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Review Essay - Facilitating a Comparative Analysis of Criminal Law: Volker Krey's Bilingual Textbook on German Criminal Law

Published online by Cambridge University Press:  06 March 2019

Lutz Eidam

Abstract

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Type
Legal Culture
Information
German Law Journal , Volume 5 , Issue 9 , 01 September 2004 , pp. 1171 - 1185
Copyright
Copyright © 2004 by German Law Journal GbR 

References

1 Liszt himself is famous for the founding of the “International Criminal Association” in 1889. See Elisabeth Bellmann, Die Internationale Kriminalistische Vereinigung (1889–1933) (1994).Google Scholar

2 Robert von Hippel, 1 Deutsches Strafrecht – Allgemeine Grundlagen 376 (1925).Google Scholar

3 Supra at note 2, §§ 19, 20. Before von Hippel, at the beginning of the 20th century, nearly all of the criminal law professors in Germany were working together on a comprehensive approach to international criminal law. The outcome was a work consisting of 16 volumes which was presented in 1909 and titled: Comparative Presentation of German and International Criminal Law. See Eb. Schmidt, Einführung in die Geschichte der deutschen Strafrechtspflege § 327 (3rd ed).Google Scholar

4 The Max- Planck-Institute for Foreign and International Criminal Law in Freiburg (Germany) can stand as a good example for an international approach to criminal law. See http://www.iuscrim.mpg.de/iuscrim.html for details. See also the website of the Buffalo Criminal Law Center, State University of New York at Buffalo, available at http://wings.buffalo.edu/law/bclc/. This website presents – among other criminal law related topics – a collection of international penal and procedure codes.Google Scholar

5 See, e.g., George P. Fletcher, Basic Concepts of Criminal Law (1998). In this book, Fletcher presents twelve issues that inevitably come up in every system of criminal justice and therefore presents evidence on the fact that there is much greater unity among criminal justice systems than one might expect.Google Scholar

6 Id. at 3.Google Scholar

7 See, e.g., Russell Miller, The Shared Transatlantic Jurisprudence of Dignity, 4 German Law Journal No. 9 (1 September 2003), at http://www.germanlawjournal.com. This article shows that the German as well as the American legal system even in the area of capital punishment share a common foundation of values (“dignity”) and arguments, regardless of the very different ends the two systems sometimes make out of these values.Google Scholar

8 A good example would be the changing view as to Victims’ rights in criminal law as well as in criminal procedure law. For the German discussion see, e.g., Winfried Hassemer / Jan Phillipp Reemtsma, Verbrechensopfer (2002); for the American discussion see the critical approach of Markus D. Dubber, Victims in the War on Crime: The Use and Abuse of Victims’ Rights (2002).Google Scholar

9 Recently the German criminal law system faced the problem of how to deal with the issue of cannibalism. See Gisela Friedrichsen, Der Spiegel 6/2004, at 44 (“A border line of criminal law”). By contrast, the issue of cannibalism also brought up difficulties in the old English case Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884). Although the issue in Dudley and Stephens was not about the applicable statutory provision (that was the problem in the German case) but whether or not a defense applies to cannibalism in order to avoid dying from starvation, both cases nevertheless can stand as a general example that the same issue might bring the criminal law to its border lines since it is not really used to deal with behavior like this.Google Scholar

10 Cf. George P. Fletcher, Deutsche Strafrechtsdogmatik aus ausländischer Sicht, in Die deutsche Strafrechtsdogmatik vor der Jahrtausendwende – Rückbesinnung und Ausblick, Muenchen 236 (Albin Eser et al. eds. 2000). Fletcher emphasizes that a comparative legal approach has always been a „spiritual garden“ for him in which his own spirit can blossom out.Google Scholar

11 Volker Krey, Deutsches Strafrecht, Allgemeiner Teil – Teil I & II / German Criminal Law General Part – Part I & II, Preface.Google Scholar

12 For information and materials see the official court website available at http://www.un.org/icty/.Google Scholar

13 Unedited, uncommented translations of the German penal code have long been available. See The German Penal Code, 32 The American Series of Foreign Penal Codes (Stephen Thaman trans. 2002).Google Scholar

14 Volker Krey, Deutsches Strafrecht, Allgemeiner Teil – Teil I / German Criminal Law General Part – Part I (Lehrbuch in Deutsch und Englisch; Textbook in German and English) (2002) [hereinafter Krey, Teil I / Part I].Google Scholar

15 See section IV infra.Google Scholar

16 Krey, Teil I / Part I, supra at note 14, No. 12.Google Scholar

17 This, for instance, is laid down in the German maxim of the “fragmentary character” of the criminal law as well. This maxim, however, puts emphasis on codified criminal law to clearly set out the boundaries of criminal behavior. See Wolfgang Naucke, Strafrecht, Eine Einführung, (10th ed.), § 2 No. 13.Google Scholar

18 The constitutional standard of proportionality is e.g. discussed by Ivo Appel, Verfassung und Strafe 171 – 196 and 576 – 590 (1998) as well as Gregor Staechelin, Strafgesetzgebung im Verfassungsstaat 101 – 167 (1998).Google Scholar

19 Cf. the critical approach of Wolfgang Naucke, Strafrecht, Eine Einführung, (10th ed.), § 2 No. 100 – 102. Naucke stresses that one can read the constitution in two different ways. On the one hand the constitution may contain commands to abolish or at least limit criminal sanctions. On the other hand a command to punish harshly in order to protect certain legal interests of the people may also be found in the constitution. This leads to some confusion and to the conclusion that the constitution does not really contain fixed standards for the criminal law. They seem to be changing and they are in the hand of the judiciary.Google Scholar

20 See, e.g., Wayne R. LaFave, Criminal Law (3rd ed.), 10 – 12.Google Scholar

21 For the American discussion on the insufficiency of morals cf. H. Packer, The Limits of the Criminal Sanction 265 (1969): “In a society like ours, some tensions and ambivalences are better left unmediated by the criminal law. (…) Morals belong to the home, the school, and the church: and we have many homes, many schools and many churches. Our moral universe is polycentric.”Google Scholar

22 See the critical approach of Markus D. Dubber, The Promise of German Criminal Law (February 23, 2004), available at http://ssrn.com/abstract=508643, III.Google Scholar

23 For the upcoming importance of the constitutional law as an area to set boundaries for the criminal law in Germany see Ivo Appel, Verfassung und Strafe (1998); Otto Lagodny, Strafrecht vor den Schranken der Grundrechte (1996), Gregor Staechelin, Strafgesetzgebung im Verfassungsstaat (1998). As opposed to this upcoming importance of constitutional law in Germany, constitutional law and foundations of the criminal law in the U.S. are more or less ignored in substantative criminal law teaching. On the other hand, American procedural criminal law classes deal with nothing but constitutional law. See Markus D. Dubber, Reforming American Penal Law, 90 J. Crim. L. & Criminology 49 at 53 (1999).Google Scholar

24 For further details on this important constitutional standard see Winfried Hassemer, Einführung in die Grundlagen des Strafrechts, § 27 as well as Wolfgang Naucke, Strafrecht, Eine Einführung, (10th ed.), § 2.Google Scholar

25 Markus D. Dubber, Reforming American Penal Law, 90 J. Crim. L. & Criminology 49 at 50 (1999).Google Scholar

26 The main source for the principle of legality is the 5th Amendment of the U.S. federal constitution.Google Scholar

27 Legislativity means that the power to make penal law is restricted to the legislature as opposed to the judiciary or the executive. See the leading case US v. Hudson and Goodwin, 11 U.S. 32 (1812).Google Scholar

28 Lenity requires not only to interpret ambiguous criminal statutes in favor of the defendant but also to interpret them narrowly. See, e.g., Mc Boyle v. United States, 283 U.S. (1931).Google Scholar

29 This principle requires that advance and ordinarily legislative crime definitions are meaningfully precise – or at least not meaninglessly indefinite. See Conelly v. General Constr. Co., 269 U.S. 385, 391 (1926) where the Supreme Court set out the standard for this principle.Google Scholar

30 Prospectivity brings up the requirement that penal laws are only valid if they are enacted prospectively and is explicitly mentioned in Art. I Sec.9 of the U.S. Federal Constitution. It is commonly referred to as the ban against ex post facto law making. See Calder vs. Bull, 3 U.S. 386 (1798).Google Scholar

31 Every act of Parliament, in order to give fair warning, is to be published and promulgated.Google Scholar

32 For the abolishment of the constitutional prohibition of analogies by the National socialist Party in 1935 as the beginning of legal tyranny in Germany see Wolfgang Naucke, Die Aufhebung des strafrechtlichen Analogieverbotes 1935, in NS – Recht in historischer Perspektive, Kolloquium des Instituts für Zeitgeschichte 71 et. seq. (1981).Google Scholar

33 See William Blackstone, 4 Commentaries on the Laws of England 3 (1769): “It [meaning the criminal law] should be founded upon principles that are permanent, uniform and universal; and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind: (…)”. For an enumeration and a critical analysis of limiting principles for the criminal law see P.-A. Albrecht, Die vergessene Freiheit (2003).Google Scholar

34 For the most complete enumeration of possible purposes of punishment see Friedrich Nietzsche, Genealogy of Morals 68 (1st Treatise, Chapter 13) (German Goldmann Edition).Google Scholar

35 This has been proved by a recent piece of work from Markus D. Dubber, The Promise of German Criminal Law (February 23, 2004),available at http://ssrn.com/abstract=508643, II. Here, Dubber discusses the German punishment theories with emphasis put on the theory of general prevention from an American point of view.Google Scholar

36 See Markus D. Dubber, Criminal Law, Model Penal Code 24 (2002).Google Scholar

37 BVerfGE 45, 187 (1977), 253 et seq.Google Scholar

38 For example Atkins v. Virginia, 122 S.Ct. 2242 (2002), where the U.S. Supreme Court held that the 8th Amendment of the U.S. Constitution bars the execution of mentally retarded people. Here, the Court derived arguments from the theories of punishment. See Lutz Eidam, Mentally Retarded Offenders and the Death Penalty – The latest Supreme Court Ruling and possible European Influences, 4 German Law Journal No. 5 (1 May 2003), B. III.Google Scholar

39 See the criticism of Markus D. Dubber, Reforming American Penal Law, 90 J. Crim. L. & Criminology 49, 68 (1999). Drubber sees a problem in the “over-specialisation” of the highly developed German science of penal law (Strafrechtswissenschaft), because if over-specialized, the law will not address the majority of the people, namely its non-expert audience.Google Scholar

40 See, e.g., the detailed work of Stefan Braum, Europäische Strafgesetzlichkeit (2003).Google Scholar

41 Volker Krey, Deutsches Strafrecht, Allgemeiner Teil – Teil II / German Criminal Law General Part – Part II (Lehrbuch in Deutsch und Englisch; Textbook in German and English) (2002) [hereinafter Krey, Teil II / Part II].Google Scholar

42 For the development of the German tripartite structure of offenses, see Jescheck / Weigend, Lehrbuch des Strafrechts, Allgemeiner Teil, 5th ed. 194 – 217 (1996).Google Scholar

43 Cf. George P. Fletcher, Basic Concepts of Criminal Law 93 (1998). For a detailed comment on the value and the background of the distinction between Justifications and Excuses see Winfried Hassemer, Justification and Excuse in Criminal Law: Theses and Comments, in 1 Justification and Excuse, Comparative Perspectives 175 et. seq. (Albin Eser & George P. Fletcher eds. 1987).Google Scholar

44 Apart from certain jurisdictions in the U.S., Japan, Italy, Spain, Greece and some Latino-American countries have adopted the three step analysis of criminal liability.Google Scholar

45 The Code differentiates in Part I, Article 2, 3 and 4 between “General Principles of Liability” (Art. 2), “General Principles of Justification” (Art. 3) and “Responsibility” (Art. 4). Cf. the scheme for an analysis of criminal liability under the MPC of Markus D. Dubber Criminal Law, Model Penal Code (2002) § 18.Google Scholar

46 George P. Fletcher, Rethinking Criminal Law 575 – 579 (1978).Google Scholar

47 Markus D. Dubber, The Promise of German Criminal Law (February 23, 2004). available at http://ssrn.com/abstract=508643, Conclusion.CrossRefGoogle Scholar

48 Cf. §§ 211 et. seq. German Penal Code (“StGB”).Google Scholar

49 Various specific offenses in the German StGB can only be committed by government officials. See §§ 331 et. seq. StGB.Google Scholar

50 For a detailed explanation see Markus D. Dubber, Criminal Law, Model Penal Code 43 – 52 (2002).Google Scholar

51 George P. Fletcher, Basic Concepts of Criminal Law 3 (1998) gives the approximate number of 35 state jurisdictions that have been influenced by the Model Penal Code.Google Scholar

52 The American criminal law system goes even further with its exceptions to the act requirement in the area of Possession Offenses. Here, the mere possession of certain items may result in criminal liability. On that basis, § 2.01 (4) of the MPC simply states that “possession is an act”, totally ignoring the upcoming tension between the traditional act requirement for criminal liability. See generally Wayne R. LaFave, Criminal Law (3rd ed.), 211 – 231. For a critical approach, see Markus D. Dubber, Policing Possession: The War on Crime and the end of Criminal Law, 91 J. Crim. L. & Criminology 829 (2002).Google Scholar

53 As opposed to German criminal law, both concepts are defined by statute in the Model Penal Code. See § 2.03(1) (a) MPC (but for causation) § 2.03(1) (b) – (4) MPC (proximate causation). See Markus D. Dubber, Criminal Law, Model Penal Code 128 – 141 (2002) as well as Wayne R. LaFave, Criminal Law (3rd ed.) 292 – 299.Google Scholar

54 For an excellent overview of the underlying structure of intentions and negligence see George P. Fletcher, Basic Concepts of Criminal Law, Chapter 7 (1998).Google Scholar

55 The most difficult task in this area was surely the distinction between dolus eventualis (a concept similar to the MPC's mental state of recklessness) and conscious negligence (the highest type of negligent behavior). See Krey, Teil II / Part II, No. 347 et. seq. Most noteworthy is the so called German “Aids Case” in BGHSt 36, 1.Google Scholar

56 An important difference between German and American criminal law is that Germany does not have a concept of strict liability, meaning that certain offenses impose criminal liability without regard to mental states. See § 15.10 NY Penal Law as well as § 2.05 Model Penal Code.Google Scholar

57 See, e.g., Markus D. Dubber, Criminal Law, Model Penal Code 74 – 76 (2002). Here, Dubber runs a comparison between two different cases involving different mental states of the perpetrator showing that the Model Penal Code might come to a different result than the German StGB with regard to the question of whether or not the perpetrator acted intentionally.Google Scholar

58 This Latin phrase describes a situation where the perpetrator confuses his intended victim. So if A has the plan to beat up B and as a matter of bad sight, say in a foggy night, hits C because he looks much like B in the dark, we would have a typical situation of an error in persona / objecto.Google Scholar

59 The situation an aberratio ictus has in mind is not so much confusing a victim but accidentally hitting another victim although the attack has been aimed at the designated victim.Google Scholar

60 Cf. George P. Fletcher, Basic Concepts of Criminal Law 156 (1998).Google Scholar

61 However, the book mentions and enumerates some justifications and excuses while it describes the three step analysis scheme. See Krey, Teil II / Part II, No. 210 et. seq.Google Scholar

62 Volker Krey, Teil I & II / Part I & II, Preface.Google Scholar