Legal dogmatics of criminal law is a subject of inquiry in legal science, but its objectivity is a matter of debate. It might be seen as the presentation of subjective values by individual scholars, lacking objectivity. Others argue that objectivity can be achieved by selecting and presenting objectively correct dogmatic from legal texts. In another perspective, legal dogmatics is viewed as a description of the present status of effective criminal law, which could be considered objective.
Legal Dogmatics and Objectivity in Germany and Japan
In Germany, legal dogmatics of criminal law aims to interpret the criminal code systematically and normatively, without contradiction, using logical deduction. This approach is deeply ingrained in German criminal law studies. Debates between different schools of thought continue to utilize the same methodology, constructing theoretical systems based on central dogmas and logical deduction. However, this approach may prioritize individual value judgments and present them as objective.
In Japan, influenced by German criminal theory, considerable effort has been devoted to structuring the system of criminal theory. Debates have revolved around views on human nature in criminal law and the emphasis on maintaining social order or resolving disputes in court. These debates ultimately reflect the proponent’s philosophical or political value judgments.
The normative construction of legal dogmatics primarily emerged from discussions on the characteristics of norms, particularly in German criminal jurisprudence. However, despite appearing objective, normative constructions involve value judgments and can be subject to dispute. Legal studies rarely yield a single correct answer, and conclusions are often a matter of appropriateness rather than absolute truth.
The possibility of a more objective approach to legal dogmatics of criminal law is an ongoing issue. Various countries have explored the construction of objective dogmatics, but achieving true objectivity remains challenging.
The History of Methodologies for Objective Dogmatic of Criminal Law
The objective dogmatic of criminal law has evolved through different methodologies over time.
Pre-WW II: Positivism. Before World War II, the dominant approach was the modernist school of criminal theory, which advocated for reformatory punishment as a means of improving and educating offenders. This theory was based on the understanding that crime was influenced by the nature of the offender and the environment. It emphasized scientific research and studies as the foundation for criminal theory. However, this approach had subjective tendencies and declined rapidly after the war, particularly in Japan and Germany, where the abuse of power by the State was experienced.
Post-WW II: Empirical Studies of Law. After the war, objective dogmatic of criminal law continued to be pursued in Germany and Japan. In West Germany, an alternative proposal for the general part of the criminal law was published in 1966, focusing on prevention of crimes based on empirical science. In Japan, influence from US legal studies and empirical legal studies began to shape the field. Some scholars emphasized empirical facts and criticized traditional theories, advocating for a pragmatic approach to reconstruct the functions of criminal law.
Orientation towards Science in Legal Philosophy: Scandinavian Case. The pursuit of science in legal studies has a longer history in jurisprudence and legal philosophy compared to dogmatic of criminal law. Hans Kelsen‘s Pure Theory of Law and Oliver W. Holmes‘ legal pragmatism had an impact on legal studies but had limited influence on dogmatic of criminal law. However, in Denmark, the Scandinavian legal realism, founded by Axel Hägerström (1868–1939, Uppsala University), a Swedish philosopher, influenced the development of legal studies. Danish legal philosopher Alf Ross (1899–1979, University of Copenhagen) further developed this approach by focusing on objective facts and distinguishing between legal dogmatic assertions and legal politics assertions.1
Ross’ Theory as Applied by Waaben
Danish scholar Alf Ross‘ theory of valid law,2 which considers the thought process of judges as the foundation of law, is significant in Danish legal studies. Knud Waaben (1921–2008, University of Copenhagen) adapted Ross’s theory to dogmatic of criminal law, considering the peculiarities of criminal laws.3 Waaben’s method of conceptual structure criticized the German legal methodology and aimed to apply Ross’s theory to dogmatic of positive criminal law.
This methodology has contributed to the objectivization of criminal law studies by emphasizing the thought process of judges as the basis for empirical research, objective description of the law, and legal judgments. In other words, by making the thought processes of judges the object of observation by criminal law scholars and objectively describing them, it is possible to clarify the picture of criminal law as it is currently valid in a given country.
Distinguishing between legal dogmatics and legal politics can become vague in areas where facts and values intersect. The difficulty lies in observing the thought process of judges who, in turn, observe the results from the other side.
Legal dogmatics and legal politics can be distinguished through methodology, specifically the materials used for the decision and the analytical methods employed. Legal dogmatics relies on empirical facts and analysis, while all other approaches fall under legal politics.
Waaben states that the task of criminal law dogmatics is to objectively describe the ideology of the judges. The thought process of judges involves applying laws to specific cases based on shared value judgments accumulated among the judges, making their decisions somewhat objective. And a further question is how to describe it.
On these questions, the two Danish scholars mentioned above have not yet prepared adequate answers. My own answers, which I have developed, will be presented below.
Embodiment of “Valid Law” Methodology
The method for the dogmatic study of criminal law, specifically the methodology for extracting and structuring theories are following. It highlights the different points of reference used to understand the ideologies of judges, including judicial precedents, literature authored by judges, literature that influenced judges, and communication with judges. These sources provide insights into judges’ thought processes and help in creating a theory of criminal law.4
The method of theoretical structuring involves creating a system of criminal theory based on judges’ ideologies. It suggests focusing on criminal procedure and identification theory, as these aspects are central to judges’ decision-making. The relevance of general elements of offenses, justifiable noncompliance (defense of justification), and non-imputability (defense of excuse) are considered as starting points for structuring the theory.
Furthermore, the method explores the foundation of legal politics of criminal law and the function of creating law by judges. It acknowledges the role of criminal law scholars in proposing ideas to judges and legislators, emphasizing the need for clear value judgments in these proposals. It also addresses the relationship between judges’ activities and the principle of legality, discussing the interpretation of statutes and the potential for judges to engage in the creation of law.
Finally, the method touches on the definition of logic in legal analysis. It argues that legal analyses, based on meticulous theoretical construction and logic, are still influenced by the speaker’s value judgments and remain a form of criminal policy. It acknowledges the limitations of objectivity in theories and highlights the importance of shared value judgments in achieving a level of objectivity.
Overall, the theory provides insights into the methodology for extracting and structuring theories in the dogmatic study of criminal law, as well as the role of legal politics and the challenges of achieving objectivity in legal analyses.
Criticisms of the methodology
The presented methodology for legal dogmatics of criminal law has faced criticism and raised several issues. One criticism is that valid law should not be limited to the thought process of judges alone. In countries with discretionary prosecution, the decisions of prosecutors in determining whether or not to prosecute have a significant impact. Moreover, laws that regulate society are not solely derived from court decisions but also include decisions by the administration and government offices. Henrik Zahle (1943–2006, Professor in Law, University of Copenhagen) argues for polycentricities of law and different methods of determining their appropriateness.5
Regarding the concept of proving predictions true or false, reconciling predictions and facts presents challenges. Determining when a prediction is deemed true or false and the issue of objectivity in science are complex matters. Preben Stuer Lauridsen (1940–2013, University of Copenhagen) suggests that debates and criticism among scholars should be the standard for verification, but it must involve a soundly organized group of experts.6 However, determining the qualification of such a group remains a procedural and methodological challenge.
While some issues remain unresolved, certain answers have been obtained regarding the criticism and problems inherent in the methodology for legal dogmatics of criminal law presented in this article. This is discussed in detail in my book, “Methodology of Criminal Law Theory”.7
- Ross is a Scandinavian legal realist, and Scandinavian legal realism has many similarities with American legal realism. Oliver W. Holmes said that the law is a forecast of what the courts will actually decide. Ross’s theory is also called “prognostic theory” in Denmark. So people often ask, what is the difference between the two? My answer is something like this: American realism is behavioural realism, while Scandinavian realism is psychological realism. American legal realists predict judgments based on their observations of judges’ behaviour. Scandinavian legal realists, on the other hand, predict judgments based on their observations of judges’ psychological processes. I go further and try to describe the legal logic and system inherent in the judge’s mind from the observation of the judge’s psychological processes. The dogmatics described by the “Valid Law” theory therefore has a high degree of theoretical sophistication.
- Ross, On Law and Justice (Jakob v. H. Holtermann ed, Uta Bindreiter tr, OUP 2019).
- Waaben, Det kriminelle forsæt (Gyldendal 1957) 44.
- I have received comments on my “Valid Law” theory that empirical evidence is not presented in the form of data. Certainly I do not present data in the form of numbers or graphs. I do not collect quantitative data, but infer and describe the psychological processes of judges from my conversations and interviews with them. For this reason, I practice this type of research by organising a research group called “The research group to defining valid law in Japanese criminal Justice” with judges and by being in constant contact with them. See waseda.jp/prj-genkeiken.
- Zahle, ‘Retsdogmatik og retskritik’ in E.M.Basse og Vibeke Jensen (eds), Regulering og Styring I, (Djøf 1989) 45–52,
- Lauridsen, ‘On a Fundamental Problem in the Legal Theory of Prediction’, in Scandinavian Studies in Law, vol. 20 (Stockholm Inst for Scandinavian Law 1976) 203–204.
- Shin Matsuzawa & Kimmo Nuotio ed., Methodology of Criminal Law Theory: Art, Politics or Science? Nomos 2021. ISBN 978-3-8487-6377-1.