Verbotsgrade und „kontra-normative“, hypothetische Welten. Zu Wolfgang Spohns Rangtheorie, übertragen auf rechtliche Normensysteme

Abstract

That wrongdoing can be understood as scalar rather than bivalent, is a kind of truism in modern criminal law theory. But how exactly the strength and stringency of legal prohibitions and corresponding obligations can be conceptualized, is a complicated and intriguing topic. So, Wolfgang Spohn’s elegant, fresh start with a normative ranking theoretic conception of a prohibition order should be warmly welcomed by legal theorists for scrutinized discussion. Anyhow caution is warranted when “counter-normative”, similar worlds-thought experiments are introduced which promise an easy way out of the bramble bush of comparing and weighing different wrongdoings and offences in our actual (factual and normative) world. Furthermore, Spohn’s fact-regarding normative reasoning is too much rooted in modern decision theory, that it can be regarded as completely “theory-neutral” between different understandings of legal norms within deontological and consequentialist theories.