The German Doctrine of the Protection of Legal Goods as the Task of Criminal Law: Critical Remarks on an Alleged Achievement of German Criminal Law Theory

Abstract In criminal law theory, the idea of a strictly relational understanding of criminal wrongdoing has recently become popular again. It advocates a second-person approach instead of the third-person standpoint, which is characteristic of the currently prevailing views. An example of such a third-person approach is – from a German perspective – the so-called legal goods doctrine (“Rechtsgutslehre”), which is widely regarded as one of the most important achievements of German criminal law theory. According to this doctrine, the specific task of criminal law is to protect legal goods. Its proponents argue that this seemingly simple insight has an important function in the interpretation and systematisation of the criminal law provisions of the Special Part. Moreover, and above all, it is supposed to help determine the limits of permissible criminal law legislation and thus provide the legislator with legal or at least ethical guidelines. This article shows that the latter claim is not justified. The legal goods doctrine does not give a viable answer to the question of where the limits of legitimate criminal law lie. Therefore, whether a second-person approach could offer more convincing solutions deserves closer consideration.