What is the 46 and 2 theory
Why do we actually punish? The criminal theories at a glance
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When it comes to the question of what the meaning of the punishment is and what purpose is pursued with it, both absolute and relative punishment theories are represented [Wessels / Beulke / Satzger, StrafR AT, § 1 Rn. 12].
The absolute criminal theories
The absolute theories of punishment pursue the declaration that the sole purpose of punishment is to restore the legal order. This is achieved by the state inflicting a “just evil” on the perpetrator [cf. Wessels / Beulke / Satzger, StrafR AT, § 1 marginal number 12]. These approaches are accordingly also referred to as theories of justice [Ambos / Steiner, JuS 2001, 9 (11)].
The punishment therefore has a repressive effect, but does not seek any future consequences for society. The latter is already clear from the term “absolute” criminal theories, since the Latin absolutus means “detached”, in this case detached from another purpose [Ambos / Steiner, JuS 2001, 9 (11)].
Within this approach, a differentiation can be made between the theory of atonement and the theory of retribution [Wessels / Beulke / Satzger, StrafR AT, § 1 marginal number 12].
According to the atonement theory, the punishment after the act leads to a reconciliation of the perpetrator with the legal system. The objection to this view is that reconciliation can only take place on a voluntary basis and that the punishment is forcibly inflicted on the perpetrator [cf. Wessels / Beulke / Satzger, StrafR AT, § 1 marginal number 12].
In contrast, according to the retribution theory, the injustice that the perpetrator has committed must result in a punishment that is equivalent in terms of duration and severity, whereby Kant demands that the punishment must also be of the same type and that Hegel must satisfy a punishment that is equal in value lets [cf. Wessels / Beulke / Satzger, StrafR AT, § 1 marginal number 12].
In this context, the famous example of Kant's island is cited again and again. According to the theory of retribution, the last murderer would have to be executed if the island population had decided to leave their island and settle in other parts of the world. Only then would everyone get what they deserve [cf. Wessels / Beulke / Satzger, StrafR AT, § 1 marginal number 12].
One can object to the absolute theories of punishment that for the legitimation of punishment it is not sufficient to justify it solely with the retaliation of injustice [Radtke in: MüKoStGB, before §§ 38 ff. Rn. 33].
The punishment represents an interference that must comply with the principle of proportionality and accordingly also serve a legitimate purpose. However, it is difficult to explain this on the basis of absolute criminal theories [Wessels / Beulke / Satzger, StrafR AT, § 1 marginal number 12].
In addition, a punishment with an exclusively repressive character does not repair the damage in the perpetrator's socialization. However, this is an important cause of crime [Wessels / Beulke / Satzger, StrafR AT, § 1 marginal number 12].
The relative punishment theories
The relative criminal theories, on the other hand, aim to prevent further criminal offenses in the future with the aid of the penalty and have no relation to the specific act that the perpetrator committed. They are also called utilitarian theories of punishment [Ambos / Steiner, JuS 2001, 9 (11)]. They are not interested in retaliation for the act [Ambos / Steiner, JuS 2001, 9 (11)].
Within the relative criminal theories, a distinction can also be made between those that aim at general prevention and those that aim at special prevention [Wessels / Beulke / Satzger, StrafR AT, § 1 marginal no. 12].
Within the framework of general prevention, there are approaches that provide positive and those that provide negative general prevention. Negative general prevention means that the members of society are deterred from committing crimes by the threat of a penalty.
On the other hand, punishment in the sense of positive general prevention is intended to strengthen the legal compliance of the population and to reinforce their trust in the enforceability of the legal system [cf. Ambos / Steiner, JuS 2001, 9 (12)].
Special prevention can also be broken down into a positive and a negative. The negative special prevention aims to protect society from the perpetrator by locking it up. In contrast, the positive special prevention concerns his improvement [Wessels / Beulke / Satzger, StrafR AT, § 1 marginal number 12].
Various arguments are brought up against the relative criminal theories: With regard to the negative general prevention through deterrence, one can object that the perpetrator is being instrumentalized for the common good, which would ultimately constitute a violation of Art § 1 marginal number 282].
In addition, there is a risk that disproportionate sanctions are imposed with the aim of prevention, since the relative criminal theories do not contain any restrictions with regard to the permissible sentence [cf. Wessels / Beulke / Satzger, StrafR AT, § 1 marginal number 12].
The union theories
Overall, it can be said that both the absolute and the relative criminal theories show deficits. Nowadays, therefore, theories of unification from the various approaches are largely represented, whereby these are also based on the Criminal Code [Wessels / Beulke / Satzger, StrafR AT, § 1 marginal no. 12]:
- So determined Section 46 I 1 StGB, that the guilt of the perpetrator is the basis for determining the penalty. This includes the idea that the punishment should serve as retribution, which is in line with absolute theories of punishment.
- According to Section 46 I 2however, the effects that the punishment can be expected to have on the future life of the offender in society must be taken into account. The idea of special prevention is thus incorporated into the law.
- In addition, general prevention has also found its way into the StGB, what about Section 47 I StGB becomes clear. According to this, the court only imposes a custodial sentence of less than six months if special circumstances, which are in the act or the personality of the perpetrator, the imposition of a custodial sentence to act on the perpetrator or in defense of the legal order make indispensable.
[Wessels / Beulke / Satzger, StrafR AT, § 1 marginal number 12]
Errors in criminal law - learning aid for your law studies
In our free eBook you will find the individual errors explained step by step using suitable example cases:
✔ Errors at the factual level
✔ Errors at the level of illegality
✔ Errors at the level of guilt
✔ Errors about personal reasons for exclusion from punishment
Ambos, Kai / Steiner, Christian: On the sense of punishing on a domestic and supranational level, JuS 2001, 9 ff.
Kindhäuser, Urs / Neumann, Ulfrid / Paeffgen, Hans-Ullrich (eds.): Nomos Commentary on the Criminal Code, 4th edition, Baden-Baden 2013
Munich Commentary on the Criminal Code, 2nd edition, Munich 2012
Wessels, Johannes / Beulke, Werner / Satzger, Helmut: Criminal law, general part: The criminal offense and its structure, 44th edition, Heidelberg (et al.) 2014
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