ABSTRACT

At first sight, criminal law’s model of man seems not only compatible with rational choice theory (RCT) but even dependent on it. It seems natural, therefore, that discussions about criminal law’s goals as well as its legitima­ tion very often stress deterrence. Yet, as I will try to show, compatibility between criminal law and RCT exists only on the surface and the confronta­ tion of the legal model of the criminal with recent findings of RCT research produces quite a few contradictions, and necessarily so. In order to let this become clear, the following will sketch what seems to be criminal law’s model of man and which assumptions lie behind it. There will then follow a very brief overview of RCT results and of the possible reasons why criminal law conflicts with RCT. The final section of this chapter suggests how the philosophical assumptions of criminal law and the results of RCT could be reconciled. To illustrate this point, reference will be made to the Swiss and, occasionally, to the German criminal codes, but these two criminal law systems just stand as examples for any criminal code or system of criminal justice.