Justification or Excuse? The Collision of Positive Duties in German Criminal Law
| Date | 01 June 2014 |
| Published date | 01 June 2014 |
| DOI | 10.1350/jcla.2014.78.3.922 |
| Author | Till Zimmermann |
| Subject Matter | Article |
Justification or Excuse? The
Collision of Positive Duties in
German Criminal Law
Till Zimmermann*
Abstract Legal systems operating on the idea that not only positive acts, but
also omissions can be criminally relevant may create ‘legal traps’ by
demanding impossible behaviour where there is a collision of duties. This,
however, cannot be the law. There must be a definite instruction to those
confronted with conflicting duties. In German law, the solution of the
collision of a positive with a negative duty is solved by applying the lesser-
evil clause of s. 34 of the Criminal Code, granting a defence of necessity. The
same idea is also applicable if two positive duties with different values collide.
However, German law does not offer a solution if the positive duties are of
equal value. While some argue that in such a case the person fulfilling one
duty and thereby violating the other is merely excused, the analysis of the
situation on the basis of the Rawlsian Theory of Justice leads to the conclusion
that a justificatory defence should be offered to that person—even in cases
of murder.
Keywords Collision of duties; Necessity; Omission; Supra-statutory
defence; Veil of ignorance
As the idea of law is to establish a system protecting the interests of
individuals,1 legal systems include provisions called individual rights. For
example, the German Constitution (Grundgesetz) provides the right to life
in article 2(2) (protecting the individual’s interest to live), and article 14(1)
guarantees the institution of property (protecting the individual’s interest
in owning things).
In order to protect ‘strong’ rights (protecting strong interests, such as
life or property) effectively, criminal law does not only prohibit the
violation of strong rights, but also imposes certain penalties when such
rights are violated (rule of thumb: the stronger a protected interest/right
is, the more serious the penalty is).
By setting rules in order to protect individual rights, criminal law assigns
certain duties to all people. For example, the duty not to violate someone’s
right to life (s. 212:2 murder) or property interest (s. 242: theft). Thus, the
* Postdoctoral Research Fellow, University of Passau; e-mail: till.zimmermann@uni-passau.
de. The author would like to thank Catherine Barnard (New York), Megan Barnett
(Mel bourne) and Marie-Lena Marstaller (Passau) for their excellent contributions to this
article.
1 See N. Hoerster, ‘Rechtsethik ohne Metaphysik’ (1982) 37 Juristenzeitung 266; D. v.d.
Pfordten, ‘Normativer Individualismus und das Recht’ (2005) 60 Juristenzeitung 1069.
2 All sections listed in this article are those of the German Criminal Code (Strafgesetzbuch).
An English translation of the code is available at http://www.gesetze-im-internet.de/englisch_
stgb, accessed 15 April 2014. A comprehensive overview of the code and its principles is
provided by M. Bohlander, Principles of German Criminal Law (Hart Publishing: Oxford,
2009).
The Journal of Criminal Law (2014) 78 JCL 263–76 263
doi:10.1350/jcla.2014.78.3.922
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