The law and the norm: Karl Binding's problematic construction for Criminal Law

Abstract

Binding’s assertion that the prohibition or mandate, the legal order against which the offender acts, is the norm that conceptually precedes the criminal law and that is found by transforming the first part of the criminal propositions into an order, is a affirmation that nothing contributes. On the contrary, the aforementioned distinction is artificial, and complicates the necessary understanding of an unlawfulness as an infringement of the norm (in the broad sense) and punishable as a consequence of said infringement. In fact, the concept of the Binding norm moves in the same direction as the theory of typicity as the basis of unlawfulness: there is no criminally decisive norm for the foundation of the sentence that is not part of the type. This contribution aims to show that it is necessary to abandon the aforementioned distinction in criminal dogmatics, and that, unsuccessfully and unnecessarily, it is followed by a broad doctrine.