Probabilistic Criminal Law

Abstract

This article undertakes a revision of the established doctrinal understanding of the structure of a criminal offence and its relationship to social dangerousness. Unlike civil liability, which is triggered by the fact of harm, criminal liability arises from the possibility of harm. Social dangerousness is therefore not reducible to actual damage but encompasses potentiality, risk, and probability. Criminal law thus operates as a system of risk management, where its application is an assessment of probability rather than a mere statement of fact.

The study argues that social dangerousness is formed outside the legal construction of the offence, does not consist of its elements, and may not coincide with them in time. Consequences and causation should be treated not as elements of the offence but as general or special indicators of social dangerousness. This reconceptualization highlights the temporal gap between conduct and its legal assessment: a completed act may remain legally indifferent until consequences occur, while criminal-law evaluation often takes place post factum as a reconstruction of events. In such reconstruction, the decisive issue is the role of contingencies and whether the “event tree” of possibilities included lawful alternatives.

Particular attention is given to the problem of intervention in probabilistic processes. Preventing criminal offences requires proactive state action, yet the presumption of innocence creates a structural dilemma for predictive law enforcement. The article proposes the methodological development of forensic forecasting as a documentary form of substantiating the probability of socially dangerous consequences. This would legitimize preventive measures without substituting criminal proceedings and would extend crime prevention beyond the accusatory-personal logic of traditional criminal law.

The article concludes that the structure of a criminal offence should be understood as the minimal legal model of conduct, while social dangerousness is its external characteristic, constructed over time. Criminal law, in its essence, emerges as a system of risk management, where probabilistic evaluation is an inherent part of both criminal-law qualification and preventive activity.