circumscribing their scope and boundaries. Criminal law protects property by
prohibiting unlawful appropriation, theft for instance, and also circumscribes the
scope of the usage of this property by proscribing that no other human being
wrongfully ought to be harmed by it.
Criminal Law: Between the Sword and the Shield In the light of the foregoing,
it becomes apparent that criminal law has two functions that require delicate
balancing On one hand, it is a tool to maintain public order and control deviant
social behavior; on the other hand, its function is to canalize and circumscribe the
application of coercive measures and punishment in legally determined channels
that respect basic human rights. In other words, criminal law lays down rules under
which the state can exercise its powers and thereby protects the citizen from
arbitrary and disproportional state measures. Thus, criminal law functions, on one
hand, as a tool of the state against its citizens to control deviant behavior and, on the
other hand, as a tool of the citizens against repressive state powers. In other words,
criminal law has both a crime control function (sword) and a safeguard function
(shield) in our democratic society.
Questions After this brief introduction to the nature and function of criminal law,
this chapter sets out to discuss a number of central questions of criminal law and
criminal procedure. The first question, addressed in Sect.7.2, is how we can or
ought to decide which conduct should amount to a criminal offense in a liberal
society. Subsequently, in Sect.7.3, we will dwell on how the most salient feature of
criminal law, i.e. the imposition of punishment, can be justified.
The approaches of criminal justice systems can, at first sight, seem quite diverse,
but one may wonder if it is nevertheless possible to unearth some basic structure of
crime. Section7.4will therefore try to answer the question as to what the basic
structure of a criminal offense looks like. In Sect.7.5, we will subsequently discuss
which objective elements need to be fulfilled in order for criminal liability to arise.
The sixth question to be answered relates to the mindset or state of mind with which
a person needs to act in order for criminal liability to arise. Must it always be one’s
purpose to achieve a certain goal, or will sometimes inadvertence also suffice for
imposing criminal liability? These questions will, among others, be discussed in
Sect.7.6. Afterwards, we will turn to liability-negating circumstances. Will killing
another human being, stealing, or destroying property always and inevitably lead to
criminal liability, or does criminal law perhaps also accept exceptions to the legal
commandment “Thou shall not kill or steal”? This will be the topic of Sect.7.7.
Subsequently, we will strive to answer the question of what the criminal law’s
reaction will be in case the perpetrator fails to accomplish what he initially set out to
do. Will he escape liability completely, or are there perhaps good reasons to impose
punishment despite the fact that the envisaged result did not materialize? These
issues will be discussed in Sect.7.8.
As this is an introductory chapter on criminal law, we focus only on some
concepts and doctrines related to the criminal liability of one single perpetrator,
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