Felix Kaufmann, Schuld und Strafzweck (1930)

Felix Kaufmann’s journal article is a reply to Leopold Zimmerl’s criticism of his book on the philosophical foundations of criminal-law culpability. Its immediate setting is the Austrian and German debate over penal reform. Kaufmann maintains that Zimmerl has missed the core of his argument, but concentrates on restating that argument rather than rebutting individual objections. The central issue is how culpability can function as a legally usable concept when it incorporates a negative value judgment. Kaufmann moves from the epistemology of values, through the relationship between culpability and penal policy, to the drafting of criminal statutes. His practical conclusion is that legislation should identify judicial discretion openly rather than conceal it behind apparently ascertainable moral values.

The prevailing conception of culpability, Kaufmann argues, includes an attribution of disvalue, whether to the offender’s will, disposition, or character. The decisive question is therefore not initially where that disvalue resides, but how its presence can be established. Deduction cannot supply an independent foundation: values can be inferred only from other values, so a syllogism merely relocates the problem. Intuitive apprehension appears to offer an alternative, particularly through the sense of justice, but its apparent certainty becomes unreliable in difficult cases.

Sieht man aber näher zu, will man jene subjektive Evidenz bezüglich dessen, was „richtiges Recht“, was „gerecht“ ist an komplizierteren Rechtsfällen erproben, so erkennt man bald, daß sie häufig versagt.

English translation: But if one looks more closely and seeks to test that subjective evidence concerning what is “right law,” what is “just,” against more complicated legal cases, one soon recognizes that it frequently fails.

Cases resembling necessity expose this weakness. Kaufmann nevertheless allows that members of a legal community may agree extensively about which conduct deserves punishment. He leaves unresolved how far this agreement is innate or acquired, affective or rational. What matters is that interpersonal agreement and strong emotional conviction make many evaluations seem self-evident. The need for justification arises only when borderline cases interrupt that confidence. Consensus explains why judgments are experienced as unquestionable; it does not establish an independent method of knowing their underlying values.

Reflection at these boundaries reveals the influence of practical purposes upon supposedly immediate judgments of culpability:

Dann setzt die rationale Besinnung ein und ihr Ergebnis ist, daß jene Wertungen vorwiegend durch Zweckmäßigkeitserwägungen bestimmt werden, in unserem Falle durch kriminalpolitische Erwägungen.

English translation: Rational reflection then begins, and its result is that those evaluations are predominantly determined by considerations of expediency—in our case, by considerations of criminal policy.

Such considerations concern whether punishment should be imposed and how severe it should be. Attributions of culpability largely assimilate themselves to these decisions: where punishment appears appropriate as a matter of penal policy, the offender is generally felt to be culpable; where a harsher punishment appears appropriate, greater culpability is felt to exist. This is Kaufmann’s key move against a sharp separation between punishment grounded in guilt and punishment directed toward practical ends. Their ideas may seem fundamentally different, yet their operation in judgment substantially converges. He refers readers to his book for the fuller explanation of that convergence, keeping the article focused on its consequences for the concept of culpability.

Kaufmann next anticipates the objection that these reflections are legally irrelevant because positive law already specifies when culpability exists and how it is graded. His answer distinguishes applying existing law from designing legislation. The theoretical controversy primarily concerns how culpability should be defined in future statutes. Reformers seek definitions that express its moral disvalue, preserve agreement with the general sense of justice, and reduce discrepancies between morality and law. He identifies Frank’s requirement of blameworthiness and Freudenthal’s treatment of the inability reasonably to demand certain conduct as an exclusion of culpability as examples of this approach.

Doch liegt hierin nur eine Umbenennung, aber keine sachliche Erkenntnis, denn in der Vorwerfbarkeit steckt das unaufgelöste Wertmoment ebenso, wie in der Schuld, in der Nichtzumutbarkeit ebenso wie in der Entschuldbarkeit.

English translation: Yet this amounts only to a renaming, not to substantive knowledge, for the unresolved evaluative element is contained in blameworthiness just as it is in culpability, and in the inability reasonably to demand conduct just as it is in excusability.

The criticism concerns the explanatory work these formulations actually perform. Replacing culpability with another evaluative expression does not resolve the original difficulty. Instead of furnishing substantive criteria for applying the law, such language appeals to the judge’s sense of justice. Its institutional effect is an enlargement of judicial decision-making power. Kaufmann also associates it with an increased emphasis on special prevention relative to general prevention, while explicitly leaving the supporting argument to his book. He calls these conceptual constructions natural-law constructions because, in his account, their philosophical foundation is the assumption that absolute values exist and can be known.

The concluding proposal is therefore one of legislative clarity, not the elimination of every discretionary decision. Kaufmann recommends avoiding value concepts in statutory language as far as possible, while carefully observing that a factual finding cannot itself yield a normative demand.

Will man dem Richter ein bestimmtes Ausmaß von Entscheidungsfreiheit einräumen, so kann dies unzweideutig festgelegt werden, ohne die Fata Morgana einer Erkenntnis dort vorzugaukeln, wo in Wahrheit freie Stellungnahme zur Entscheidung führt.

English translation: If one wishes to grant the judge a certain degree of freedom of decision, this can be laid down unambiguously, without conjuring up the mirage of knowledge where, in truth, a freely adopted position leads to the decision.

Likewise, legislation can expressly instruct judges to follow the prevailing legal sentiment within a social circle. The important distinction is between knowing a value and exercising an authorized choice. The article’s enduring relevance lies in showing how moral vocabulary can obscure the allocation of legal power. A closing personal note reinforces its methodological stance: scientific controversy should acquire and communicate insight, not become an intellectual duel over honor. Kaufmann leaves readers to assess Zimmerl’s criticism through comparison with the original argument.