograph “The Decision to Commit an Offence by Accomplices (Section 25(2) of the German Criminal Code)” by Kristina Steckermeier (2015), pp. 9–14.
  15. One case, three closing speeches – and three legal cultures, in: Tonio Walter (ed.) The Oral Nature of Legal Life (2016), pp. 131–134.
  16. Michael Walter as a Father and a Person, in: Association for the Promotion of Legal Studies (ed.), Fakultätsspiegel [of the Faculty of Law, University of Cologne]. Summer Term 2015, pp. 66–71 (printed version of a lecture delivered at the academic memorial service for Michael Walter).
  17. Conference report on the DFG Villa Vigoni discussion ‘Towards a European Methodology? Legal Methodology in Comparative Law’, JZ 2016, 892–895 (together with Jakob Fortunat Stagl).
  18. Foreword to the monograph *Are There ‘Offences of Conduct’?* by Niki Hölzel (2016), pp. 5–6.
  19. Foreword to the monograph *Retribution as the Purpose of Punishment* by Tobias R. Andrissek (2017), pp. V–VIII.
  20. Response to the review by Feijoo Sánchez, Bernardo, of *Punishment and Retribution – Rehabilitation and the Limits of a Principle*, Baden-Baden, Nomos, 2016 (InDret Penal 3/2017), in: InDret Penal 4/2017, pp. 22–26, http://www.indret.com/pdf/1334.pdf, accessed on 8 November 2017.
  21. Foreword to the monograph *Hans Welzel and National Socialism* by Heike Stopp (2018), pp. V–VI.
  22. Interview with Britta Lange, in: ibid., Martin Roeber and Christoph Schmitz-Scholemann (eds.), *Crossing Boundaries: Law, Norms, Literature and Music*. Conference at the Nordkolleg Rendsburg from 8 to 10 September 2017, pp. 67–76.
  23. Not all forms of intent are equal. Interview on ‘speeding’ cases and the legal regulation of criminal liability based on intent in NJW-aktuell 49/2019, pp. 12–13.
  24. Foreword to the monograph *The Applicability of German Criminal Law to Offences Committed via the Internet* by Konstantin Mey (2020), pp. 7–12.
  25. Congratulations to Ekkehard Schumann on his 90th birthday, JZ 2022, 27–28 (together with Michael Heese).

  26. Re-read: Ernst Beling – *The Idea of Retribution and its Significance for Criminal Law* (1908), *JZ* 2023, pp. 196–198.

  27. Obituary for Friedrich-Christian Schroeder, JZ 2024, 509–510.

PhD students

Ongoing proceedings

  • Alexander Klein: Should the acquisition and possession of cannabis for personal consumption remain a criminal offence? An empirical study on perceptions of the severity of the offence amongst the general public
  • Jochen Metz: Restrictions on appeals in criminal cases – conditions, limits and consequences
  • Patrick Michler: Does the use of undercover agentsbreach Article 33(4) of the Basic Law? An analysis de lege lata and de lege ferenda
  • Philip Moore: The diesel scandal as an environmental offence (Section 325 of the German Criminal Code)
  • Damien Nippen: The significance of the defence counsel’s closing speech for the judge’s decision
  • Fabian Walser: Compensation precluding damages in cases of fraud

Concluded proceedings

  • Tobias Andrissek: Retribution as a purpose of punishment – an empirical-sociological justification and implications for criminal policy
  • Heike Bayer: Hans Welzel and National Socialism
  • Anna Berger: ‘In dubio pro reo’ in the case of rules requiring a judgement based on probability
  • Rainer Dürrer: The allocation of the burden of proof and estimation in criminal tax law
  • Lukas Cerny: A Brief History of Punishment. A Historical-Critical Contribution to the Theory of Crime
  • Niki Hölzel: Are there such things as ‘offences of commission’?
  • Steffen Kramer: Share price stabilisation measures – between criminal market manipulation and permissible share price stabilisation. Is there scope for permissible share price stabilisation beyond the ‘safe harbour’ provisions?
  • Florian Kreis: The classification of the fundamental freedoms of the European Community within the criminal law system
  • Fritz Kroll: The thresholds for criminal procedural searches under scrutiny. On the disproportion between searches and other criminal procedural investigative measures
  • Christoph Lindheim: The influence of IFRS on German criminal accounting law. Historical development, constitutional and European legal limits, and issues relating to error
  • Tobias Mahlstedt: Covertquestioning of the accused on behalf of the police
  • Johannes Makepeace: The polygraph as exculpatory evidence in German criminal proceedings
  • Milosz Matuschek: Criminal law relating to memory. A re-justification of the ban on Holocaust denial on the basis of comparative law and social philosophy
  • Konstantin Mey: The Applicability of German Criminal Law to Offences Committed via the Internet
  • Bernhard Paa: Law enforcement authorities’ access to private data in the fight against serious crime
  • Clara Retczak: The discontinuation of criminal proceedings due to a procedural error and the victim’s right to the prosecution of the perpetrator
  • Christian Rottmeier: The core sphere of private life in criminal law and criminal procedure law
  • Jörg Schreiber: Harmonisation of criminal law through European framework decisions
  • Peter Schwabenbauer: The principle of ‘in dubio pro reo’ in criminal procedure law
  • Wolfgang Staudinger: What are the consequences of the presumption of innocence in criminal proceedings?
  • Kristina Steckermeier: The decision to commit the offence by accomplices (Section 25(2) of the German Criminal Code). Prolonged control over the offence as a ground for attribution – an empirically based study

Postdoctoral researchers

There are currently no postdoctoral researchers at the Chair.

PD Dr Konstantina Papathanasiou was a postdoctoral researcher at the Chair: click here to visit her website. (external link, opens in a new window)

Law and Literature

1. What does ‘Law and Literature’ mean, and where does the term come from?

‘Law and Literature’ refers to a – initially – humanities-based movement that emerged in the early 1970s as a counter-movement to the economisation of law (Law and Economics, the economic analysis of law).[For further details, see Armbrüster, Christian, ‘The “Law and Literature” Movement in the USA – a challenge to “Law and Economics”?’ JR 1991, 61 ff.; Schramm, Law and Literature, JA 2007, 581 (ibid.) with further references.] Whilst the translation ‘Recht und Literatur’ is literally accurate, it is too narrow in terms of content. For it is by no means solely a matter of reading literary works through the eyes of a lawyer and then discussing them with a literary scholar or linguist (although this is also encompassed by ‘Law and Literature’). Rather, the initiators of the Law and Literature movement considered the economic approach to be wholly inadequate for understanding how norms arise and how law operates in society (descriptive analysis) and where guidance might be found for developing the law and its application (normative/political analysis). [See, in this regard, from recent German legal scholarship: Stürner, Rolf, *Markt und Wettbewerb über alles? Gesellschaft und Recht im Fokus neoliberaler Marktideologie* (2007).] They therefore sought to contrast the economic approach with alternatives. Initially, the focus was on literature and philosophy, notably Derrida’s deconstructionism, and also on sociology. Even for these disciplines, ‘literature’ was thus a dubious umbrella term and, at best, applicable in the sense of the French term ‘lettres’ (and indeed, there are works in France on ‘lois et lettres’; although even there the literal translation is more common: ‘droit et littérature’).

Today, however, the term ‘Law and Literature’ can encompass virtually anything that seeks to shed light on, explain or guide the law. For all those who devote themselves to this field, this represents, first and foremost, a great opportunity, as it opens up almost infinite possibilities for combination and collaboration between philosophy, linguistics, literary studies, cultural studies, the social sciences, theology and law, right through to psychology and (neuro)biology; see 2 b. below. At the same time, however, it presents a challenge and raises the question of how the research interests of those working in the aforementioned disciplines can be meaningfully combined into joint research and teaching projects.

In the United States, around one hundred law schools offer law-and-literature courses, including, of course, the big names such as Harvard, Yale, Stanford and Princeton. Several tens of thousands of relevant publications can be accessed via www.sagepub.com (external link, opens in a new window). In Germany, whilst there has been growing interest among students to date, there are hardly any courses on offer at universities.

2. Topics and Questions

Law and Literature is usually divided into three subject areas:

a) ‘Law in literature’ – law and literature in the narrower sense

Lawyers ask, poets answer – this is how Eberhard Schmidhäuser essentially described his ‘journey through world literature from Sophocles to Dürrenmatt’, which was published under the title ‘Crime and Punishment’ (the correct translation of Dostoevsky’s title, which we know as ‘Guilt and Atonement’).[Schmidhäuser, Eberhard, Crime and Punishment. A Journey through World Literature from Sophocles to Dürrenmatt (2nd edition 1996).] The aim of this approach is to tap into the wealth of experience reflected in literature and to make lawyers receptive to ethical, social and political issues. In addition to literature, theatre and film are also considered. Art is taken seriously as a crystallisation and a barometer of social and historical developments. And time and again, one finds works that are ahead of their time in terms of insight compared to the relevant academic disciplines. For instance, in *Andorra*, Max Frisch, through the character of the Andorran Jew, already articulates the theory of labelling, whilst in *The Visit*, Dürrenmatt illustrates neutralisation techniques through which people justify their criminal behaviour in the face of their own moral standards, as is increasingly the case in dictatorships (the relevant academic discipline in each instance is criminology). – A further sub-theme of ‘Law in literature’ could be the legal limits of literature, that is, everything relating to the freedom of art enshrined in Article 5 of the Basic Law and its constraints.

b) ‘Law as literature’ – a vast field!

aa) The common variation ‘Law as literature’ is actually even less clear than ‘Law and Literature’ when one considers what is meant. Admittedly, it also concerns the literary quality of the law – that is, the style of legal texts, ranging from statutes and judgements to legal ‘literature’. And beyond style in the narrower sense, such texts can, of course, be analysed in terms of all linguistic parameters (technical terminology, frequency of foreign words, rhetorical devices…). In Regensburg, the interdisciplinary working group on Language and Law (www-spracheundrecht.uni-regensburg.de (external link, opens in a new window)) has been doing this for several years, organising well-attended symposia and awarding a nationally recognised prize.

bb) But ‘Law as literature’ is a significantly broader field still. It encompasses all subjects and disciplines that have something to say about how law comes into being or ought to come into being, and how it operates or ought to operate: philosophy, ethics, sociology, theology, history and political science. For example, Jhering’s concept of ‘jurisprudence of interests’ provides a point of reference for the social sciences by tracing the outcomes of legal methodology – and thus the methodology itself – back to the interests of social groups or of society as a whole. Philosophy and (moral) theology can address social utopias just as much as the ‘law with which we are born’, natural law, or – to put it in less legal terms – the normative premises of law. Gender, race or queer studies are relevant and can – by way of example – be extended to family law or compared with it: when and to what extent do legal regulations governing the relationships between men and women, parents and children, follow social developments? Or moral imperatives, or both? (On the gender debate, see also cc and c below.) Further examples of topics can be found in the programme of the symposium ‘Political Thought and Literary Form’, organised by the Forum Mittelalter at the University of Regensburg in 2010.[Excerpt: Prof. Dr Klaus Köhle, Political Science (University of Regensburg): Women’s rights avant la lettre: The Querelle literature (Christine de Pizan, Vittoria Colonna, Gaspara Stampa, Moderata Fonte); Prof. Dr Kari Palonen, Political Philosophy (University of Jyväskylä): From *Foundations of Modern Political Thought* to *Reason and Rhetoric in the Philosophy of Hobbes*: Quentin Skinner and his research programme; Prof. Dr Johannes Bartuschat, Roman. Literary Studies (University of Zurich): Ethics, Rhetoric and Politics in Brunetto Latini; Prof. Dr Peter Kuon, Roman. Literary Studies (University of Salzburg): On the Literary Nature of Renaissance Political Utopias.]

cc) Political and social sciences may also examine the genesis of laws: what role do lobbies play, and what role do the media play? The impact of the media can, of course, also be examined psychologically from the perspective of individuals: do depictions of violence, for example, make people violent? From a psychological perspective, one can also examine how judicial decisions are reached. A series of high-profile miscarriages of justice in recent times, involving alleged sexual abuse of women and children, provide striking examples.[See Rückert, Sabine, Injustice in the Name of the People. A Miscarriage of Justice and its Consequences (2007).] The link to the social sciences is obvious: do these proceedings form part of the ‘dark side of feminism’ (Sabine Rückert)? – A classic point of intersection between history and law lies in legal history. As an example of a current research project, mention may be made of the project by Martin Löhnig, Regensburg Professor of Civil Law and Legal History, to examine Bavarian judicial records to determine to what extent the general view actually holds true that, during the Weimar Republic, the judiciary ‘turned a blind eye’ , whilst prosecuting ‘left-wing’ crime all the more harshly and arbitrarily (a view that also prevails in literary fiction)[Supported by figures in Feuchtwanger, Lion, Erfolg. Three Years’ History of a Province [i.e. Bavaria, T. W.] (1930). See also Ottwalt, Ernst, *Denn sie wissen, was sie tun* (1931).]. An example employing a similar methodological approach is Regina Schulte’s habilitation thesis, which examined court and administrative records from Upper Bavaria between 1848 and 1910 with regard to the offences of arson, infanticide and poaching.[Published as a book under Schulte, Regina, *Das Dorf im Verhör* (1989).] They offer a mirror of social conditions within the justice system, though one that can only be understood with historical and psychological insight. It is only with the aid of such knowledge that one can recognise, for instance, the expressive significance of poaching as a form of rebellion against the authorities – one that was, in village society, entirely ‘socially acceptable’: crime as language and symbol. And it is only with this knowledge that one learns of the plight of the farmhands and maidservants – who were effectively unable to marry and were employed seasonally here and there – for whom an out-of-wedlock pregnancy, in an era without modern contraception, was the inevitable consequence of sexual activity – and for the maids, synonymous with the impossibility of continuing to work and surviving economically: crime as a consequence of living conditions.

dd) Recently, however, the natural sciences have also, quite rightly, become involved in the debate concerning the conditions of the origin and existence of the law. The most prominent of these are neurobiology and brain research, which are increasingly raising the question of whether human will is in fact free – as our legal system presupposes in all areas. This discussion has long been conducted on an interdisciplinary basis at the interface between the natural sciences, philosophy and jurisprudence. Moreover, it is conducted in the public sphere and thus also serves as a good example of dialogue between science and (civil) society. And it is not limited to the question of free will. A conceivable extension of this debate was the subject of the most recent conference of criminal law lecturers, namely the question of the medical and biological possibilities and the legal limits of so-called ‘brain doping’ and comparable interventions (pharmacological ‘enhancement’ of the brain’s capabilities).[See Merkel, Reinhard, ‘Novel Interventions in the Brain: Enhancement of the Mental Condicio Humana and Criminal Law Limits’, Zeitschrift für die gesamte Strafrechtswissenschaft (ZStW), Vol. 121 (2009), pp. 919 ff.]

ee) The application of game theory – which cannot be confined to a single discipline – can also yield insights relevant to legal scholarship. For instance, experimental studies, particularly those based on evolutionary game theory, have shown that people will punish uncooperative and selfish behaviour in others at their own expense, even if they are guaranteed never to encounter the opponent in question again and cannot otherwise benefit, either directly or indirectly, from any change in behaviour. For legal sanctions, particularly criminal penalties, this ‘thirst for justice’ – which appears to be deeply rooted in human nature – may provide a more convincing justification than the standard, purely theoretical concepts put forward by legal scholars. For if people have an innate need to sanction grossly unfair behaviour regardless of utilitarian considerations, a stable society can only be one that satisfies this need.

ff) This leads us to the world of all legal realities, which can be explored under the umbrella of ‘Law as literature’ – that is, to the real social (institutional and so on) prerequisites of the law and its equally real effects. In the field of criminal law, this area is covered by criminology. Criminology has always had close links with the social sciences, psychology and medicine.

gg) Finally, ‘Law as Literature’ can also be understood to encompass all the methods and practical techniques used to discover the law or – depending on one’s perspective – to secure it. From a legal perspective, this encompasses – alongside classical methodology – everything that the new Section 5a of the German Judges Act (DRiG) refers to as ‘key qualifications’: conversation and negotiation management, mediation and rhetoric.

c) ‘Lawyers as writers’ – poet-lawyers and those who might have liked to become so (‘literary-minded lawyers’)

There have been, and still are, many writers and poets in Germany and internationally who have a legal education and often even practise law; to give a few specific examples (in alphabetical order): Eichendorff, Flaubert, Goethe, Grisham, Hebel, Heine, E. T. A. Hoffmann, Kafka, Alexander Kluge, Petrarch, Proust, Rosendorfer, Schlink, Walter Scott, Storm, Thoma, Tucholsky, Juli Zeh … Furthermore, there have been and continue to be numerous lawyers who have engaged with ‘law in literature’ and written texts that can no longer be described as purely legal; for example (in alphabetical order): Diederichsen, P. J. A. Feuerbach, E. Fechner, Großfeld, Häberle, Josef Kohler, Limbach, Lüderssen, Müller-Dietz, Radbruch, Roxin, Schmidhäuser, P. Schneider, Stolleis, Vitzthum, M. Walter. For all of them, it is possible to examine the influence one aspect has had on the other: their legal training or practice on their writing, and their non-legal knowledge and work on their profession and their legal scholarship. Such biographical and works-based studies also offer the opportunity to incorporate research into contemporary history, thereby linking literary studies, law and history. The fact that the lists of names above contain no women apart from Jutta Limbach and Juli Zeh may also provide an incentive to adopt a gender-specific perspective.

Bibliography

Projects

Project outline: Human dignity

1. Questions

‘Lawyers ask, poets answer’ – this is how Eberhard Schmidhäuser outlined his approach in the foreword to the book *Crime and Punishment*, in which he examines texts from world literature on topics that also concern lawyers. The project *Human Dignity* aims to take a similar approach, but is, on the one hand, broader in scope and, on the other, more narrowly focused. More narrowly focused, as it deals with a single theme: human dignity, which the Basic Law places at the very top of the German legal order. Broader, because the aim is not only to examine literary works but also other media (in the broader sense), ranging from the visual arts through film and the media in the narrower sense to computer games and their implicit messages to users.
Furthermore, the legal scholars are not only to pose questions, but also to provide answers themselves. For what constitutes human dignity and what it demands is a matter of controversy in legal scholarship and legal practice. And this is despite the fact that the concept of human dignity – because it is the supreme value of the legal system – repeatedly plays a decisive role; whether in the question of what constitutes a minimum standard of living compatible with human dignity, in the question of whether one may prohibit behaviour that is degrading to oneself or others (for example, in ‘peep shows’ and ‘all-you-can-go brothels’), whether an aeroplane hijacked by terrorists may be shot down, whether suspected criminals may be threatened with or even subjected to pain in order to obtain information to save the victim – and many other issues besides. Of particular interest are the rulings of the Federal Constitutional Court. However, other courts and eminent legal scholars have also weighed in, and since the concept of human dignity is of central importance in other countries as well as in international legal frameworks¹, this presents an opportunity for comparative legal studies.
In summary, therefore, the aim is to examine law and culture in relation to the topic of ‘human dignity’. Specifically, the following topics will be considered:
What constitutes human dignity and what infringes upon it?
To whom does human dignity apply – and in what form?
What is the rationale for attributing a special dignity to human beings?


2. What constitutes human dignity and what infringes upon it?

The standard responses from legal scholars naturally focus on the negative side of the coin, namely the ‘infringement’ of human dignity (Article 1(1) of the Basic Law). The Federal Constitutional Court’s classic ‘object’ formula – building on the work of Günter Dürig – prohibits the ‘concrete human being from being degraded to an object, to a mere means, or to a dispensable quantity’2. This draws on Kant’s prohibition of instrumentalisation: ‘for no human being may be treated by any other human being […] merely as a means, but must at all times be treated simultaneously as an end in themselves, and therein lies their dignity’³. However, it is recognised that this formula (whilst it may sound good, it is) of little practical use, and ‘there is no generally accepted, dogmatically precise legal concept of human dignity […]’⁴. Rather, it serves to help us categorise cases and reach agreement—in a decision-based rather than deductive manner—as to whether a violation of human dignity has occurred or not. It would be worth knowing, on the one hand, whether, alongside such a definition by negation, it is also possible to define human dignity in positive terms, or at least to describe it. Secondly, one might ask whether the case categories formed by legal scholars find their counterparts in the cultural expressions of society. In both instances, one’s gaze may also extend beyond Germany’s borders.
Insofar as one reads legal texts on these issues – such as judgements of the Federal Constitutional Court – their style and line of reasoning (patterns of argumentation) present themselves as further subjects for investigation. For whilst legal scholars claim to argue in a strictly objective, logical and factual manner—indeed, not even to argue, but to derive their conclusions, much like scientists, more geometrico from given premises, primarily from laws— However, there are clear indications – and indeed initial studies – that this is not quite the case, and that legal reasoning is far more rhetorical and literary than its authors realise; particularly when it comes to such fundamental questions as those concerning human dignity and the legal substance of this concept.5 Within the Anglo-American ‘Law and Literature’ movement, such considerations are grouped under the heading ‘law as literature’.

3. To whom does human dignity apply – and in what form?

The question sounds trite, even dangerous, as it is clear that all human beings possess human dignity, and such a question might be intended to cast doubt on this. Yet that is not the point. Rather, it concerns, on the one hand, the temporal dimension of human dignity: From when and until when does it apply to human life – even before birth? And after death? As is well known, pre-natal human dignity plays an important role in bioethics and in legal issues surrounding the protection of embryos and genetic engineering. However, this field is already being explored extensively by many. Nevertheless, one might once again ask the fundamental question of whether the protection of human life is always and entirely synonymous with the protection of human dignity (as in the somewhat provocative headline ‘How much dignity does a test tube have?’, which I once used⁶).
Secondly, one might consider whether the dignity accorded to human beings is in fact, qualitatively speaking, something specific to the human species – or whether, on a quantitative scale, it must also be attributed to other living beings. From a religious, or at least a Christian, perspective, this is supported by the fact that these living beings are also ‘creatures of God’. From a societal perspective, numerous alliances and initiatives for animal welfare and nature conservation support this view. From a legal perspective, one might consider the Animal Welfare Act (which further distinguishes between warm-blooded animals, other vertebrates and other creatures).
Thirdly, the question arises as to whether there is only one form of human dignity that transcends gender – or whether it is subdivided into a specific dignity of women and a dignity of men; whether one assumes a uniform concept at its core and identifies gender-specific characteristics (only) on the periphery, or whether one defines the concepts differently from the outset (which does not seem out of the question from a radically feminist perspective). Social life provides certain indications of a gender-based distinction; for example, when – to take a very loose example – it is accepted without complaint that female cleaning staff in swimming pools, public toilets and gyms also work in men’s toilets and men’s changing rooms, even whilst they are in use, whereas male cleaning staff are categorically denied access to ladies’ changing rooms and toilets during opening hours. (Architecturally, too, only ladies’ toilets provide privacy for each user from other users.) Another indication is the work of the German Advertising Council, which monitors compliance with minimum ethical standards in commercial advertising. Although it has already halted campaigns due to sexist or degrading portrayals of women, it has never done so because of degrading portrayals of men; even though there may have been – and may still be – the odd campaign that depicts violence by women against men or sexist portrayals of men as something positive and humorous. The work of this council at the very least touches upon the legal sphere, as the Advertising Council also monitors compliance with legal regulations and, in all cases, performs a normative function by defining and enforcing rules of conduct.
On the other hand, a particularly blatant form of attack on human dignity worldwide is directed predominantly against women, namely attacks on sexual self-determination and privacy: sexual coercion, rape, forced prostitution, forced marriages, human trafficking for these purposes, and the pornographic display of female bodies. Resistance to this can be observed at all levels, from the arts through politics to the legal sphere. This resistance is, at any rate, formulated in a distinctly gender-specific manner in the arts and politics; for example – in politics – as a commitment to women’s rights and with the reminder that ‘women’s rights are human rights’ (though this does not refer solely to sexual self-determination and privacy). It is worth considering whether the gender-specific nature of such advocacy stems from the fact that human dignity – which must be defined uniformly for both women and men – is particularly threatened and often violated in these cases (= an increased need for protection); or also – though not exclusively, of course – in the fact that, with regard to its female bearers, it is defined differently and tends to be defined more broadly (= an expanded scope of protection). By way of further illustration, here is a case in which the West does the latter: female genital mutilation. In the case of boys, it is legally permissible (with the exception of Sweden) and morally indifferent, with or without a religious background; in the case of girls, it is universally condemned; that is to say, not only in the severe forms (removal of the visible part of the clitoris and so on), for which there are no comparable practices in boys, but also in the milder forms, which are medically comparable to circumcision.
This brings us to the final conceivable distinction: the dignity of the child. Here, too, we must ask whether there are any specific features to note in comparison with the general dignity of human beings. There are clear indications of this: to the child’s detriment, their self-determination is severely restricted compared to that of an adult. Where the child stays, what they wear, what they eat and what they do are largely determined by others. And although Section 1631 of the Civil Code grants children the right to an upbringing free from violence, without corporal punishment, psychological harm or other ‘degrading measures’, eminent legal scholars argue that parents should still be entitled to physically – as the term is still used – discipline their child. In contrast, there are numerous protective provisions in place for children, and children also enjoy special protection outside the legal sphere. And they are held in particular esteem: the news always explicitly reports when children are at risk or are among the victims of a tragedy.
(Insofar as this is expressed with the phrase ‘[numerous] women and children are also amongst the victims’, this, too, constitutes further evidence of gender-based unequal treatment. The same applies to the traditional maxim ‘women and children first’ when a sinking ship is to be evacuated [for the need for assistance cannot be the decisive factor; otherwise it would have to be – for example – ‘non-swimmers and children first’].)

4. What is the reason for attributing a special dignity to human beings?

Legal scholars teach that our contemporary concept of human dignity has its origins in the idea that human beings are ‘made in the image of God’ (the Imago Dei doctrine)⁷. However, in Christian teaching this has always been understood not only as a distinction but also as an obligation, one which by no means every person proves capable of fulfilling. Critical voices nevertheless caution that human beings should not take themselves too seriously. They are heard above all in contexts concerning the protection of animals, plants and the wider environment. And the question arises as to whether a special human dignity can also be justified by those who completely reject religion and metaphysics. Can a special status of dignity be attributed to human beings even when one has nothing but reason and agnosticism at one’s disposal – or does human dignity then merge with the civilisational principle of prudence embodied in the categorical imperative (to treat others as one would wish to be treated)? And to return to Christian teaching: what is its answer today, when asked about its connection to Article 1 of the German Basic Law?


1 As set out in the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights of 1966, the International Covenant on Economic, Social and Cultural Rights, also of 1966, the UN Convention against Torture, etc., of 1984, and the preamble to the Charter of Fundamental Rights of the European Union.

2 See Günter Dürig, AöR 81 (1956), p. 117 (127) and, building on this, BVerfGE 9, 89 (95); 87, 209 (228); BVerfG NJW 1993, 3315.

3 Immanuel Kant, The Metaphysics of Morals. Part Two: Metaphysical Principles of the Doctrine of Virtue (1797), § 38.

4 Horst Dreier, in: Grundgesetz. Kommentar, 2nd ed. 2004, ed. by Horst Dreier, Art. 1, para. 50.

5 See Katharina von Schlieffen, ‘Rhetorical Analysis of Law’, in: Soudry (ed.), Rhetoric: An Interdisciplinary Introduction to Rhetorical Practice (2nd ed. 2006), p. 42 (50 ff.); my ‘A Short Course in Rhetoric for Lawyers’ (2009), pp. 40 ff., 143 ff., 183 ff.

6 In the book *The Culture of Responsibility* (2007), p. 120.

7 See Dreier (footnote 4), para. 5, with numerous references. From non-legal literature, for example, Klaus Koch, *Imago Dei – Human Dignity in the Biblical Text* (2000).

Events/Dates

  • 26 and 27 April 2018: “Poetry, Truth – and Law”, the sixth conference of the Language and Law Working Group at the University of Regensburg
  • 7 March 2013: Symposium on Law and Culture, featuring a lecture by Honni van Rijswijk, Justus Liebig University Giessen (Contact: Birte.Christ​(at)​anglistik.uni-giessen.de or Mirjam.Horn​(at)​anglistik.uni-giessen.de, abstract)
  • 21–22 May 2012: ‘Round Table’ discussions – ‘Can literature learn from law?’, University of Münster, Department of English, Prof. Stiersdorfer. (Abstract)
  • 10 February 2012, 2.00 pm: Symposium “Human Dignity” (W 114)
  • 15 July 2011, 9.00 am: Workshop “Human Dignity” (RWS 1.01)
  • 15 November 2010, 11.00 am: Coordination meeting for the “Human Dignity” project (RWL 0.12)
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