[The normative concept of guilt in criminal law between freedom of will and neurobiological determinism].
2007-02-28

To make criminal conduct liable to punishment, criminal responsibility, defined as individual blameworthiness in terms of social ethics, is required as point of reference--both to create and limit the state's right to punish the offender. Neurobiological findings and more recent investigations in brain research have given rise to serious doubts regarding this "conditio sine qua non" of the state's power monopoly. As a result of preceding unconscious decisions, so the argument goes, Man is not free in his will, and the normative principle of culpability would need to be relinquished in favour of a "law of measures" detached from guilt. A detailed analysis of the underlying experimental setups, in particular the investigations by Benjamin Libet involving the measurement of the readiness potential, has shown, however, that the results of the test methods do not justify the demand for a profound change up to the point of a total revision of criminal law, and that they cannot invalidate the concept of freedom of will apostrophised on principle. The empirical data obtained fail to demonstrate if and why decisions of the will should not be free, the more so as the nomothetic method used ignores completely the idiographic understanding and interpretation of the always context-related and socio-structurally (pre)-moulded personality of the offender. Performed in a laboratory setting as individual actions with a comparatively simple structure and unrelated to a concrete situation, they can by no means be translated to the (more) complex situation under which an offence is committed including the decision-making processes determined by psychodynamic, motivational and intentional aspects as well as highly specific reciprocal interactions within the offender-victim constellation. Even if these experiments had shown the determined nature of human decisions, they would not necessarily have to bring about a conceptual change of paradigms of the normative concept of guilt, because as a result of self-attribution, the intra- and inter-subjective experience of the freedom of will renders the mere "illusion of freedom" sufficient to assign to an individual the appropriate sense of responsibility, which is also accepted by him. The alternative of a law of measures independent of guilt and culpability must be rejected because it is incapable of instituting sufficient protection, both in qualitative and quantitative terms, against prognostically diffuse and utilitarian hypertrophied prophylactic efforts on the part of the state up to the point of a revolutionised anthropological design, as shown quite clearly by the repressive and restrictive tendencies apparent in criminal policy since 11 September 2001. Consequently, the classic principle of guilt as one of the humanitarian foundations of punishment imposed by the state needs to be protected and upheld in the face of rash and inadequately considered law amendment endeavours. With its principles having slowly grown over the ages under democratic consent, criminal law is capable of immunising itself against uncritically generalised restructuring attempts based on inductive false conclusions and the confusion of coincidence, correlation and causality, let alone against the neurobiological "occupation tendencies" of normative premises. Regardless of their undeniable fascination, future brain research activities and the respective findings in the neurobiology of thinking, decision-making and acting as an indispensable empirical and epistemological starting point must always be reviewed in terms of their factual and normative implementation powers in favour of or against the human freedom of will.