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Criminal Law Dealing with Hate Crimes

Functional Comparative Law- Germany vs. USA

by Christine Marie Shavers (Author)
Thesis LXI, 337 Pages

Table Of Content

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Contents
  • Acknowledgements
  • Translation Index of Selected Judicial Terms
  • Preface
  • Chapter 1 Methodical Introduction
  • A. The Term ‘Comparative Law’
  • B. Classification and Derivation of Comparative Law from other Disciplines
  • 1. Classification of Comparative Law as a “pure science”
  • 2. Comparative Law, a Part of Jurisprudence?
  • 3. Resume
  • C. Tasks and Aims of Comparative Law
  • D. Methods of Comparative Law
  • 1. Case Method and Scientific-Theoretical Comparative Law
  • 2. The Functional Method of Comparative Law
  • 3. The Delineation of Comparative Law to other Disciplines
  • Chapter 2 Preparatory Country Report
  • A. Choosing the Appropriate Reference Country
  • B. The U.S. Legal System
  • 1. The Common Law System
  • 1.1. Origin and Development of the Common Law in the United States of America
  • 1.2. Common Law in the United States of America as of today
  • 2. The U.S. Constitution
  • 2.1. Structure and form of the U.S. Constitution
  • 2.2. Separation of Powers
  • 2.3. Constitutional Powers
  • 2.4. Summary
  • 3. U. S. American Criminal Law
  • 3.1. Constitutional Base of Criminal Law
  • 3.2. Legislative Competence and Institution
  • 3.2.1. Federal Matters
  • 3.2.1.1. Federal Legislative Competence
  • 3.2.1.2. Federal Legislative Institution
  • 3.2.2. State Matters
  • 3.2.2.1. State Legislative Competence
  • 3.2.2.2. State Legislative Institution
  • 3.2.3. Summary
  • 3.3. Manifestations of Criminal Law in the United States of America
  • 3.3.1. Federal Criminal Law
  • 3.3.2. State Criminal law
  • 3.3.3. Summary
  • 3.4. Jurisdiction and Competence of Criminal Courts
  • 3.4.1. Federal Matters
  • 3.4.1.1. Federal Courts
  • 3.4.1.2. Applicable Federal Law
  • 3.4.2. State Matters
  • 3.4.2.1. State Courts
  • 3.4.2.2. Applicable State Law
  • 3.4.3. Summary
  • C. The German Legal System
  • 1. The Roman - Germanic Law System
  • 1.1. Origin and Development of Roman – Germanic Law in Germany
  • 1.2. Roman - Germanic Law in Germany as of today
  • 2. The German Constitution
  • 2.1. Structure and Form of the German Constitution
  • 2.2. Separation of Powers
  • 2.3. Constitutional Powers
  • 2.4. Summary
  • 3. German Criminal Law
  • 3.1. Constitutional Base of Criminal Law
  • 3.2. Legislative Competence and Institution
  • 3.3. Competence and Jurisdiction of Criminal Courts
  • 3.4. Manifestation of Criminal Law
  • 3.4.1. Enhancing Criminal Penalties according to German Criminal Law Doctrine
  • 3.4.1.1. Aggravated Statute
  • 3.4.1.2. Aggravated Ruling Example
  • 3.4.1.3. Transfer of the General Penalty Enhancement Methodology to the matter of Hate Crime
  • 3.4.2. Classification of Offenses
  • 3.5. Sense and Purpose of Penalty according to the German Legal Doctrine
  • 3.5.1. Absolute Penal Theory
  • 3.5.2. Relative Penal Theory
  • 3.5.2.1. General Prevention Theory
  • 3.5.2.2. Specific Prevention Theory
  • 3.5.3. Unification Theories
  • 3.5.4. Summary
  • D. Determination of the Legitimate Ambit of Criminal Law in Both Countries
  • 1. Purpose of Criminal Law according to the American Penal Theory
  • 1.1. Content of the American Penal Theory: Harm Principle
  • 1.1.1. Liberty-Limiting Principles
  • 1.1.1.1. Offense-Principle
  • 1.1.1.2. Legal Paternalism
  • 1.1.1.3. Legal Moralism
  • 1.1.1.4. Summary
  • 1.1.2. Result: Harm-Principle as Main Principle among Possible Others
  • 1.1.2.1. Word Meaning of ‘Harm’ in the Context of the Harm Principle
  • a) Setback of Interests
  • b) The Need to “Wrong” the Other
  • c) Violation of Rights
  • 1.1.2.2. Summary: Word Meaning of ‘Harm’ in the Context of the Harm Principle
  • 1.2. Summary: Content of the American Penal Theory: Harm Principle
  • 2. Purpose of Criminal Law according to the German Penal Theory
  • 2.1. Content of the German Legal Good Theory
  • 2.1.1. Inbuilt or System-Critical Understanding of the Legal Good Doctrine
  • 2.1.1.1. Inbuilt Understanding of the Legal Good Doctrine
  • 2.1.1.2. System-Critical Understanding of the Legal Good Doctrine
  • 2.1.2. Intermediate Result: System-Critical Understanding of the Legal Good Doctrine
  • 2.1.3. Individual- and Collective Goods
  • 2.1.4. Substantiality of the Term Legal Good
  • 2.1.5. Intermediate Summary
  • 2.1.6. Linking the Legal Good Theory to the Social Theory
  • 2.1.7. Constitutional Guideposts
  • 2.1.8. Result of a Critical Understanding of the Legal Good Theory
  • 2.2. Result according the Content of the German Legal Good Theory
  • 3. Purpose of Criminal Law according to the American and the German Penal Theory
  • Chapter 3 Hate Crime in the United States of America
  • A. Course of Action
  • B. Emergence of the Hate Crime Concept in the USA
  • 1. The Hate Crime Concept and the Role of Social Movements
  • 1.1. Social Movements rumored to be the Author of the Social Phenomenon Hate Crime
  • 1.2. Propagation of the Term “Hate Crime” among American Society
  • 1.3. Hate Crime Legislation as Problem-Solving Approach induced by Social Movements
  • 1.4. Influence of Social Movements on the Wording and the Composition of Hate Crime Laws
  • 2. Clarifying the Role of Social Movements
  • 2.1. Social Problem “Hate Crime” - Real or Constructed?
  • 2.2. Propagation of the Term “Hate Crime” among American Society
  • 2.3. Hate Crime Legislation as a Problem – Solving Approach
  • 2.4. Influences on the Wording and the Composition of Hate Crime Laws
  • 3. Conclusion: Emergence of the Hate Crime Concept in the USA
  • C. Beginnings of Hate Crime Legislation
  • D. Effective Hate Crime Laws in the United States of America
  • 1. Federal Hate Crime Laws
  • 1.1. Civil Rights Legislation
  • 1.2. Hate Crime Statistic Act of 1990
  • 1.3. Violence Against Women Act
  • 1.4. Hate Crime Sentencing Enhancement Act of 1994
  • 1.5. Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act
  • 1.6. Conclusion of Current Federal Hate Crime Legislation
  • 2. State Hate Crime Laws
  • 2.1. The Launch of a Model Law
  • 2.2. Legal Formation of State Law
  • 2.2.1. Hate Crime Reporting Statutes
  • 2.2.2. Paramilitary Training Laws
  • 2.2.3. Legislation for Criminalizing Bias-Motivated Behavior
  • 2.2.3.1. Substantial Hate Crime Statutes
  • a) Substantial Hate Crime Statutes refering to previously Penalized Behavior
  • b) “Real” Substantial Hate Crime Statutes
  • aa) Cross Burning Legislation
  • bb) Intimidation Statutes
  • cc) State Civil Rights Laws
  • dd) Conclusion “Real” Substantive Hate Crime Statutes
  • 2.2.3.2. Sentencing Enhancement Laws
  • 2.2.3.3. Overview of Various State Laws and their provided Definition of Hate Crime
  • a) Alabama
  • b) California
  • c) Connecticut
  • d) Georgia
  • e) Louisiana
  • f) Virginia
  • g) Washington
  • 3. Ambiguity of Hate Crime Laws in the American Nation
  • E. Brief Look at the American Justification of Hate Crime Laws
  • F. The Standards set by U. S. Supreme Courts
  • G. Conclusion: Hate Crime in the United States of America
  • Chapter 4 Hate Crime in Germany
  • A. Historical Background of Hate Crime in its Social and Criminal Political Context (Brief Overview)
  • B. The Hate Crime “Concept” in Germany
  • 1. Early Beginnings of Data Collection
  • 2. Data Collection in the Present Day
  • 3. Comparison
  • 4. Operation of the Data Acquisition System
  • 5. Hate Crime Situation in Case Numbers
  • 6. Significance of these Numbers
  • 7. Result: German Hate Crime “Concept”
  • C. Legal Dealing with Hate Crime
  • 1. Draft Bill of Baden-Wuerttemberg Drs. 564/00, dated September 21, 2000
  • 2. Draft Bill of Brandenburg Drs. 577/00, dated September 26, 2000
  • 3. Draft Bill of Mecklenburg-Vorpommern Drs. 759/00, dated November 16, 2000
  • 4. Draft Bill of Brandenburg/Sachsen-Anhalt Drs. 572/07, dated August 20, 2007
  • 5. Draft Bill of the Federal Council Drs. 458/08, dated July 4, 2008
  • 6. Draft Bill of the Federal Council Drs. 17/9345, dated April 18, 2012
  • 7. Descriptive Summary and Evaluation of the Draft Laws
  • 8. Symbolic Reasoning of Hate Crime Law
  • 9. Comparison of the German Drafts with American Laws on Hate Crimes
  • 10. Conclusion Legal Dealing with Hate Crime
  • D. Judicial Dealing with Hate Crime
  • 1. Judicial Recognition of Bias-Motivation in Homicide
  • 2. Judicial Recognition of Bias-Motivation Apart from Homicides
  • 3. Hate Crime in the Light of Section 46 Penal Code
  • 4. Limited Verifiability of Judicial Sentencing Practice
  • 5. Conclusion
  • E. Parenthesis
  • 1. European Criminal Law Initiatives
  • 1.1. Demands of ECRI for Fighting Hate Crime
  • 1.2. Demands of the OSCE for Fighting Hate Crime
  • 2. Conclusion
  • F. Brief Review
  • G. Eligibility Check of Hate Crime Legislation according to German Criminal Law Doctrine
  • 1. The Enactment of a Substantive Norm to Punish Hateful and Bias-Motivated Criminal Behavior
  • 1.1. Possible Goods Protected by a Hate Crime Law
  • 1.1.1. Human Dignity of the Immediate Victim
  • 1.1.2. Human Dignity of the Victim’s Community
  • 1.1.3. Public Peace
  • 1.2. Priority of Protected Legal Goods
  • 1.3. Legitimacy of Hate Crime Legislation according to the Legal Good Doctrine
  • 1.3.1. Precepts of the Legal Good Doctrine
  • 1.3.2. Legitimization of Hate Crime Legislation according to the Social Theory
  • 1.3.3. Legitimization of Hate Crime Legislation according to Constitutional Provisions
  • 1.3.3.1. Constitutional Obligation to enact Hate Crime Penal Law
  • 1.3.3.2. Constitutional Criteria to Legitimize Hate Crime Penal Law
  • 1.3.3.3. Constitutional Restriction to enact Hate Crime Penal Law
  • 1.3.4. Jurisdiction of the Federal Constitutional Court
  • 1.3.5. Result
  • 1.4. Legitimacy of a Hate Crime Norm in Regard to the Protected Human Dignity
  • 1.5. Legitimacy of a Hate Crime Norm in Regard to the Protected Partial Aspect of Public Peace
  • 1.5.1. Ambiguity and Heterogeneity of the Legal Good Public Peace
  • 1.5.1.1. Meaning of the Objective Part of Public Peace in a Hate Crime Norm
  • a) General Legal Safety
  • b) Protection of Public Peace to Preserve the Current Social Climate
  • aa) Prevention of Vigilante Justice
  • bb) Prevention of Revenge Related Activity
  • cc) Exchangeability of Victims
  • dd) Prevention of Intergroup Relations
  • ee) Incited Climate
  • c) Intermediate Summary
  • d) Protection of a Tolerant Climate to Maintain the current Multi-Cultural, Pluralistic Form of Society
  • 1.5.1.2. Meaning of the Subjective Part of Public Peace in a Hate Crime Norm
  • 1.5.2. Current Protection of Public Peace by the German Penal Code
  • 1.5.3. Result: Meaning of Public Peace in a Hate Crime Norm
  • 1.6. Hate Crimes and “Worthiness of Punishment“
  • 1.6.1. Disvalue of the Result
  • 1.6.2. Disvalue of the Act
  • 1.6.3. Intermediate Result
  • 1.7. Necessity of Punishment
  • 1.7.1. Necessity of Punishment with regard to Previously Established Criminal Norms
  • 1.7.1.1. Necessity of a Hate Crime Law with regard to the Existence of certain Criminal Norms
  • 1.7.1.2. Section 211 Penal Code
  • 1.7.1.3. Sections 223; 224; 226 Penal Code
  • 1.7.1.4. Section 46 Penal Code
  • a) Hate Crime Motives: Part of the Wrong or the Culpability of an Offense
  • b) Culpability Addressed in Section 46 Penal Code and the Influence of the Bias Motive
  • c) Hate Crime Motives are Different
  • d) Result According the Reach of Existing Standards
  • e) Necessity with Regard to the German society
  • 1.7.2. Intermediate Result
  • 1.8. Characterization of a Hate Crime Law
  • 1.8.1. Differentation of Injury Torts and Non-Result-Constituted Offenses
  • 1.8.1.1. Sensational Features as Supplementary Elements of Criminal Liability
  • 1.8.1.2. Frequency and Severity are no Criminality Prerequisites
  • 1.8.2. Intermediate Result
  • 1.9. Summary According a Separate Offense
  • 1.10. Prerequisites of Penalization of Hate Crime
  • 1.10.1. Objective Constituent Elements of a Norm
  • 1.10.2. Protected Characteristics
  • 1.10.2.1. Immutable or Fundamental Characteristics
  • 1.10.2.2. Social and Historical Context
  • 1.10.2.3. Excluded Characteristics
  • 1.10.2.4. Implementation Issues
  • 1.10.2.5. The Protection of Persons Affiliated with Principal Hate Crime Victims
  • 1.10.2.6. Conclusion
  • 1.10.2.7. Defining the Motive in Regard to Consequential Differences
  • 1.10.2.8. Drawn Precepts of the Racial Animus- and the Discriminatory Selection Model for Implementation
  • 1.10.2.9. Unimportant Error in Persona
  • 1.10.2.10. Conclusion
  • 2. Further Possibilities of Explicit Implementation of Hate Crime Legislation
  • 2.1. Aggravated Statute
  • 2.2. Implementation of Aggravated Exemplified Rules
  • 2.3. The Enactment of a Rule for Judicial Penalty Assessment
  • 2.3.1. Scope of Culpability that Could be Addressed by such a Regulation Technique
  • 2.3.2. Legislator’s Duty of Providing the Abstract Penal Frame in Regard to the Type of Crime
  • 2.3.3. Hate Crime Enhancement - a Decision of a Court drawn in Equity and Good Conscience
  • 2.3.4. Hate Crime Motives are to be Differentiated from Such Exemplarily Named in Section 46 Penal Code
  • 2.4. Implementation of an Extra Rule in the General Part of the Penal Code
  • 3. Final decision
  • 4. Summarizing Aspects
  • German Abstract
  • Bibliography
  • Series index

← XVIII | 1 → Preface

This research deals with so-called hate crimes. This is the term for offenses that are not solely characterized by a particular motive, namely by hatred against the otherness of others, but by their different social importance in the external world. It is important to understand that these offenses are not only determined by a prejudiced offender motivation. In addition to the inner motivation of the offender they are characterized by objective criteria and adverse social impacts, not only on those who are directly attacked, but on the uninvolved public1. Therefore it is not about the punishment of the prejudiced perpetrator-personality, or of certain prejudiced attitudes and values2; the general idea of this offense category is the wrong- and culpability appropriate protection of legal goods.

This study aims to provide a contribution to the current issue3 on whether there is a need for an explicit legal recognition of hate crimes in the German Penal Code by examining findings from the current criminal treatment of hate crimes in the United States of America and Germany with the use of the functional method of law comparison. Within the context of the exploratory analysis of hate crimes, attention is quickly drawn to those legal systems that already have explicit norms to cover these offenses and which have been involved with the similar social problem more intense, or for a longer period of time, in order to, if possible, be able to gain from their knowledge and profit from their cognition. An examination of the legal situation in the United States reveals a variety of mechanisms enshrined in the country’s numerous legal texts to penalize xenophobia and discrimination. The United States, considered as the founder of the concept of ‘hate crime’4, provides a wealth of experience in terms of penalizing this form of crime. This country, a country of immigration, has always been challenged with the need to unite the coexistence of different ethnic groups. Hence, it is not surprising that a societal problem connected to human diversity, and the need for combating offenses based on disregard or contempt for each other, reaches a long way back in the United States5.

However, Germany is currently becoming a country of immigration as well, thus is becoming to be a multicultural society. Athough the United States is historically known for xenophobic and hate-motivated acts being a common phenomenon, the German society is an example of such victimization as well, ← 1 | 2 → even if the historical background may be different6. After all, the comparable level of civilization, the political organization of both countries and their highly developed constitutions suggest to choose the United States as an appropriate counterpart for comparison7 when aiming to find important prerequisites in the search for a solution to the problem of hate crime. Thereby, precisely the entirely different criminal justice systems and the possible cultural differences may be able to provide a supply of solutions for the respective other society. This comparative study focuses on the aim of possibly gaining a cognition in terms of how to legally deal with this sort of offenses by comparing the current criminal handlings of hate crimes in the United States and in Germany.

A thorough and insightful comparison with the legally chosen actions to combat hate crimes requires a preliminary examination of the term “hate crime”.

The term “hate crime” bears the risk of misconception8. “Hate crime”, “bias crime” or “hate-motivated crime” as well as “bias-motivated crime” are used interchangeably with the same meaning for the same phenomenon, yet the term “hate crime” is the common use9. The composition of both words, ‘crime’ defined as “an act committed or omitted in violation of a law forbidding or commanding it and for which punishment is imposed upon conviction”10 and ‘hate’ described as a feeling of “hostility or animosity towards”11, leads to the understanding of ‘hate crime’ as an act, evoked by “hostility or animosity” towards the victim, which is “committed or omitted in violation of a law forbidding or commanding it, and for which punishment is imposed upon conviction”. “Hatred as an emotion of extreme dislike or aggressive impulses towards a person or group of persons”12 can be the trigger for racial motivated violence, but is also the trigger for revenge crimes, thus for most so-called crimes of passion13. This literal construction of a definition would completely leave out the key element of the perpetrator’s bias or prejudice toward the victim which constitutes the here relevant crime. Hate crimes are about hate, but not towards the victimized individual, but towards his or her inherent characteristics14. Therefore, hate crimes are best described with the ← 2 | 3 → explanation that such crimes “occur not because the victim is who he is, but rather because the victim is what he is”15. With that said, hate-based or hate-motivated conducts constitute a hate crime in the here used sense only if this hatred is connected with antipathy for a racial, ethnic or religious group16, or for an individual because of his membership in that group17; accurately speaking, a hate crime is an offense that is committed because of feelings of racial animus or hate towards the victim because of his or her actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, homelessness, or sexual orientation.

According to this opinion, the correct term results from common linguistic, literal and judicial usage and “hate crime” is the main denoting expression. This is why, regardless such reasons of clarity, within this work the prevailing legal terming18 as well as the societal and medial main label is adopted19. Whether a designation is correctly applied is not about the literal interpretation, but about its meaning referring to its actual usage. It finally depends on how it is applied and therefore understood by the overall majority in literature20 and especially throughout society21, not what its label intends to mean if understood literally22.

It is crucial to bear in mind that “hate crime” do not refer to particular offenses. It could be an act of intimidation, threat, or assault - therefore directed at a human being - as well as directed against property; in this second case forming an offense of property damage, arson or any other criminal relevant act. Thinking of terrorism, gang violence or other organized - for instance - political violence, or even war23 it becomes obvious that all these acts are motivated by hate and prejudice, or at least group affiliations of the targets to a group which the tortfeasor wishes to harm, but such should not be addressed by the here discussed hate crime concept. So as opposed to governmental controlled acts or bias-motivated criminal acts of large political factions, hate ← 3 | 4 → crimes refer to “[…] acts, committed by individuals or small groups, in which the victim was targeted primarily because of his or her [real or perceived] group [affiliation]”24.

For the presentation of a prefixed, broad working definition, the main featuring characterizations of hate crimes are to be presented. Lawrence states two broad categories of crimes, the first broad category contains all crimes committed without regard to any personal characteristics of the victim25. The second broad category contains all crimes committed precisely because of the victimized person himself. Since in this second category, the victim is attacked because of who he or she is, the victim is not interchangeable26. Such crimes are committed because of emotions, thus hate, retribution, and suchlike towards the victim and result from interpersonal relations and therefore are usually committed between socio-biographic similar persons27. However, the here relevant crimes differ from both categories. Unlike the first category, hate crimes are crimes in which certain identifiable characteristics of the victim are critical to the perpetrator’s choice of attack. Unlike the second broad category, the here discussed criminal conducts are crimes in which the individual identity of the victim is irrelevant28. Therefore, the victim of a hate crime is interchangeable with any other person who shares a certain way of being29. The perpetrator is willing to replace his (initial) target with any other person, who - in his eyes - is of a descent or of an origin that deviates from his own, who shares religious beliefs or appears to be of a race that does not match his. This becomes clear if considering that the offender of a hate crime usually does not even know his chosen victim30. The fact that hate crimes are usually committed among strangers31, furthermore, the committal is even stimulated ← 4 | 5 → through the anonymity between the offender and his victim32 - as in opposite to usual passion crimes which take place among relationships33 - additionally distinguishes hate crimes from other crimes.

A key element of hate crimes is their capacity of sending a symbolic message and thereby symbolizing the victim34. It is claimed that by the committal of a hate crime a message is sent to the victim and to all persons who share those for the attack relevant characteristics of the immediate victim. This message states: You all are neither welcome in ‘this’ society, nor safe35. Therefore, hate crimes are said to have the effect of denying the victim’s right to full participation in society36. Moreover, the community sharing the characteristic of the attacked person is automatically addressed as well, yet not in the practical (physical) sense but through the message which reaches them, enunciating that they are under attack because of being likely-created beings. The victim is chosen as a symbol for the attack of far parts of society, of all those who share the victim’s actual or perceived characteristic37. The fact that hate in this sort of crime does not occur from prior personal relations or from personal contacts, but from the perpetrator’s bias towards a kind of human being or certain characteristics, leads to the circumstance that the immediate attacked target is chosen randomly by an offender to be an object of hate38; thus latent potential hazards are created for certain people, which could intensely disturb the peace in a society as to be examined in this work.

The ordinary concept of hate crime is a “two-tiered crime”.39 This means that it requires two elements: a criminal offense committed with a bias motivation. The criminal offense refers to an act, which on its own is penalized by criminal law; indifferent whether it is an offense against person or property40. This first ← 5 | 6 → element of a hate crime is referred to as the “base offense”41; “parallel crime”42 or “underlying crime”43. The second part of a hate crime is said to result from the fact that the offender committed the criminal act for reason of prejudice or bigotry based on the victim’s real or perceived membership in a legally recognized protected status, which would typically be race, ethnic origin, religion and any other similar common factor, which the legislator chooses to be in need of enhanced protection. It is significant for such a characteristic to be shared by a group that is historically and actually known for being a cause for discriminatory singling out, whereby with “historically” it is referred to the particular history of the society which is concerned. Yet, this generally understood concept of the “two-tiered” crime of a hate crime is redefined, or at least defined down, during this work. All in all, the second element of a hate crime, the bias-motivation, is not the only reason for the differentiation of hate crimes from ordinary crimes. Hate crimes are more than ordinary crimes which are modified through the bias-motivation of the perpetrator; they are different due to their changed social significance. Thus, even a behavior which, without the knowledge of the xenophobic, homophobic, etc. background, would present itself as harmless may create a criminal relevant form of threat. Hence, behavior may constitute a criminal offense, if it -due to its outward form, which it receives by reason of the offenders motivation- recognizably injures a certain part of the people of society44.

Hate crime is more a concept than a specific crime category. The term “hate crime” neither necessarily refers to a specific type of offense, nor to special laws but to a concept of combating bias-motivated criminal activity on the legal level, and above that, even far before it reaches legal involvement. According to this conception hate crime legislation covers statutes which require authorities to collect data on hate- or bias-motivated crimes; legislation that mandate law enforcement training, prohibit the undertaking of paramilitary training, specify parental liability, provide for victim compensation and laws prohibiting the wearing of masks and hoods45. Within this dissertation, the focus is directed to criminal law; as the term ‘hate crime law’ intends, the attention is put on criminal statutes which impose penalties for harmful behavior induced by bias against the other. Consequently, “to qualify as a hate crime law, a […] statute must criminalize, enhance penalties for, or amend existing statutes regarding [offenses] motivated by bias toward individuals or groups based on particular status characteristics […]”46. In order to fulfill these requirements a law must imply one of the named state policy actions, explicitly ← 6 | 7 → refer to the subjective intention of the perpetrator47 and it must name a list of legally recognized and by the statute protected social statuses48.

Subsequent to this introduction the basic principles of the applied methodology are presented. Hereinafter, the political organization of the United States, with its advanced Constitution, and the foundations of the U.S. legal system are illustrated briefly in order to provide a basis for comparison and for the then following presentation of the social problem in its existence which it has in the American society. This presentation takes place by examining how the U.S. legal order currently protects its citizens from attacks motivated by “disregard or contempt because of their, determined in factual or fictional group characteristics, identity”49. Thereafter, the current German legal situation of combating hate crimes is analyzed, including the actual classification of such offenses by the German law and bethinking how the capturing of this sort of offense could be optimized by German law.

Legal decisions, judicature and literature were considered until December, 2012. ← 7 | 8 →

1Schneider, Kriminologie der Hassdelikte. Konzeptionen, Ursachen, Vorbeugung und Kontrolle, in: Bewährungshilfe, 2003, p. 117; Schneider, Politische Kriminalität: Hassverbrechen, Fremdenfeindlich-keit im internationalen Kontext, Kriminalistik 2001, p. 22.

2Schneider, Kriminologie der Hassdelikte. Konzeptionen, Ursachen, Vorbeugung und Kontrolle, in: Bewährungshilfe, 2003, p. 117; Schneider, Politische Kriminalität: Hassverbrechen, Fremdenfeindlichkeit im internationalen Kontext, Kriminalistik 2001, p. 22.

3View the current draft law of the Federal Council to amend the German Penal Code, April 18, 2012 (Drs.17/9345).

4Coester, Hate Crimes, 2007, p. 82.

5Coester, Hate Crimes, 2007, p. vii.

6Refer to the introductory text in Aydin, Die strafrechtliche Bekämpfung von Hassdelikten, 2006.

7Refer to the introductory text in Aydin, Die strafrechtliche Bekämpfung von Hassdelikten, 2006.

8Perry, Where do we go from here?, p.1; Unfortunately the term Hate Crime does not explain itself. (Jacobs/Potter, Hate Crimes, Criminal Law & Identity Politics, p. 27).

9Perry and Lawrence use bias crime (Lawrence, Punishing Hate, 1999; Perry, In the name of hate, 2001). Charkraborti, Gerstenfeld, Jennes and Grattet, and far more prefer the term hate crime, however, the distribution of the favored wording within literature more or less mirrors the designation used by the public. Even though the term bias crime would be more correctly, the term hate crime prevails. According to Perry, the reason for this is that the term hate crime branded itself on the societal memory and therefore it is difficult to change this designation.

10http://www.thefreedictionary.com/crime - accessed 2011/09/09.

11Further held definitions as “to dislike or wish to avoid; shrink from” or “to have strong dislike or ill will for; loathe; despise” does not make a difference for the here to be understood subject. (Neufeldt & Guralnik, Webster´s new world college dictionary (3rd Ed.), 1997, p. 617; http://www.thefreedictionary.com/hate - accessed 2011/09/09.

12Sternberg, The Psychology of Hate, 2004, p. 37.

13Lawrence, Punishing Hate,1999, p. 9.

14It is elementary to emphasize that the key factor of those here relevant crimes is not the perpetrator´s hatred of the victim per se, but rather his bias or prejudice towards the victim. It is considered that hate can be distinguished in two forms: a rational hate and a character-conditioned hate. While rational hate grounds on a verifiable basis and bears upon the relation between the offender and his chosen victim, the character-conditioned hate misses comprehensible base. Due to character-conditioned hate an entire target group is chosen (randomly) to be the object of hate and aggression. (Fromm, Anatomy of human destructiveness. 1992; Sternberg, The Psychology of Hate, 2004, p. 38)

This makes character-conditioned hate so dangerous, neither could the victim influence his victimization in any way nor has the specific victim-selection taken place in any other rational way, thus it is not preventable, concerning this more later in this dissertation.

15Lawrence, Punishing Hate, 1999, p. 9.

16Race, ethnic and religion are named exemplary and do not raise any claim to completeness.

17Lawrence, Punishing Hate, 1999, p. 9.

18View, for instance, “Hate Crime Statistic Act” which was enacted on April, 23rd 1990.

19Interchangeable usage with bias crime included.

20Altschiller; Hate Crimes, 1999; Coester, Hate Crimes, p. 22; Favoring bias crime over Hate Crime: cf. Lawrence, Punishing Hate, 1999.

21Perry states, that the terminology hate crime is in the minds of society and not able to be rejected. (Perry, In the name of hate, 2001).

22Many crimes which are motivated by hatred are not categorized as hate crimes. Murders, for instance, are often motivated by hatred arousing from previous relationship, but these are not considered as hate crimes, unless the victim was chosen because of a protected characteristic. The term hate crime is particularly used for crimes that are motivated by hateful bias and prejudice against legally protected characteristics which the victim inheres od the perpetrator perceives the victim to inhere. Therefore, hate crime is the correct term to use for the here relevant offenses, its literal translation is not of relevance.

23Gerstenfeld, Hate Crimes, 2004, p. 9.

24Gerstenfeld, Hate Crimes, 2004, p.10; Further official definitions applied in the United States of America: The FBI follows the federal general definition of hate crime to be a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, ethnic origin or sexual orientation.” (http://www.fbi.gov/about-us/investigate/civilrights/hate_crimes/overview - accessed: January 2012); NY CLS Penal § 485.05 defines hate crimes as specified offenses committed against persons intentionally selected “[…] because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct […].”; NY CLS Penal § 485.05 defines hate crimes as specified offenses committed against persons intentionally selected “[…] because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct […].” (Illinois 730 ILCS sec. 12-7.1 Hate Crime); The Hate Crime Statistic Act refers to “[…] crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity, […].” (Public Law 101-275).

25Lawrence exemplarily states random muggings, drive-by shootings as all killings out of lust to kill and most robberies and burglaries, out of a wide array of crimes, which, for instance, also includes crimes in which the choice of the victim is dictated solely by the requirements of the crime; for example, “the bank teller is assaulted as a means of robbing the bank, not because of any individual characteristics of the teller”. (Lawrence, Punishing Hate,1999, p. 9).

26This second broad category of crimes refers to most passion-crimes, thus crimes committed of revenge and hate. (Lawrence, Punishing Hate,1999, p. 9).

27Kunz, Kriminologie, pp. 238, 239; Tschaggelar, Hate Crimes und Hasskriminalität, p. 9.

28Lawrence, Punishing Hate, 1999, p. 9.

29Likewise, although in-artfully expressed by Seehafer: “However, the difference lies in the fact that the victim falls into a bogeyman of the offender and therefore is attacked, thus, in this respect, it is precisely not randomly or optionally interchangeable.” (Seehafer, Strafrechtliche Reaktionen auf rechtsextremistisch/fremdenfeindlich motivierte Gewalttaten, p. 69 - emphasis added by underlining).

30The offender and his victim usually never had personal contact. (Cf. Perry, In the name of hate, p. 29)

31Schneider, Hassverbrechen, in: Schneider, Kriminologie für das 21. Jahrhundert, p. 76.

32Eisenberg, Kriminologie, 2005, p. 897; Tschaggelar, Hate Crimes und Hasskriminalität, p. 9.

33Kunz, Kriminologie, pp. 238, 239.

34Therefore, Hate Crime are called “message-crimes”. (Füllgrabe, Hassverbrechen, Kriminalistik, 2004, pp. 391-397 (394); Schneider, Politische Kriminalität: Hassverbrechen, Fremdenfeindlichkeit im internationalen Kontext, Kriminalistik 2001, p. 26; Schneider, Kriminologie der Hassdelikte Konzeptionen, Ursachen, Vorbeugung und Kontrolle, in: Bewährungshilfe, 2003, pp. 115,117; Schneider, Hasskriminalität: Eine neue kriminologische Deliktskategorie, JZ, 2003, pp. 497-504 (498); Schneider, Hass- und Vorurteilskriminalität, in: Grafl/Medigovic, (eds.): Festschrift für Manfred Burgstaller, 2004, pp. 553-568, (555); Singer, Erfassung der politsch motivierten Kriminalität, in einem neuen Definitionssystem mit mehrdimensionalen Analysemöglichkeiten, p. 34; Wallace, Victimology, 1998, p. 216).

35Hate Crime Laws: A Practical Guide, published by the OSCE Office for Democratic Institutions and Human Rights (ODIHR), 2009; p. 17.

36Hate Crime Laws: A Practical Guide, published by the OSCE Office for Democratic Institutions and Human Rights (ODIHR), 2009; p. 17.

37Also refer to footnote 14. This fact makes “character-conditioned hate” so dangerous, neither could the victim influence his victimization in any way nor has the specific victim-selection taken place in a rational manner, thus this sort of victimization is not preventable.

38Within the for bias-motivated offenses relevant form of hate, called “character-conditioned hate”, target groups are chosen to be objects of hate. (Fromm, Anatomy of human destructiveness. (1992); Sternberg, The Psychology of Hate, 2004, p. 38).

39Lawrence, Punishing Hate, 1999, p. 93.

40Because there are small variations in legal provisions from state to state, there are some divergences in the kind of conduct that amounts to a crime; but in general most states criminalize the same type of violent acts. However, if a hate crime can be constituted, depends on the penalization of the underlying offense, thus is based on the presence of the legal prerequisite established in the penal code of the competent state (unless the federal government is competent, for requirements of federal authority view above).

41Hate Crime Laws: A Practical Guide, published by the OSCE Office for Democratic Institutions and Human Rights (ODIHR), 2009; p. 16; http://www.osce.org/odihr/36426; accessed: January 2011.

42Lawrence, Punishing Hate, 1999.

43Gerstenfeld, Hate Crimes, 2004.

44This applies tp cross-burning legislation; The for others visible smearing of swastikas on own goods, etc.

45Jenness/Grattet, Making Hate a Crime, 2001, p. 73.

46Jenness/Grattet, Making Hate a Crime, 2001, p. 77.

47This refers to the motive of the offender for committing a crime. The motive must be bias or hate towards the victim’s legally protected status characteristics which are specified by the statute.

48Jenness/Grattet, Making Hate a Crime, 2001, p. 77.

49Coester, Hate Crimes, 2007, p. viii.

← 8 | 9 → Chapter 1 Methodical Introduction

A. The Term ‘Comparative Law’

Comparing one’s own legal system with foreign legal systems provides possibilities of learning from other legal cultures and thereby enhances the legal framework of the former50. There are 42 legal systems in the world51; hence, there is plenty of material that may be used to conduct research in Comparative Law52.

In order to understand the term Comparative Law one must understand its component words. “To compare” means ”to mark or point out the similarities and differences of (two or more things); to bring or place together (actually or mentally) for the purpose of noting the similarities and differences”53. Law is defined as “a rule of conduct imposed by authority”54 or, rather, as “the body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects”55. This imposition of rules is an ubiquitous establishment of all societies throughout the world56. Since it is promulgated individually, it exists in a variety of forms, shaped by its social surrounding due to assimilating the features which the particular community asks for57. According to that, Comparative Law may be defined as the collation of similarities and differences between legal systems. In this respect, the term Comparative Law is misleading58 because conducting comparative law research requires compliance with certain rules. If a study is labeled as a comparative law research, a recognized method must be followed in order to achieve the general aim of “cognition”59.

If the essence of Comparative Law is “the research of truth”60 through the “creation of a stock of legal solutions”61 acquired by means of comparison, it ← 9 | 10 → can be said that Comparative Law “describes the systematic study of particular legal traditions and legal rules on a comparative basis”62.

Since comparing institutions within one’s own legal framework is the everyday business of jurisprudence63, a study in the context of Comparative Law must include rules of at least two different law systems in order to find and analyze similarities and disparities in the two by means of contrast64. Contrary to opinions saying that Comparative Law does not need a comparative element in the sense of comparing65, it is assumed that a side by side holding of different legal systems reveals similarities and disparities66 between such, which then must be explored at least to some degree, in order to establish a connection between them (e.g., one’s own legal system and the one of interest). Only by analyzing similarities and differences, and perhaps even exploring the reason for such, one is able to draw a conclusion in order to gain a profit in cognition concerning the respective law as such or concerning a specific initial question. This intellectual challenge makes Comparative Law a scientific task67. As it is shown below, the scientific component varies in dependence on which form of Comparative Law is chosen. But regardless of a certain variety, the matter of Comparative Law as such must be correctly understood and existing rules must be strictly followed in order to achieve useful results in consequence of its application.

← 10 | 11 → B. Classification and Derivation of Comparative Law from other Disciplines

The following deals with the question of what is the nature of comparative law68.

1. Classification of Comparative Law as a “pure science”

Comparative Law, described as a mental process, which deals with law and contains comparison69, does not clarify the nature of the scientific approach. The study of Comparative Law follows its own specific rules. It has its own functions, which differ from the function of law as such and exceeds the purpose of an ordinary drawn comparison. Since sociology has an impact on many approaches of law comparisons, Comparative Law has been referred to as a social science70. However, Comparative Law is not a social science71. The material collected through comparison “forms part of a separate body of knowledge”72: Knowledge regarding law. Therefore, Comparative Law is too interlocked with the science of law to be called a social science and necessarily too interlocked with the science of law to be called a “science pure”73. Since law is the object of critical scrutiny, it better matches the opinion that Comparative Law is a separate scientific discipline within the study of Law74. Referring to the meaning of the term ‘Comparative Law’ there is no need to point out that the most important ingredient of this scientific approach is law. The term as such reveals the relationship: the ‘Comparative’ in its adjectival function serves the noun ‘Law’. Nothing else applies to the semantic level of the meaning of this term: Comparative Law serves law by aiming at enlightening the entire legal sector by drawing comparisons.

2. Comparative Law, a Part of Jurisprudence?

Jurisprudence as the science of law is the general term for many areas of law, such as public law, criminal or civil law and so on.

It is common to group the rules of a society into areas depending on their specific subject. For example, rules for combating criminal behavior belong to the branch of criminal law while rules which address the state are classified as public law. Essentially, Jurisprudence is an academic science which teaches judicial thinking75. It is the effort to understand law by understanding the rules ← 11 | 12 → of a legal system. Understanding rules includes knowledge of their meaning, their implementation and their function for the addressed society. Law must be understood in order to create it and consequently, to apply it. In order to understand law different branches of a legal system76, usually of one’s own, must be studied intensively. Besides private or civil law, one must usually delve into branches such as criminal law, public law, historical law, economic- and social law and so forth77. Studying and practicing in the field of law means looking at a specific problem in order to find the right solution by examining various legal regulations offered by a legal code. This solution never emanates from the implementation of a single rule but from the interaction of the right combination of rules. If trying to order Comparative Law beside the categories of public law, civil law, criminal law and so on, it can be seen that it does not fit throughout these exemplary named areas78. Even if interpreted as a body of law in the sense of including all areas of a legal system79 it does not suit to be considered a category of law because it misses an own substantive type of law, a “body of rules”80; instead it rather affects all branches of law. If one proposes to compare the criminal law system of two countries the knowledge of criminal law of both countries is a necessary precondition81. Therefore, a law comparison builds up on an existing area of law. Which area depends on the chosen theme of the comparison and therefore is exchangeable. What is definite is the way of dealing and handling the chosen area of law, so Comparative Law is more a form of activity, a way of exploring law, like a working technique.

An interaction of legal regulations throughout the different areas of law enables a wider insight into law and creates general legal knowledge, which is necessary to establish a judicial understanding. Since judicial understanding is the result of intensive study of legal regulation, the focus lies first – and often only – on regulations of one’s own legal system. But there is no need to point out that the more branches of law one looks into and the more various handlings of legal problems are understood, the more inner relations and universal orderliness can be sensed and therefore a generally deeper and better understanding of the subject of law can be achieved. This could happen for instance by examining actual legal solutions to a concrete problem which different legal systems provide82, in order to then critically weigh which solution seems best to address the concrete situation of one’s own society at this specific moment83 Thereby the nationally effectuate solution is clearly outlined and the sense for the own legal system can be understood in its whole ← 12 | 13 → purpose84. This would qualify Comparative Law as an academic pursuit or a method of study and research85, yet neglecting all the other purposes a law comparison could aim at. Besides being an academic discipline, thereby serving as a means of understanding legal rules, Comparative Law serves as an aid to law reform by being a tool for creating new law or unifying and harmonizing various legal systems by delivering a preparatory examination and therefore serving as a preparative operation86; or it is a great utility to legal science by researching historical developments of various legal systems due to discovering or examining legal evolutions (evolution of laws)87. The examination by Comparative Law is deeper than what usual studying affords. It requires a different way of delving into law. Due to its combination of studying areas of one’s own legal system and those of foreign ones and putting them into a purpose-build of whatsoever specified relation a new composition arises which, according to its individual content, deserves a separate classification. Since Comparative Law moreover can be identified by an intellectual content, it involves more than just putting two different provisions next to each other and comparing them in the usual sense of comparing. Comparative Law is not just a “systematic procedure by which a complex or scientific task is accomplished”88, hence, not just a technique, but since it describes a certain dealing and handling with law including international elements it could be named an “international legal practice”89 or in general “a method of Jurisprudence”. A method is generally referred to as “a special form of procedure adopted in any branch of mental activity, whether for the purpose of teaching and exposition, or for that of investigation and inquiry”90. It is hard not to identify Comparative Law as a method91 since it is an approach which follows its own (and therefore) special rules in the branch of law and, depending on the aim of the comparatist, even fulfills all possible elements of the definition: according to its task in academic science the purpose of teaching is made clear above. The purpose of the exposition comes easy when systematically illustrating legal systems, whereas the purpose of investigation and research are essential precepts in order to find similarities and differences.

3. Resume

Comparative Law is not to be classified as a “science pure”92. Since it is not based on a specific and therefore distinct body of rules, but related to a special theme of law: systematic comparison, it perfectly fits in the discipline of jurisprudence. Thereby it has the potential to create new law in existing areas ← 13 | 14 → and thus can be defined as “rules and practice proper to a particular art”93 and therefore constitutes a method of Jurisprudence, a method of dealing with law.

C. Tasks and Aims of Comparative Law

The general aim of every comparative study of law, regardless of which method is chosen, is ‘cognition’94 or ‘the research of truth’95. Driven by interest in another legal culture96, there is always some sort of enhancement expected for the legal system of the researcher.

In order to be classified as Comparative Law, a study not just has to follow a recognizable method, it must also be in pursuit of a purpose which can be achieved with respect to one of the various functions of Comparative Law. Comparative Law is used for scholarly purposes, legislative functions97 or for reasons of scientific research.

For the purpose of scientific research various types of studies are on hand, for instance, studies ascertaining similarities and differences between legal systems, studies investigating the causal relationship between different systems of law, and those analyzing solutions to a given legal problem which various systems offer, further studies referring to the historical development of law or evolutionary history98.

D. Methods of Comparative Law

Comparative Law is the generic term for different ways of comparing law. There are only a few approaches that are actually acknowledged for comparing law. However, it does not depend on what method a study pretends to apply, the decisive factor is its compliance with given principles so that one of the following approved variants of Comparative Law is ascertainable.

1. Case Method and Scientific-Theoretical Comparative Law

The initial point for applying the case method is a statement of affairs, a real life situation, or a legal problem that exists in a similar way in different societies as an initial point. Proceeding from the problem that is to be solved, one compares the solutions that are offered in the respective countries. This approach is based on facts, starting with law cases one examines the available solutions that are judicial decisions99. In contrast to the functional method described below, the relation between law and society is irrelevant. ← 14 | 15 → One does not aim at further cognition regarding the reason for the found similarities and disparities100.

The method of scientific-theoretical Comparative Law illustrates several law systems by summing up similarities and differences101 in order to find the better law102. Such a work could serve as a basis for decision-making for the legislator103 or act as stimulus for “borrowing”104 institutions from another legal system, thus implementing “legal transplants”105. The better the law system of a country, the more advantage it brings for other societies. Not least because of this, there is always a competition with other nations of having the better law106 in order to achieve a locational advantage107. Studies which focus on comparing the developments of various legal systems or of discovering nationwide legal evolution generally108 may proceed in a descriptive theoretical way. If an explicit illustration of similarities and differences remains undone, such a research still qualifies as Comparative Law because mentally drawn comparisons are essential in order to come up with results according to the initially mentioned aim.

2. The Functional Method of Comparative Law

Comparative Law has many manifestations; the main one is the one of functionality109. The principle of functionality pervades the comparison at every step, all the way to the finish. At every step of this method of comparison, functionality reveals itself in a distinct manifestation110.

Usually functionality is referred to as a principle111. However, since Comparative Law is understood as a method, speaking of functionality as a ← 15 | 16 → method112 would engender a method within a method113, thus bereft the later of its meaning. So for the sake of conceptual clarity, “functional method” here refers to a comparative method whose subject is analyzed using the principle of functionality114.

The premise of the functional method of Comparative Law is the notion that each society addresses similar problems, which must be solved by the law of the respective society115. Law and society are related in so far that law fulfills a function by offering a solution to existing problems and giving an answer to social or economic needs116. The functional method of Comparative Law is essentially a factual method. The starting point is a real life situation which forces a legal system to react. It is based on facts.

While problems may be similar in every society, the particular way of how they are solved is to be discovered in the process of comparison. Hence, the initial point for comparison is a certain problem117, which exists in a similar way in the societies, whose legal systems are to be compared. With this as point of departure, the solutions offered in the respective countries are compared. Since the problem is the basis of the functional approach, the legal systems are not investigated in terms of form118. Non-statutory regulations are in focus, but its effects in relation to the initial problem of specific society. Therefore, rules are comparable if they fulfill the same function, i.e., solving a specific problem which is common to both societies. Function so far stands for the relation between solutions and problems119. Functionality itself aims at explaining the effects of solutions on problems and society.

The first step of comparison is to find a problem which is to be solved by legal institutions. It is necessary to define the specific social problem which is to be investigated; therefore the term by which the original question is phrased has to be purely functional120. The problem has to be named without using the legal expression of any law system. It must be especially freed of expressions from one’s own system in order to detect its underlying content independent of an understanding in conjunction to a legal solution. Therefore it must be extracted from any legal context and determined in the form in which it actually ← 16 | 17 → exists in the individual society121. This enables one to seek for the counterpart in the foreign society and to make sure it is truly the same or, at least, basically similar122 to the problem existing in one’s own society. The underlying assumption that the needs and problems of societies are universal qualifies the problem as the denominator of comparison, while the comparables are the institutions which are marked as solutions. It follows that function itself serves as a tertium comparationis. Tertium comparationis as “the third part of the comparison” is the quality that the two things which are being compared have in common123. The next step of the comparison requires choosing the legal systems for comparison. Choosing a legal system as a comparable, presupposes that one has an idea which counterpart seems most fruitful according to the specific aim of the comparatist. In principle, comparing one thing to any other thing is possible124, yet this says nothing about the usefulness of a comparison. Partly, a distinction is made between intra- and intercultural law comparison. A different method should be chosen when comparing societies of different socio-cultural types, one which focuses more on the social context125. Some want to exclude certain sections of law which are influenced by moral- and religious thoughts and thus differ between societies126. Others prefer to compare only legal systems of societies, which are on similar levels of development127.

With respect to the matter of functionality, the choice of the comparable legal system depends on the purpose of the comparison128. Do the legal systems which are to be compared share the same function, in the meaning of being functionally equivalents? Do they, in its principal coincide in remit, approach and typology with one another129? If not, is it able to overcome these differences in terms of transferability of possible solutions? If both countries share the same function, at least according the relevant aspects of comparison, there is a common denominator for a valid comparison.

After one has chosen the relevant societies, the next step is to search for solutions to the chosen problem provided by the compared societies. Since the starting point of all functional comparison is a problem, a real life situation, a solution can be provided not only through a legal rule (law in the books) and ← 17 | 18 → not only in their application (law in action) but through a non-legal answer130. This results from the fact that functional comparative law does not focus on formal requirements of the comparable in foreign law but on how foreign law operates in the area of law in question131. Considering this, one might have to look beyond legal rules to find possible functional equivalents132. Rabel had the opinion that universal problems cause common results133. Zweigert/Kötz134 suggested even stronger that the comparatist shall assume that different societies have equal problems which leads to similar solutions. This praesumptio simultudinis reviews the advanced step in which the initial problem was determined: if an equivalent solution cannot be detected in another legal system, one must go back to the first step and check if the problem was not named functionally enough and the extent of the search might not have been wide enough135. Within this step it is suggested to build a systematic system and invent own terms by building wide general terms to cover different but functional similar terms136.

After drawing the comparison and knowing how the respective legal systems deal with their similar problem it seems that an evaluation and the decision according which solution serves best is the logical consequence137. After all the comparatist experienced the subject-matter at first hand and thus seems predestined to gain the laurels of the comparative work by providing the best solution. However, evaluating which solution is best in the manner of determining the better law138 is generally not accepted in the functional approach. Usually it is the main aim to reveal how well or not a legal rule fulfills its function in solving the specific addressed problem.139 Therefore, it is necessary to examine whether the effect which it is aimed by a norm is achieved in society140. However, at this point, this effect has not been the object of study within a comparative work. Even the recourse to existing ← 18 | 19 → material of empirical social research might not lead to the sufficient answer of the comparatist´s general question of which law is best. It might be that a better solution could not be chosen, because whether something is good or not often depends on value judgments or political decisions141. The effects of the same rule as such could differ from one society to another because such effects depend on the mentality of a society, on the culture of the people, lifestyle habits, economic and social conditions which are all influenced by the specific history of a nation and many more complex factors. Whoever wants a law comparatist “to be something of a functionalist, a sociologist, a historian, a political scientist and a contextualist142 all at the same time”143 certainly seems to misinterpret the sense of a legal comparative study. By accepting the possibility that a comparative work does not end with the word of advice which law to choose, a legal comparison remains in its best cause being a preparatory base144, serving a wide range of possible solutions out of which the legal authority is able to choose. The recognition of this service of a comparative study renders a valuation at the end as superfluous145. Therefore, the decision as to which way of dealing with the issue at stake is best has to be made by legal authority146.

To avoid misunderstandings, valuing at the end is welcome147. Moreover failure to show results from the achieved cognition would be unreasonable, but only with regard to the examined aspect of a rule, which lies in solving this one specific problem, leaving all other possible functions unconsidered. With this understanding the proposition that the valuation must “occur only upon the ← 19 | 20 → recognition of the primacy of the principle of functionality in the comparative method”148 stays respected.

The following opinion leads to the same result concerning the precept that a valuation which law is to be chosen within a legal comparison is not the general idea of a law comparison: It is opined that every legal rule has to justify its existence. Hence, not only the question what is the function of a rule in society is to be answered, but also if this function is being served properly, or if another rule would serve this function better149. This is done by illustrating the consequences which occur in case of keeping, abolishing or changing a rule150. However, this evaluation does not involve any opinion whether a rule should be changed, abolished or kept. That would be a matter for legal politics, but not for a law comparison151.

Since legal institutions are only being compared in regard to their functional relation to a specific problem, a decision whether a norm shall be abolished, kept or changed cannot be made at this point. In order to make this decision, a legal rule has to be examined as a whole. This would require investigating all other possible functions of a legal institution in order to evaluate its right to exist in the present form152. This extent of complexity reveals that an evaluation at the end, in terms of determining which norm is to be chosen for the own legal system, is not part of a law comparison but comprises a different task, involving many other, in the comparison not yet considered, aspects. Therefore, an evaluation stating what legislative changes are to be made at the end of a legal comparison based on the alternatives worked out for a given legal problem would not be thought out well and has to be omitted. In any case such an evaluation would be useful only in regard to the narrowed area concerning the one examined problem.

Law comparison according to the functional principle can be accomplished on different levels. On an abstract level, a comparison is drawn in a wider range via a comparison done on a deeper specified level. While in the first level legal systems are compared in all points, or at least certain points are compared en bloc, the second level of comparison scrutinizes detailed legal subjects.

Comparative Law done on the macro level takes place between more general or basic legal circumstances. General dealing and handling with law is being compared for example by comparing the frame of legal systems, the overall surrounding or basic principles on which a legal systems are built on. Also different methods of law could be compared not in relation to specific problems or subjects but showing up differences within the matter of law on the whole153. ← 20 | 21 → Therefore, abstract generic topics are chosen to be compared such as working techniques, tasks and functions of persons being involved in legal systems and so on.

On the micro level, specified legal dealings and handlings are compared. On this layer Comparative Law focuses on concrete problems and their legal localization. Comparison takes place on a deeper layer by specifying a concrete matter of comparison. While comparison on the macro level concentrates on different legal systems as such, comparison on the micro level concentrates on individual problems which are embedded in different legal systems. For example, when analyzing the legal handling of so-called hate crimes in a legal system, one would compare specific institutions and legal solutions to a specific problem in different legal systems and thus law comparison takes place at the micro level.

A strict separation of these two levels of comparison is not always possible because specific problems in foreign legal systems often can be understood only if the foreign legal system is examined as a whole154. In the example given of comparing law referring to hate crimes, the legal practice of the relevant legal systems need to be understood in order to fully compare the legal handling corresponding to the specific problem.

3. The Delineation of Comparative Law to other Disciplines

After the description of Comparative Law, one may be tempted to think of other disciplines of jurisprudence dealing with international legal systems. Comparative Law is necessarily separated from other branches which, at least, partly focus on foreign rules such as International Civil Law, International Public Law, Historical Law, Ethnological and Social Law, but especially International Law.

International Civil Law is not based on comparison. It solely answers the question which legal system is to be followed if a concrete case, which involves private individuals, includes foreign elements155. Therefore, it is about the implementation of national law in the case that foreign elements play a role. Comparative Law on the contrary is the examination of own and foreign law by interrelating different legal systems.

Public International Law is a cross-border stock of binding regulations among nation-states and other international parties156. Therefore, it is a distinct greater law of affiliated parties, addressing states not civilians.

The science of Historical Law is often utilized by Comparative Law. An examination of a historical legal system necesssarily leads to drawing a comparison between the one being explored and the one actual being in force157. By taking into consideration that a comparison could be drawn not ← 21 | 22 → only between different national legal systems, but also within the same legal system within different times158, it becomes difficult to distinguish Comparative Law from Historical Law. Even if one requires a foreign element for law comparison159, there is an interrelation between these two sciences160. It is essential to have a comprehensive understanding of a regulation in order to conduct a law comparison161. This understanding can be achieved by a comprehensive interpretation of a rule. There are certain specific methods accepted to achieve the full sense of a rule. One of these methods is to interpret a rule from a historical viewpoint162. To be able to compare law, a law comparatist may employ this method of historic examination. Actually, the comparatist uses the historical examination of a rule only in order to achieve his original goal, which is comparing law; thus he does not conduct historical research for historical exploration purposes only. This is where Historical Law and Law Comparison differ. The distinction of Historical Law and Comparative Law lies in the different setting of priorities with respect to the history of law. Historical Law focuses on researching the development of law in contemporary history, whereas the study of Comparative Law just takes the historical development of law into consideration as a necessary intermediate step on the way to the final aim. After all, historical research regarding the development of a rule in the context of performing a Law Comparison is just a means to an end.

The study of International Law describes the law of one or more foreign countries163. In the context of this study, one provides a monographic overview of a foreign legal system, not necessarily with regard to a special topic. If one chooses to examine law systems of more than one foreign country, the results are usually displayed by providing a synoptical illustration164. The difference of this procedure to Comparative Law is that the pure description of a foreign law system does not include an evaluation or any kind of comparison. The study of International Law misses the key element of interrelating different legal systems165. The lacking element of comparing provides the criterion for demarcation. This study of International Law is a way of gaining and imparting foreign legal knowledge to one’s own system without drawing a conclusion. International Law is a separate subject, but a necessary first step before ← 22 | 23 → dealing with Comparative Law166. Only when one knows about the foreign law to which a comparison is aimed at, one is able to compare167.

Legal Sociology is concerned with how legal rules affect society168. Especially in certain principles of Comparative Law, in particular the functional principle, the study of Comparative Law does not only focus on exploring similarities and differences between legal handling, but if such are found, also tries to seek the reasons for such169. Such an analysis must be accomplished by considering the social surrounding in which a legal rule came into effect once upon a time and how social conditions affected it then and now170. Considering this, both sciences are aiming at the extent to which law influences behavior and therefore its effects on society. However, when Comparative Law aims at more than just understanding one’s own legal system, it tries to clarify the function of law as such, therefore the boundary of legal sociology is crossed171. Some opinions even claim that the method of Comparative Law and Legal Sociology are similar in some ways172. How much the Sociology of Law and Comparative Law have in common depends on which of the above named variant of Comparative Law one follows, this again depends on the individual aim of comparison and must be decided in connection with the topic that is explored. ← 23 | 24 →

50Großfeld, Kernfragen der Rechtsvergleichung, 1996, pp.1, 3.

51De Cruz, Comparative Law in a Changing World, 1999, p. 3.

52The selection of which legal systems are to be compared is limited by the skills of the comparatist. Examining a foreign legal system requires a base of knowledge “in all the important aspects of comparison that make up being a comparative lawyer” (Edge, Comparative Law in a Global Perspective, 2000, p. 10). This typically includes the respective foreign language, [the necessity of] time spent immersed in the foreign legal culture and more, in order to be able to get the substantial meaning of a legal idea behind a written word and to properly translate law from one language to another. Ultimately, the selection of a foreign legal system depends on the personal interest and the aim of the comparatist, who for logical reasons will choose a foreign legal system in which he assumes to find answers for his specific legal research. Aimless comparing of non-selective legal systems is a time-consuming task, with a chance of creating useless knowledge for the matter of cause. (Cf. Markesinis, Rechtsvergleichung in Theorie und Praxis, Munich, 2004, p. 50 et seq.; Rusch, Methoden und Ziele der Rechtsvergleichung, Jusletter 13. February 2006, p. 5.

53The Oxford English Dictionary, Second Edition, Vol. III, 1989, p. 592.

54The Oxford English Dictionary, Second Edition, Vol. VIII, 1989, p. 712.

55The Oxford English Dictionary, Second Edition, Vol. VIII, 1989, p. 712.

56Edge, Comparative Law in a Global Perspective, 2000, p. Xiii.

57Roxin, Strafrecht AT, Band I, p. 16, marginal no. 7 et seq.

58De Cruz, A Modern Approach to Comparative Law, 1993, p. 5.

59Zweigert/Kötz, Rechtsvergleichung, 1996, p. 14.

60Zweigert/Kötz, Rechtsvergleichung, 1996, p. 3 - According to Zweigert/Kötz who describe Compara-tive Law as “the research of truth” and “truth” is to be found through achieving “cognition”. This results from the fact that Comparative Law as such is purposeless. Therefore, “truth” and “cognition” primarily depend on a concrete aim. The general aim of Comparative Law is to somehow enhance law in whatever sector. This enhancement appears from the possibility of seeing another, until then unknown, possible way of dealing with legal situations and so being able to scrutinize accustomed manners, and so fortunately refine and thus eventually find the best way of legally handling a certain matter. What is ´best´ depends on the concrete aim, the initial question. For example, if the initial aim refers to the question of how to handle a given legal problem, “the best” in this contextual meaning would stand for the ideal way of handling this legal problem in reference to the particular society.

61Expression ascribed to Zitelmann by Rheinstein, Einführung in die Rechtsvergleichung, 1987, p. 26; Zweigert/Kötz, Rechtsvergleichung, 1996, p. 14.

62De Cruz, Comparative Law in a Changing World, p. 3.

63Zweigert/Kötz, Rechtsvergleichung, 1996, p. 1, 2

64De Cruz, Comparative Law in a Changing World, 1999, p. 3; Cf. Eser, FS Kaiser, Vol. II, 1998, p. 1499 (1501).

65Rheinstein, Einführung in die Rechtsvergleichung, 1987, p. 11.

66For the dispute whether to emphasize similarities or differences or to strike a balance between both see Dannemann, Comparative Law: Study of Similarities or Differences? in: Reimann/Zimmermann (eds.), The Oxford Handbook of Comparative Law, 2006, p. 383 (384 et seqq.).

67De Cruz, A Modern Approach to Comparative Law, 1993, p. 5 with reference to Watson, Legal Transplants (1974) who argues for the necessity of an intellectual content to meet the requirements of Comparative Law.

68De Cruz, A Modern Approach to Comparative Law, 1993, p. 2.

69Zweigert/Kötz, Rechtsvergleichung, 1996, p. 1.

70De Cruz, A Modern Approach to Comparative Law, 1993, p. 3 with further reference to Saleilles, Rabel, Hall; Rheinstein, Einführung in die Rechtsvergleichung, 1987, p. 11.

71Michaels, The functional method of comparative law, in: Matthias Reimann/ Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law, 2006, p. 339 (342).

72De Cruz, A Modern Approach to Comparative Law, 1993, p. 3.

73Zweigert/Kötz, Rechtsvergleichung, 1996, p. 6 says that is how Comparative Law illustrates itself for the first instance.

74Zweigert/Kötz, Rechtsvergleichung, 1996, p. 2, 4 – with reference to Lambert, Conception générale et définition et défintionde la science du droit compáre, Procès-verbaux des seánces et documents, Congrès international de droit comparé I (1905) 26, printed in: Zweigert/Puttfarken (eds.), Rechtsver-gleichung, 1978, p. 30.

75Cf. Zweigert/Kötz, Rechtsvergleichung, 1996, p. 22.

76Zweigert/Kötz, Rechtsvergleichung, 1996, p. 22.

77Cf. § 18 par. 2 Bavarian Training- and Examination Rules (Bayr. Ausbildungs- und Prüfungsordnung für Juristen).

78Rheinstein, Einführung in die Rechtsvergleichung, 1987, p. 11.

79De Cruz, Comparative Law in a Changing World, 1999, p. 1.

80De Cruz, Comparative Law in a Changing World, 1999, p. 2; cf. The Oxford English Dictionary, Second Edition, Vol. VIII, 1989, p. 712.

81Edge, Comparative Law in Global Perspective, 2000, p.10.

82Zweigert/Kötz, Rechtsvergleichung, 1996, p. 22.

83Zweigert/Kötz, Rechtsvergleichung, 1996, p. 22.

84Zweigert/Kötz, Rechtsvergleichung, 1996, p. 22.

85Gutteridge, Comparative Law, 1949, p. 1.

86De Cruz, A Modern Approach to Comparative Law, 1993, p. 15.

87De Cruz, A Modern Approach to Comparative Law, 1993, p. 5.

88http://www.thefreedictionary.com/technique - accessed 2011/09/09.

89Rheinstein, Einführung in die Rechtsvergleichung, 1987, p. 11.

90Simpson and Weiner, The Oxford English dictionary , Vol. IX, 1989, p. 690.

91Rheinstein, Einführung in die Rechtsvergleichung, 1987, S. 11.

92Zweigert/Kötz, Rechtsvergleichung, 1996, p. 6.

93Simpson and Weiner, The Oxford English Dictionary, Vol. IX, 1989, p. 690.

94Zweigert/Kötz, Rechtsvergleichung, 1996, p. 14.

95Zweigert/Kötz, Rechtsvergleichung, 1996, p. 3.

96Edge, Comparative Law in a Global Perspective, 2000, p. 11.

97De Cruz, A Modern Approach to Comparative Law, 1993, pp. 14, 15.

98Cf. De Cruz, A Modern Approach to Comparative Law, 1993, p. 5.

99Markesinis, Rechtsvergleichung in Theorie und Praxis – Ein Beitrag zur rechtswissenschaftlichen Methodenlehre, 2004, pp. 6, 7.

100Örücü, Comparative Law: A Handbook, 2004, p. 52.

101Zweigert/Kötz, Rechtsvergleichung, 1996, pp. 11, 12.

102If legal solutions or handlings differ from each other, or even are mutually incompatible, this can not only be seen as a proof of law being differential, but as a chance for the cognitive comparatist to evaluate one legal solution as good and the other one as unsuitable. As a result, the unsuitable solution is to be avoided or abolished, not just in one’s own legal system but also in the country in which it actually is effective. This cognition comes by discovering which of the incompatible laws solves the respective problem best in regard to the specific problem or topic chosen. (For general difficulties related to the attempt of evaluating in a comparative study refer to Chapter 1, D., 2. The Functional Method of Comparative Law, especially marginal no. 23).

103Heller/Dubber, The Handbook of Comparative Criminal Law, 2011, p.1; De Cruz, A Modern Approach to Comparative Law, 1993 p. 16.

104Entered the discourse of A. Watson, Legal Transplants and European Private Law, Vol. 4.4 Electronic Journal of Comparative Law, (December 2000).

105Entered the discourse of A. Watson, Legal Transplants and European Private Law, Vol. 4.4 Electronic Journal of Comparative Law, (December 2000).

106If legal solutions or handlings differ from each other or even are mutually incompatible this can not only be seen as a proof of laws being various but this could be a change for the cognitive comparatist to value one way of legal solution as good and the other one on the contrary as bad. As a result he found the better law.

107Voigt, Globalisierung des Rechts. Entsteht eine dritte Rechtsordnung?, in: Voigt (ed.), Globalisierung des Rechts, 2000, p. 17.

108De Cruz, A Modern Approach o Comparative Law, 1993, p. 16.

109Platsas, The Functional and the Dysfunctional in the Comparative Method of Law: Some Critical Re-marks, Electronic Journal of Comparative Law 12.3 (December 2008), pp. 1 et seqq. (2).

110Platsas, The Functional and the Dysfunctional in the Comparative Method of Law: Some Critical Re-marks, Electronic Journal of Comparative Law 12.3 (December 2008), pp. 1 et seqq. (10).

111Zweigert/Kötz, Rechtsvergleichung, 1996, p. 33.

112Graziadei, The Functionalist Heritage in Legrand and Munday (eds.), Comparative Legal Studies: Tra-ditions and Transitions, Cambridge University Press, 2003, p.101.

113For the discussion see Platsas, The Functional and the Dysfunctional in the Comparative Method of Law: Some Critical Remarks, Electronic Journal of Comparative Law 12.3 (December 2008), pp. 1 et seqq. (2).

114Ibid.

115Richard L. Abel, Law as lag: Inertia as a social theory of law, Michigan Law Review 80, 1982, p. 785 (789); David Nelken, Towards a Sociology of Legal Adaption, in: Nelken/Feest (eds.), Adapting Legal Cultures, 2001, p. 7 (12); Uwe Kischel, Vorsicht, Rechtsvergleichung!, ZvglRWiss 104, 2005, 10 (p. 16).

116Uwe Kischel, Vorsicht, Rechtsvergleichung!, ZvglRWiss 104, 2005, p. 10 (16); Otto Kahn-Freund, Comparative Law as an academic subject, The Law Quarterly Review 82, 1966, 40 (p. 51).

117Reitz, How to do Comparative Law, American Journal of Comparative Law 46, 1998, pp. 617 et seqq. (622).

118Michaels, The functional method of comparative law, in: Reimann/Zimmermann (eds.), The Oxford Handbook of Comparative Law, 2006, 339 (pp. 370 et seqq.).

119Michaels, The functional method of comparative law, in: Reimann/Zimmermann (eds.), The Oxford Handbook of Comparative Law, 2006, 339 (p.366).

120Zweigert/Kötz, Rechtsvergleichung 1996, p. 33.

121Zweigert/Kötz, Rechtsvergleichung 1996, p. 33.

122Edge, Comparative Law in Global Perspective, 2000, p. 12.

123Zoller, Congruence and Proportionality for Congressional Enforcement Powers: Cosmetic Change or Velvet Revolution?, Indiana Law Journal 78, 2003, 567 (p.582).

124Örücü, The Enigma of Comparative Law, 2004, p. 19; Platsas, The Functional and the Dysfunctional in the Comparative Method of Law: Some Critical Remarks, Electronic Journal of Comparative Law 12.3 (December 2008), p. 6.

125Kamba, Comparative Law: A Theoretical Framework, International and Comparative Law Quarterly 23, 1974, 485 (pp. 511 et seqq.).

126Zweigert/Kötz, Rechtsvergleichung, 1996, p. 38.

127Schmitthoff, The Science of Comparative Law, The Cambridge Journal 7, 1939-1941, p. 94 (96).

128Platsas, The Functional and the Dysfunctional in the Comparative Method of Law: Some Critical Remarks, Electronic Journal of Comparative Law 12.3 (December 2008), p. 4.

129Platsas, The Functional and the Dysfunctional in the Comparative Method of Law: Some Critical Remarks, Electronic Journal of Comparative Law 12.3 (December 2008), pp. 6 et seq.

130Michaels, The Functional Method of Comparative Law, in: Reimann/Zimmermann (eds.), The Oxford Handbook of Comparative Law, 2006, p. 339 (364).

131Zweigert/Kötz, An Introduction to Comparative Law, 1998, pp.34, 35.

132Zweigert/Kötz, An Introduction to Comparative Law, 1998, pp.35, 38.

133Piek, Die Kritik an der funktionalen Rechtsvergleichung, GreifRecht 2009, p. 84 (89); Rabel, Aufgabe und Notwendigkeit der Rechtsvergleichung, Rheinische Zeitschrift für Zivil- und Prozessrecht, 13, 1924, pp. 279 et seqq.

134Zweigert/Kötz, Rechtsvergleichung 1996, p. 39.

135Zweigert/Kötz, Rechtsvergleichung, 1996, p. 39.

136Zweigert/Kötz, Rechtsvergleichung, 1996, p. 43.

137Bogdan, On the Value and method of rule-comparison in comparative law, in: Mansel (ed.), Festschrift für Erik Jayme, Vol. 2, 2004, p. 1233 (1240); Piek, Die Kritik an der funktionalen Rechtsvergleichung, GreifRecht 2009, pp. 84 et seqq.

138With the meaning of “the better law” it is referred to such cases in which legal solutions or handlings differ from each other or even are mutually incompatible and the comparatist not solely views this difference as, the proof that laws are various but also judge that one legal solution is more valuable that the other in order to serve a specific problem. However the decision of one law being favored over another can be acknowledged solely in regard to a single problem and has no validity if it is not connected to the object of investigation.

139Capeletti, A General Introduction, in: Capeletti et. al., Integration through Law, Europe and the American Federal Experience Band 1, Vol. 1, 1985, p. 5; Piek, Die Kritik an der funktionalen Rechtsvergleichung, GreifRecht 2009, p. 84 (94).

140Bogdan, On the Value and Method of Rule-comparison in Comparative law, in: Mansel (ed.), Festschrift für Erik Jayme, Band 2, 2004, p. 1233 (1240); Piek, Die Kritik an der funktionalen Rechtsvergleichung, GreifRecht 2009, pp. 84 et seqq.

141Bogdan, On the Value and Method of Rule-comparison in Comparative law, in: Mansel (ed.), Festschrift für Erik Jayme, Band 2, 2004, p. 1233 (1240 et seqq.); Piek, Die Kritik an der funktionalen Rechtsvergleichung, GreifRecht 2009, pp. 84 et seqq.

142Contextualism “describes a collection of views [-originally derived in philosophy-] emphasizing the importance of the context in solving problems, holding the opinion that an action, […] expression [and so on can] only be understood relative to that context. Contextualist views [–in whatever doctrine-] hold that controversial concepts, such as “the reason for hate crime” and possibly even findings such as “being true” or “being right” only have meaning relative to a specific context”. (Cf. http://encyclopedia.thefreedictionary.com/contextualist - accessed June 2011; for further information refer to Price, Contextuality in Practical Reason, 2008 and Feldman, Contextualism and Skepticism, in: Tomberlin (ed.), Philosophical Perspectives 13, Epistemology, 1999).

143E.g. Legrand, ‘How to Compare Now’ (1996) 16 LS 232, at 236 citing Law, ‘Introduction: Monsters, Machines and Sociotechnical Relations in Law (ed.) A Sociology of Monsters[:] Essays on Power, Technology and Domination (London 1991) 18. ; Cf. example in: Platsas, The Functional and the Dysfunctional in the Comparative Method of Law: Some Critical Remarks, Electronic Journal of Comparative Law 12.3 (December 2008), p. 1 (4).

144Jeschek, Entwicklung, Aufgaben und Methoden der Strafrechtsvergleichung, 1955, p. 43.

145Cf. Eser, FS Kaiser Vol. 2, 1998, p. 1499 (1522) - who states that working out possible solutions and finally making a choice are two different things.

146Eser, FS Kaiser Vol. 2, 1998, p. 1499 (1511).

147Markesinis, Rechtsvergleichung in Theorie und Praxis, 2004, p. 26; Graziadei, ‘The Functionalist Heritage’ in Legrand and Munday (eds.) (n 1) 101; Samuel, ‘Epistemology and Comparative Law: Contributions from the Sciences and Social Sciences’ in: Van Hoecke (ed.) (n 2) 39 noting that ‘Concepts and rules need to be contextualized within a range of factual situations so that their function can become evident’ and M Van Hoecke, ‘Deep Level Comparative Law’, in: Van Hoecke (ed.) (n 2) 167. Cf. Graziadei in the work stated in this note at pp. 110-111; Platsas, The Functional and the Dysfunctional in the Comparative Method of Law: Some Critical Remarks, Electronic Journal of Comparative Law 12.3 (December 2008), p. 1 (5).

148The question of function precedes that of context. See Rabel’s approach as described in: Glendon/Gordon/Osakwe, Comparative Legal Traditions (West Publishing, St. Paul, Minn., 1994) 11; Platsas, The Functional and the Dysfunctional in the Comparative Method of Law: Some Critical Remarks, Electronic Journal of Comparative Law 12.3 (December 2008), p. 5.

149Rheinstein, Einführung in die Rechtsvergleichung, 1987, p. 26.

150Rheinstein, Einführung in die Rechtsvergleichung, 1987, p. 26.

151Rheinstein, Einführung in die Rechtsvergleichung, 1987, p. 26.

152Piek, Die Kritik an der funktionalen Rechtsvergleichung, GreifRecht, 2009, p. 84 (96).

153Zweigert/Kötz, Rechtsvergleichung, 1996, p. 4.

154Zweigert/Kötz, Rechtsvergleichung, 1996, p. 4.

155De Cruz, A Modern Approach to Comparative Law, 1993, p. 7.

156Rogers, International Law and United States Law, 1999, p. 1.

157Zweigert/Kötz, Rechtsvergleichung, 1996, p. 8.

158Different opinion stated by De Cruz, A Modern Approach to Comparative Law, 1993, p. 7 - where Comparative legal history is described as vertical comparative law whereas the comparison of actual legal systems is referred to as horizontal comparative law.

159De Cruz, A Modern Approach to Comparative Law, 1993, p. 3; Zweigert/Kötz, Rechtsvergleichung, 1996, p. 2.

160Zweigert/Kötz, Rechtsvergleichung, 1996, p. 8.

161De Cruz, A Modern Approach to Comparative Law, 1993, p. 7.

162Legal interpretation methods.

163Rheinstein, Einführung in die Rechtsvergleichung, 1987, pp. 22, 28.

164Rheinstein, Einführung in die Rechtsvergleichung, 1987, p. 22.

165De Cruz, A Modern Approach to Comparative Law, p. 4 referring to Watson, Legal Transplants, 1974, pp. 6,7; Zweigert/Kötz, Rechtsvergleichung, 1996, p. 6.

166Rheinstein, Einführung in die Rechtsvergleichung, 1987, p. 22.

167Edge, Comparative Law n Global Perspective, 2000, pp. 10, 11.

168Zweigert/Kötz, Rechtsvergleichung, 1996, p. 10.

169Rheinstein, Einführung in die Rechtsvergleichung, 1987, p. 28.

170Rheinstein, Einführung in die Rechtsvergleichung, 1987, p. 28.

171Rheinstein, Einführung in die Rechtsvergleichung, 1987, p. 28.

172Zweigert/Kötz, Rechtsvergleichung, 1996, p. 10.

← 24 | 25 → Chapter 2 Preparatory Country Report

A. Choosing the Appropriate Reference Country

The selection of legal systems that are to be compared is limited due to the skills of the comparatist. Examining a foreign legal system requires a base of knowledge “in all the important aspects of comparison that make up being a comparative lawyer”173: the respective foreign language, the legal culture, and an awareness of the mindset of the foreign society in order to capture the effects and consequences of legal rules. It is therefore beneficial if time is spent immersed in the respective legal culture and society in order to get the full sense and the substantial meaning of a legal rule to be able to properly translate law from one language to another.

Since potential language and cultural barriers are surmountable, the selection of a foreign legal system ultimately depends on the personal interest and the aim of the comparatist, who for logical reasons, will choose a foreign legal system in which he assumes to find answers for his specific legal research question. Aimless comparing of non-selective legal systems is a time-consuming task, with a chance of creating useless knowledge for the matter of cause174.

If legal enhancement is the aim, it may be helpful to choose a basis of comparison which, at least at first sight, seems ahead of one’s own legal system or holds a leading role regarding the examined subject. For the examination of legal solutions to the phenomenon “hate crime” in Germany by Law Comparison, an intent look into American criminal law seems particularly promising. With the United States leading the way in fighting crimes labeled as “hate crimes” through legal institutions, which are released with varying markedness, in every state, the District of Columbia and the Federal Government175, it seems appropriate to avail oneself of the rich source of experience in science and jurisdiction which necessarily has been created by decades-long involvement176 with this sort of crimes. In addition, the U.S. jurisprudence has an universal importance which, excluding the Roman law, no other national legal system has ever achieved177. Since U.S. “states lead the world in enlightened criminal law codification”178 and the fact that the anglicizing term of the issue at stake already expects its origin in the U.S. ← 25 | 26 → jurisprudence, the idea of choosing the U.S. criminal law as a basis for comparison suggests itself.

In order to get started, it is essential to be aware of the way the respective systems work their law. Therefore, a brief introduction into the American and the German legal systems in form of a summary of the legal framework of the respective societies is provided in order to offer a fundamental understanding of the different legal systems. In the following the source of law of the respective societies is reflected to then view the polity of the societies. Hereinafter it is turned to the relevant field of criminal law. The knowledge which is gained from the following illustration according the legal systems of the German and the U. S. society enables one to achieve a fundamental understanding of the current law established in both societies. This, thereby established basis, enables one to be fully aware of the subsequent discussion about hate crime in its legal specifics.

B. The U.S. Legal System

A brief summary of the U.S. legal system with focus on criminal law, is provided in the following by beginning with the source of law. The constitutional extracts are introduced in order to generate the necessary preunderstanding which enables one to follow the features of hate crimes and the difficulties arising from hate crime legislation in the United. Moreover, a basic overview of the U.S. criminal law and the legislative procedure is essential in order to allow one to not only make up ones own opinion about the pros and cons concerning hate crime legislation in general, but specifically to enable one to conceive the comparison with the German legal situation, which is drawn later in this dissertation.

1. The Common Law System

There are three major legal families179 in the world: the Roman-Germanic law, the Law of the socialistic legal systems and common law180. The law of the United States structurally belongs to the legal family of common law181. Common law is a “body of law, derived from judicial decisions, rather than ← 26 | 27 → from statutes or Constitutions”182. Common law183 once started with a judicial decision. Therefore, back in the days the judge had to decide a dispute with common sense184 based on central ideas as equity, fairness and morality. His so rendered judicial decision contains law. It arises through deciding the case and becomes directly enforceable law through proclaiming the sentences. This is explained by the concept that through a verdict a specific legal regulation corresponding to this particular case is expressed for the first time, and from there it evolves into a binding force for all judges who have to decide a later similar case185. Whether a case is similar, and the decision, which failed once, fits a later legal dispute, depends on the reasons which made the judge decide the case the way he did. For that, decisions are not to be followed by construing the words of a judgment. It is necessary to examine the exact circumstances of the former and the actual case to distinguish differences or to detect equality in its entirety186. “Thus it was the principle of the case, not the words which went into common law”187. This causes a legal principle not to be an abstract device; it is closely linked to the case in which it was first expressed to solve a specific problem188. Consequently a rule can only be understood, if one knows every single fact of the case for which the rule was once created189. With this, common law190 is developed from the collection of judicial decisions. According to this, law is found in judicial decisions and from these accrued maxims.

1.1. Origin and Development of the Common Law in the United States of America

English courts originally developed “common law” in the abovementioned way191, implying that the jurisdiction of English courts resulted in lawmaking. Simply by collecting their judicial decisions, which as such embodied the law ← 27 | 28 → for England and, adding a systematic application, the English legal system was created. American colonies then adopted this law from England as it existed192 and it was brought to U.S. territory by English immigrants in the 17th century193. Not only was the body of English law adopted as it existed, but the way of creating law was also carried into the legal conception of the early American colonies.

After implementing English law, American Courts autonomously took over the role of further developing this “received” English law for American country194. In doing so, the once adopted law was fitted into the American society and territory and consequently altered195. Alteration occurs because law is released in particular, shaped by its social surrounding in the process of incorporating the features the particular community asks for196. The adopted English regulations were made for England; whereas, the situation in the American territory in which English principles were about to place themselves was totally different from the one in England197. Different countries, especially according to such different types of societies198 (referring to England and the United States in the 17th century), require different legal solutions. If the same law is enacted in different sovereign countries it will live on separately in each territory199 and therefore potentially develop differently. Likewise, if a law, which was made for a specific society, is adopted by another society, it necessarily has to be adjusted to individual needs which occur among the independent-minded people of the respective society.

So from the beginning, a territorial, social, cultural and economic adaptation of English principles to specific requirements – which the American society asks ← 28 | 29 → for as distinct from the English society200 – took place in the American legal system, leading to steadily increasing alteration between the originally adopted English common law and the common law established in the U.S. back then and nowadays201. A further cause for the increasing departure from English law was that, in addition to the alteration of already implemented legislation, no further adoption of English principles followed since 1776202. Instead, independent lawmaking adapted to fit the needs of the United States transpired. As a result, in the present day not only single legal principles of the common law in England and the common law in the U.S. differ from each other, but also the American conception of legality changed due time and the legal structure deviated from the original English sample. Accordingly, common law in England and such in the United States are only egalitarian but certainly not equal. However, American law has its source from English law causing both laws to be clannish. Both laws are cast in the same mould, both spring from a verdict, principally sharing the same idea of legal creation203 and conception204.

So despite all modifications and alterations which the law of the United States has experienced since its transplantation, its derivation from the English source and thus its affiliation to the legal family of common law is beyond dispute205.

1.2. Common Law in the United States of America as of today

Even though the U.S. Law system undisputedly belongs to the legal family of common law206, U.S. jurisprudence in principle could not and cannot turn a ← 29 | 30 → blind eye to the advantages of systematically codified law. While the United States certainly shares the same idea of law as judge-made law, consequently having the same understanding of a legal rule207 as an English jurist and decently counting their own legal system in the family of common law, their method of legislation nowadays matches more the one of Roman law208. Local conditions209 in the United States led to a certain freedom in handling, causing the prevailing principle of stare decisis to lose some of its strictness210. As statutes gain credence among the judiciary211, legislation further converges with manners of Roman law whereby rules become systematically ordered in written form. By converging to Roman law in these two basic points the U.S. judiciary eliminates from common law such which was originally unclassified court law.212 While the idea of codes being equal to court law coming to the fore213 concerns new law, there have also been several attempts214 to bring the already existing law (court law) into a systematic order by publishing Restatements215 in several fields of law. While the way of arranging existing ← 30 | 31 → codes in an alphabetical order216 seems to be the easiest form of ordering, it is not what a jurist accustomed to Codes of Roman law would consider as systematic statement of the law in force. In contrary to early beginnings217, nowadays there are drafts suggesting different orders depending on the field of law218; such are in no way inferior to Codes of Roman Law systems in regards to its systematical clarity. Nevertheless, a Restatement is not a code. In case a Restatement is cited in a judicial decision, it is not meant to qualify the Restatement as a legal basis. Such a citation only names the place where a judicial decision or a rule or both originates from, which again itself determines the law in the above explained peculiar sense of common law.

One must be sensible about the fact that with the nationwide launch of Restatements on all areas of law an idea, which roots in Roman law and is actually unfavorable to the “lively”219 common law, caused a changeover or at least a sensitization in the minds among U.S. jurists towards the technique of codification220. All in all the American legal system is “heavily influenced by statutory law”221. Today this qualifies the American legal system more as a “mixed system”222 than a true common law system even though codes often just recite the former common law rules without serving any systematic meaning. While nowadays several areas of law are still characterized by decisional law on the one hand, and even statutes are subject to court construction on the other hand223, some fields are exclusively regulated by ← 31 | 32 → statutes. Regardless of whether statutes are merely reciting the former common law rule or truly being enacted by the legislature, the field of criminal law is strictly codified and courts are not authorized to create new law or change existing regulation224. With regard to this, state and federal statutes are compiled in statutory codes that group the statutes by subject. That makes the American legal system neither a purely case law system, nor does such exclusively consist of statutes or codifications225. With the exception of the Constitution of the United States, which is understood as an applicable law without court interpretation226, the understanding of law today conforms to the English way of viewing the value of statutory law in respect of its binding effects and its application method. Therefore, the entire statutory regulation pertaining to the mentioned sector of criminal law does not lead to a different attitude among American jurists towards the general opinion of statutes227. A statute is not fully integrated into law until a court has applied and, therefore, construed it228. The meaning which the court has bestowed on a norm will grow into the legal system. This shows that nowadays, even though the American legal system is pervaded with statutory law in many sectors, the basic structure remains to be such of common law229, as it was once adopted from England230. For conceptual clarity, it is best to refer to American common law as “the body of judge-made law that developed during and after the United States colonial period, esp. since independence”231.

2. The U.S. Constitution

Speaking of the U.S. Constitution, one refers to the ‘Federal Constitution of the United States of America’, which is continuously effective since April 1, 1789232, and known as the oldest sustained written Constitution in the world233.

2.1. Structure and form of the U.S. Constitution

The U.S. Constitution begins with a preamble which, like an introduction, provides the reason for the establishment of itself. The preamble is followed by Articles (Articles I-VII, partially divided into sections), in which the form and organization of the nation is set. By determining the legislative, executive and ← 32 | 33 → judicial powers in Articles I-III the principle of horizontal separation of power is regulated; by defining the limitations of the federal government in relation to the states of the United States (Article IV) the vertical separation of power is established234. Articles V-VII deal with matters referring to the Constitution as such, while Article V describes the procedure which would be necessary to change the Constitution and Article VI provides the requirements of the ratification of the Constitution and further demands that the Constitution is the highest of all laws and inferior legislation must conform to Constitutional provisions.

This relation between the federal governments in proportion to the states on the one hand, and to the citizens235 on the other hand, is codified in a more detailed way in the Amendments, which are attached after Article VII of the Constitution. These Amendments have been referred to as “explicit textual additions”236 because of their concrete terms and their subsequent order237. The first ten Amendments are called “Bill of Rights”, because they define concrete fundamental, inviolable rights of all citizens of the United States.

Such Amendments are based on Article V of the Constitution, which provides the conditions for an Amendment to be proposed238. The first Amendment of the Constitution guarantees a person’s freedom of speech, and thus obviously causes the necessity of accomplishing a balancing act between hate crime laws, which include expressions and comments indicating prejudices based on race, religion and further characteristics of another and the within here guaranteed right. When speaking of basic rights, attention is further directed to Amendments XII, XIV and XV, which guarantee that certain rights of citizens of the United States are not to be “denied or abridged”239 and especially to Amendment XIV Section 1 which promises equal protection of the laws to all the people living under the U.S. government (Equal Protection Clause) and therefore, at first sight, could seem to possibly disagree with existing hate crime laws. At least if one assumes that by these laws certain groups are legally protected differently from others.

The American understanding of “Constitution” back in 1787 agrees with the understanding of Constitution today, which relates to a “fundamental and organic law […] that establishes the apparatus of a government, defines governmental sovereign powers, and guarantees civil rights and civil liberties”240. This deserves additional mentioning since the United States is ← 33 | 34 → engendered by common law. Despite the fact that American jurists have been guided by the idea of codes being written instruments embodying vague guidelines which necessitate interpretation through courts in the field, they have always considered the Constitution as the most fundamental law of the United States241, i.e. that the Constitution out of itself regulates all other legal areas and all laws. Accordingly, all legal rules are subject to the Constitution, thus must conform to all provisions of the Constitution. So in opposite to the principle of law being what the court says it is the Constitution provides the standards of what is to be considered as law. Judicial decisions of the entire nation must be in line with the Constitution; otherwise a court’s decision is unconstitutional and must be revoked242. This shows that even the system of common law as such derives its legitimation from the Constitution243. This makes up the principle of constitutional verifiability of all legislation, in addition to the policy that all legal regulation must be compliant with the Constitution, as stated in Article VI of the Constitution.244.

2.2. Separation of Powers

The United States is a federal and presidential democracy. As the highest legal norm, the federal Constitution stands above all, and by laying down rules, it could convey the impression of a federally created sovereignty apparatus. This again contradicts to its contained human rights, which serve as a protection of the people against all sorts of state interference. It is the endeavor of any democratic society to guarantee each individual citizen – under indeed state leadership – the highest level of freedom and independence. Thus a Constitution has to cope with the combination of ensuring a governmental claim to power without infringing certain guaranteed rights of citizens, namely basic human rights.

To secure “Constitutional rights and liberties”245 the principle of horizontal and vertical separation of powers, firmly established in Article I-IV U.S. Constitution, serves as a limitation and control of governmental power. This fundamental power separation pervades the entire governmental sector of the United States246.

The principle of horizontal separation is satisfied by a separation of powers, which used to be implemented by separating the judiciary from other state ← 34 | 35 → institutions247. The bisectioning in the past results from the fact that American law appertains to the legal family of common law, in which judiciary and legislature were coalesced. Nowadays one would expect – at least in legal areas in which courts generally no longer have the role of refining and developing law248 – a strict three-part division into a legislative, an executive and a judicial branch. In fact the legislative branch and the executive branch often share their tasks and assume to be combined249. Therefrom occurring concerns , considering the precept of power separation, are minimized due to the fact that a delegation of authority from the legislative to the executive branch only occurs in such cases in which necessary operational reasons require such250.

The vertical separation is implemented through the constitutionally grounded federal structure of the United States consisting of the Federal Government and the individual states – each having an own government – and the District of Columbia251.

The strong understanding of federalism is expressed in the federal U.S. Constitution by explicit distinguishing between the addressed audiences, sometimes addressing the federal government only, yet sometimes just the states252. The question of whether the Bill of Rights affects the states, since Amendment I U.S. Constitution beginning with “[The] Congress shall […]”, expressively refers to the ‘Congress’ as the federal legislature organ253 was not so clear. This idea seems awkward since the Bill of Rights should serve as a protection of the people against all sorts of governmental interference. Protection would not be sufficient if the federal government as such has to respect specific rights, yet its constituent units do not. However, this thought becomes reasonable when one considers the strong impression which the constitutionally implemented principle of federalism has on the minds of people ← 35 | 36 → of the entire United States254. Ultimately, Amendment XIV255 and its Due Process Clause, in the way it was interpreted by the judiciary in the 1960s256, made sure that the Bill of Rights in most sectors257 has a binding force on the states258. So, to the present day, it is unquestionable that the U.S. Constitution as the highest norm has a binding force on all U.S. territory despite the strong preoccupation of federalism. Therefore, the Constitution affects all U.S. state law. Therefore the Constitution of each state, as well as all lower laws, must conform to the federal Constitution.

2.3. Constitutional Powers

Speaking of separation of powers on the horizontal level, one must also consider take the vertical separation and distinguish between the horizontal discussion on federal and state matters. On the federal level, the Congress is the responsible organ of the legislative branch. In line with Article I Section 1 of the U.S. Constitution the Congress consists of two chambers, the Senate and the House of Representatives259. The executive power is vested in the President260, including the ministries and agencies reporting to him. The judicial power is covered by Article III of the U.S. Constitution and the judicial branch consists of the Supreme Court and inferior federal courts261. The United States Supreme Court has the exclusive jurisdiction in matters of Constitutional law262.

Due to the federal structure of the United States resulting from accomplishing the task of vertical separation, each respectable state has its own government. The constitutional obligation to provide a separation of powers pervades through every level of governance so that the horizontal separation must again be implemented in every respectable state. In order to accomplish this precept, the governmental structure of each state equals the structure of the federal government263. While there are huge distinctions between each state regarding the forms of local government, the following section referring to state matters, provides a description in general terms. State Constitutions are not required by the federal Constitution264. However, each respective state has its own fundamental law. Similar to their federal counterpart, state governments ← 36 | 37 → have their own legislative body, which in most states, like the federal Congress, uses the two-chamber system265.

The federal Constitution defines the legislative competence of the federal government (Article I Section 8 U.S. Constitution), expressly leaving the authority to issue law, in all the matters which are not mentioned, vested in the states266. However, the “Interstate Commerce Clause” of Article I Section 8 hands the competency over to the federal government in certain cases. The federal Congress therefore has the power to tax, the war power, the legislative jurisdiction in civil rights matters267 and the power of regulating such areas which require uniform nationwide regulation268. Therefrom the authority to issue law in the field of criminal law is vested in the states. However, the authorization of the Congress to legally regulate tax matters and the Interstate Commerce Clause is used by the federal legislator to enact criminal norms in wide sectors, which is legitimate whenever it is deducible from the Constitution269.

The executive branch in the different states consists of a Governor as the Head of the State and of the state’s executive branch270. The court system of each state, usually providing three levels of courts, forms the judicial branch.

The vertical separation of powers at the state level is realized through a separation in departments of inferior governmental units, such as – in descending order – counties, cities, and other localities with legal personality, such as villages271. Conformable with the horizontal principle of separation, again a separation of departments has to be ensured on these lower levels of governance. However, it is to be ensured that the constitutional obligation of power separation pervades through the entire governmental structure of the United States and therefore being accomplished even on the lowest level of governance.

2.4. Summary

With the constitutional doctrine of federalism, demanding the distinction of powers of government among several of its constituent parts in order to prevent a concentration of power in any one part272, is ideal; implemented through horizontal separation by means of independent branches (legislative, executive and judiciary), and vertical separation by means of territorial partitioning. One must keep in mind that the principle of vertical separation of ← 37 | 38 → powers demands that each part, which arises through a realized separation, is equipped with sovereignty, and again, with the precept to fulfill the doctrine of federalism within itself.

3. U. S. American Criminal Law

Since hate crime legislation is part of criminal law, the following provides an overview of the sector concerning federal and – in generalized terms – state criminal law.

3.1. Constitutional Base of Criminal Law

Article I Section 9 U.S. Constitutio compraises substantive criminal law. In consequence to forbidding “ex post facto law” according to Article I Section 9, criminal legal norms are constitutionally demanded as an essential fundament for punishment. Thus individualized regulation and verbally retroactive penal legislation is prohibited273.

Article I Section 9 also imposes a judicial process (“bill of attainder”) based on the violation of a legal norm existing at the time of the act as a stringent necessity for punishment. Several constitutional provisions concern the judicial process. Starting with the Fourth Amendment, which prohibits “unreasonable searches” and discretionary arrests, the Fifth Amendment continues the provision of Article I Section 9 by enhancing the demand of a previous judicial process for the reason of sanctioning, as for any kind of disturbance of a person’s integral domain. In addition, the requirements of such a necessary judicial process are stated. Accordingly “no person shall be held to answer for a capital” without a judicial process based on an “indictment of a grand jury”274. The institution of a jury, which decides prior to the start of a main trial if there is a probable case, is considered to be the materialization of democracy, according to the American mindset275. America’s society is averse to governmental power and therefore tries to diminish it wherever possible276. On the judicial level this aim is implemented by not letting the judge, as a governmental institution, fail the verdict, but a group of civilians. This idea occurs through the fact that a jury is an institution independent from the prosecutor, which in contrary to the prosecutor has a certain distance to the indictment. Overall it implies that the more serious the interference to one’s basic rights appears, the more impartial, in the sense of independent, and therefore just, the structuring of a trial must be. This explains why the more serious the indictment is, the more stringently required the presence of a jury is277.

← 38 | 39 → Further, the guarantee against “double-jeopardy”278 and the right against self-incrimination are constitutional established in Article 9 U.S. Constitution.

The Sixth Amendment concerns the criminal trial itself by setting provisions which secure -in general terms: a fair trial; including, for instance, the accused right to counsel, the right to obtain a witness and the right to trial by jury, also a speedy and public trial is guaranteed. Finally, Article I Section 9 Sentence 2, known as the habeas corpus clause, allows all arrested persons to seek judicial review of the legality of their internment, and if it should emerge that an unconstitutional instance has been involved somewhere during the entire judicial procedure, redress is adjudged from the locally competent federal court279. With that, the field of criminal law, especially the criminal procedure, is regulated by the Constitution of the United States of America in general.

The reason why the criminal sector, and in a wide range the sector of criminal procedure law280, is being established in the U.S. Constitution, is to limit and to control governmental intervention281 which infringes people’s elementary rights: such are naturally endangered by governmental punishment at its most. The Bill of Rights, constituting human rights, constitute the establishment which to ensure and secure these rights and therefore such must demand the situations in which these basic rights can be constitutionally restricted282. With recognizing that the main function of the U.S. Constitution is to limit governmental power and secure people against governmental abuse283, one recognizes that the U.S. idea of governmental guarantees is the protection of the individual against the state. Regarding the relation to the people, the government has a restrained position. Colloquially “less government, more people” penetrates through every sector of governmental participation, leading to the fact that within the sector of criminal law, governmental interference is more responsive and not so much preventive284. This refers to the idea prevalent in U.S. penal law theory. According to which the limit of the legitimate ambit of criminal law is based on the assumption that there is a fundamentally protected personal sphere of the individual, in which the criminal legislator must not intervene285. The establishment of inviolable human rights within the federal Constitution of the United States of America implies the duty of securing their realization in practice. Criminal law has the ← 39 | 40 → highest potential to infringe these rights. Therefore, in the concept of law in the American view, substantive law, but especially the general conditions of the criminal procedure, must be provided in the U.S. Constitution. Difficulties in securing the basic rights of men resulted from the wording of the Constitution, which in terms of the Bill of Rights refer to the federal government only. Due to federalism and the division of legislative powers between the states and the national government, these rights would be meaningless if they would not refer to the several autonomous political entities in same way as they bind the national government. Nowadays, since the enactment of Amendment XIV and its juridical interpretation, the Bill of Rights binds the states to the same extent as they bind the federal authority. The U.S. Constitution, which on its merits is orientated towards the federal government, ultimately demands that all laws, whether federal or state, must be in harmony with the federal Constitution. Consequently, every single criminal norm, whether state or federal, must meet the constitutional standards.

3.2. Legislative Competence and Institution

As seen above, the federal government and the states are independent from each other. Each governmental subject has own governmental authorities and its own territory in which it has carte blanche to rule within the constitutional frame. However, within a federal commonwealth, the member states usually somehow suffer a loss of sovereignty286. Even though the states have their own criminal law, federal criminal law exists in the United States and must in some matters come into effect. In so doing, a point of contact between the federal government and the state takes palce. Consequently, the question of the competency of legislation between the federal government and the state rises. The answer to the question of competency, distributed between the federal government and the states referring to the enactment of law, is provided by the tenth Amendment of the U.S. Constitution. While the Constitution explicitly defines the legislative competencies of the federal government, the tenth Amendment reserves all other competencies not mentioned to state legislative power287.

3.2.1. Federal Matters

Federal law refers to all legislation which came into effect under the authority of the federal government, consisting of the U.S. Constitution288, federal statutes289, federal treaties (Article VI U.S. Constitution) and constitutional case law.

3.2.1.1. Federal Legislative Competence

← 40 | 41 → With regards to Amendment X U.S. Constitution, one realizes that the legislative power of the federal government to enact law is the exception and only exists in areas provided for by the U.S. Constitution. When referring to the field of criminal law, federal legislative competence for legal regulation is not explicitly mentioned. The federal legislative department is concerned with lawmaking in the field of criminal law. Thus the Constitution must provide competencies for such. If one searches the U.S. Constitution for a legal basis of the federal government to enact law in general, one will find it in Article I Section 8290. The matters enumerated in Article I Section 8 U.S. Constitution do not seem to be explicitly designed for assigning legislative power within the field of criminal law, even less such do not provide a constitutional basis for federal authority to regulate the field of criminal law in its entirety. Yet the federal government has released far reaching criminal legislation throughout the entire sector of criminal law, regarding substantive criminal law as well as the release of rules for criminal procedure. The main source for this federal activity is the Commerce Clause of Article I Section 8 U.S. Constitution. This rule gives the federal government the authority to regulate the national – “among the several states” – and the international trade291. Therefore, the term “trade” is understood very generously: it includes all areas of law which in some way could affect the trade. By adding economic, social and educational matters as components, due to arguing that these areas constitute the success of the trade of a country in a wider sense292, the federal lawmaking competencies are extended to all of these areas as well. As a result, in the field of criminal law,293 the federal government widely released penal norms. These punish behavior for the reason of such being a disturbance of national and international trade294. This is in opposition to other sectors of law in which, pursuant to the general restraint in common law against codifications, the federal government has abstained from its legislative powers295. A parallel can be drawn to the law of the European Union. In the relationship of the EU with its member states the EU adopts rules based on the goal of creating a better development of economic life in a possible harmonized economic space. Other common legislative competencies used to regulate the field of criminal law through the U.S. federal legislator are the power to tax, the war power and the jurisdiction in civil right matters296. Thus, according to the U.S. Constitution, the ← 41 | 42 → federal government primarily criminalizes those acts that affect interstate commerce297. The fact of missing explicit constitutional empowerment of the federal legislature, in combination with far reaching existing federal criminal law, is an indication of quite an amount of creativity when it comes to constitutional traceability of a legislative basis for federal law enforcements. Expressively this creativity is in demand when it comes to establishing a necessary connection between the legally prohibited circumstance and the harmful effect of this circumstance for the interstate commerce. Then, finally, it depends on the judgment of the U.S. Supreme Court if a federal norm presents a sufficient nexus. In the 1960’s, for instance, the United States Supreme Court interpreted the phrase “interstate commerce” very broadly298. This broad way of interpretation seems to have become restricted since 1995299, when the Court struck down the Gun-Free School Zone Act, which made it a federal crime to possess a gun within a school zone300. According to the Court there was no sufficient nexus between gun ownership and interstate commerce301. Admittedly, the reason for declaring the law as unconstitutional was the Congresses’ failure to reveal the harmful effects of carrying a gun near a school for commerce. If just any nexus between the commerce and the aimed at prohibition would have been determined by the Congress, the constitutionality of the law would have probably not been denied302. The fact that there is no explicit constitutional provision empowering the federal legislature to enact criminal law does not only limit the federal legislature’s ability for handling, but also creates a huge portion of uncertainty towards the legitimation of federal legal activity. In this context, also the federal government’s power to punish bias-motivated crime is highly in question303. Clearly the federal legislature may criminalize bias-motivated crimes which affect interstate commerce. However, with this limitation the federal laws could only address a small percentage of bias-motivated crimes. An indication of a lack of competence of the federal legislator to enact hate crime norms could be seen in the verdict of United States v. Morrison304. The Violence Against Women Act, a federal norm, allowed rape victims to sue rapists in federal court. This portion of the Act was declared as unconstitutional by the Supreme Court because – among further reasons – the law exceeded Congress’s authority under the commerce clause305. The fact that the federal government ← 42 | 43 → has the power to release Civil Rights Acts based on civil rights matters jurisdiction leads to the idea306 of subsuming bias-motivated offenses under Civil Rights Acts legislation. These laws, in general, allow a person to sue a state or a local government employee or an individual in federal court, if such interferes with his or her constitutional rights. But the discussion307 whether the federal government could use the laws of the Civil Rights Acts308 to punish bias-motivated crimes, says little about its competence to release explicit hate crime laws; the matter of Civil Rights Acts being linked to the matter of hate crimes is discussed more deeply later on in this dissertation.

Federal substantive and procedural criminal legislation is applied whenever federal courts are called into action. Therefore, the federal government not only has its own legislation regarding substantive criminal law but also regarding the criminal procedure309. By using the seemingly small federal legislative competence to release abundant criminal legislation310, the principally provided distribution of power between state and federal lawmaking in the field of criminal law appeared to have changed without the need of a formal change of Constitution311.

3.2.1.2. Federal Legislative Institution

The Congress is the legislative branch of the federal government and it consists of two chambers: the Senate and the House of Representative (Article I Section 1 U.S. Constitution). While there are two sources of law in the United States - common law and statutory law – the Congress is responsible for the statutory law, while leaving the common law matter to the courts. Except from the constitutional case law of the federal Supreme Court there is no further case law on the federal level312; thus at federal level, only the legislature adopts laws. The following legislative process is applied whenever a new law is enacted313: The process begins with an introduction of a legislative proposal of a member of Congress. This proposal, named bill,- after surviving the legislative committee process - must be approved by both houses of Congress314. Finally it must be ratified by the President. With his ← 43 | 44 → signature, the bill becomes a law315. Treaties, on the contrary, become effective upon ratification by the President after the adoption of a two-thirds majority of the Senate – the adoption by the House of Representatives omitted. Since treaties have the same force and effect as federal statutes, although the prerequisites for adoption are diminished, possibilities for their enactment must be limited in order not to revoke the legislative rights of the House of Representative. Therefore, their adoption is legitimate only in terms of international matters316.

3.2.2. State Matters

The term ‘state law’ refers to the summary of rules and legislations enacted by the individual state317. According to the federal structure of the United States, each state is a sovereign governance and has its own statutory law and its own collection of decisional law in such matters where decisional law – understood as construal of norms – becomes relevant concerning the criminal legal sector318. The statutory law of each particular state consists of its own Constitution, its statutes and the enactments of its constituent inferior departments319.

3.2.2.1. State Legislative Competence

Substantive criminal law is expressly directed to state legal authority. Due to the fact that the police power is enshrined in the Constitution as state law, the authority of sentencing primarily lies in the authority of the particular state320. “Police” in this sense, is understood in the old meaning of welfare321. Because of this, each state is authorized and duty-bound to protect the welfare of its people322 and, if necessary, release sentence acts. As a result, every state has its own criminal substantive law and criminal procedure, which is eagerly called into action, whenever a legally punishable act is committed. Most criminal prosecutions are conducted by the states, due to the limited legal resources of the federal legislative and judicial branches323. State law must not only be in harmony with the federal Constitution, it must also not interfere with interstate handling. The fact that states are empowered to enact criminal provisions says little about their authority to enact their own decisional law. Decisional law, even nowadays, comes into effect if a case, for which there is no applicable statutory norm, must be decided; whereas this, in practice does not refer to criminal law anymore. The situation that a statute is too vague to take effect without judicial determination of its legal prerequisite, stays relevant ← 44 | 45 → for the subject of criminal law even nowadays324. This incident, which in the eyes of an U.S. jurist refers to common law whereas a Roman jurist would call it “construal of a norm through court”, raises the question which interpretation in a case of diverging construction takes effect, such of the state or that of the federal court. As soon as the question regarding the competency of legislation between the federal government and the state is answered, then the follow-up question, whether common law is the legal order of the federal government or such of the states, rises325. The difficulty of the - either federal or state - nature of common law occurs from the fact that there are federal courts and courts of the states and their respective competencies do not go in line with the distribution of power of law-making326. Federal courts are able to take action in legal cases, even if it is not within their range of authority, for instance, if a legal matter requires common, nationwide handling327. To cite as a reason, it is enough if the parties are citizens of different states and the law case has a certain importance. If speaking of criminal law, as stated earlier, neither the creation nor the change of criminal law is subject to courts any longer. But, since it was until the second half of the 20th century328, each state still has its own distinct laws nowadays. In addition, with the existing sovereignty of courts, further new distinctions regarding the interpretation of norms accrue in the judiciary. In such doing, new differences between the sovereign parts develop within decisional law even today. Even if all states would once adopt uniform laws and the legislature would not introduce any changes and amendments to the once adopted version of law, due to the particular state’s judicial interpretation and application such would diverge and so over time would cause distinctions between the former legal uniformity. For all intents and purposes, however, courts have to interpret a law enacted by the legislature (statutes). Due to this, there are differences in the legal handling among the states and the federal level. So the question arises which “interpretation” (of which court) is to be followed in cases of distinctions. After all there is no superior judicial authority at the federal level that could coordinate divergent state judicial practices329. While it was once uncertain whether federal courts should be able to apply their federal common law over the distinct common law of a particular state, it is beyond dispute that common law is within the authority of each state330. Consequently a federal court must apply the common law of the concerned state, which is the state in which it is locally based and to which it has the concurrent jurisdiction. But since each state is bound to the Constitution and thus bound to the case law of the federal ← 45 | 46 → Supreme Court, state courts usually follow the decisional law of the federal Appellate Courts in cases, in which their legislation – statute law or decisional interpretation of statute law – or certain applications of their provisions are found to be noticeably different and thus possibly unconstitutional. So a conflict in criminal law, regarding the matter of whether the decisional interpretation of the federal court or such of the state court is to be applied, hardly occurs.

3.2.2.2. State Legislative Institution

When referring to the institutions for lawmaking, one must differentiate between case law and statutory law. Whereas statutory law is enacted by the legislature, case law becomes effective through a verdict of a court; therefore the legislative institution in the second case is a court - however, this distinction in the area of criminal law is obsolete.

The course of court proceedings in state courts is not specified in the Constitution., but the states in general mirror the handling of the federal government331.

3.2.3. Summary

Federal statutes are subject to limitations, legally and practically332. Legally, according to the U.S. Constitution, the Federal Government is able to criminalize acts which affect interstate commerce, but all in all its authority is restricted to certain areas. In addition to the legal limitations, further potential practical limitations might occur from constitutional construal, dependent on the Supreme Court. This refers to the matter of how strict the United State Supreme Court interprets the phrase “interstate and commerce”. Until the 1960’s the interpretation through the Court took place very broadly333. In more recent years it seems that the United States Supreme Court is to set an end to the spread of criminal norms based on the commerce clause334. However, the criminal law of the United States is predominantly state law335. Despite the far reaching federal legislation in the field of criminal law, it is noted that the main control in the range of punishment and the most frequent application of the criminal law is done by the states. Only between one and three percent of criminal offenses are brought to a federal court336.

← 46 | 47 → 3.3. Manifestations of Criminal Law in the United States of America

Departing from the convention that law in the United States is essentially (at least based on) common law, criminal law today strictly follows a code. In the area of criminal law, courts no longer have the authority to change or create law337. They have to interpret an existing code in order to pass the adjudictation which the code provides for the specific case. Nevertheless, the relatedness to common law comes to light even in criminal matters, where law seems entirely codified. There are statutes which are too indefinite to come into effect without court assistance. Courts have to imply a legal meaning to such a statute by naming the concrete requirements for culpability in accordance with the precedence systematic of common law338. Thereby, despite the codification of all regulations, common law lives on in the sector of criminal law339.

With respect to the above discussed federal structure of the United States and the therefrom resulting partition in federal and state matters, one realizes that Americans are used to organizing their legal affairs under two sets of laws followed by two sets of courts: federal and state340. Keeping that in mind, one can say that there is no U.S. criminal law as such, but many, exactly fifty two341, criminal laws which exist independently next to each other. Whereas each state has its own legislations, the federal government has its own criminal law in addition. Whereas an exact distinction between the criminal laws of each state cannot be discussed in this dissertation, the federal and state dealing with criminal law – in general terms – is shown in the following.

3.3.1. Federal Criminal Law

Next to the criminal laws enacted in each state, the federal government has released laws in separate matters wherever the U.S. Constitution provides a legal basis for such. When noted that state and federal legislation is compiled in codes this says nothing about the participation of the legislature in the creation of this codified law, nor is a code an indication for a systematic order of law. Often the rules, which were once created by courts, were directly transferred into a code. So even it appears that the federal government established a code, it must be realized that such does not provide any systematical grouping, nor a form and content which is assumed when referring to the term “code” in European legal systems. The Federal Penal Code does not have a general part with general regulations determining the general applicability of the following rules or which provide general elements ← 47 | 48 → that refer to every offense, such as an act, attendants, circumstances, mental states, modes of culpability and prima facies342. Furthermore, rules regarding sentences are scattered all over the code. In fact, the federal code consists of fifty headlines containing various offenses in a confusing order. Offenses are also to be found in enormous collections of ordinances, released by lower departments343. While there has been talk of reform since after the Second World War344, the Federal Penal Code implemented little of system.

3.3.2. State Criminal law

In the present day, criminal law is developed by legislative branches, and states are independent legal systems. Thus nearly every state has its own Penal Code as its primary source of criminal law345. This gives an idea of how many different crime legislations exist in the United States. Not only does statutory law exist on both levels, federal and state346, but the fact that in the respective state level, criminal law is further enacted by lower governmental units (e.g., counties, cities, and other localities with legal personality such as towns and villages347) which again varies between the respective states, makes it difficult to localize and to restrict; which would significantly simplify the comprehension of the matter348. This makes it clear that all the benefits which a high level of sovereignty brings at the same time entail disadvantages. The fact that a state has an independent legal system, which leads to an individual realization of governmental regulation on every level of power, reveals that local authority for lawmaking is not only a decisive criterion for sovereignty. This also leads to varied legislation in one nation, even though, a federally organized commonwealth is essentially one unit. Therefore, the United States as a federal government must reconcile the interests of a single state with the interests of the whole nation. These tasks must be accomplished in similar ways by the European Union in regard to its Member States. If the European Union enacts policies, such must meet the interests of all Member States in equal measures, thus European policies must be universally applicable and valid, despite local and individual differences of the Member States, whereas the unity-promoting factor of the European handlings stays paramount.

← 48 | 49 → Regardless of the dimensions of diversity of the distinct sector of law in the United States, uniform laws have been introduced by non-profit organizations349 in many areas of law in order to bridge the differences in the entire U.S. nation350. For reasons of clarity and comprehensibility public sponsored and private organizations351 in the 20th century started promoting nationwide unity of legislation in the United States by launching suggested legal handlings, subjecting several sectors of law. Whereas in other areas of law the above mentioned Restatements of the American Law Institute could render clarity and comprehensibility to many sectors of law352, within criminal law a restating of existing law was refused353.

In 1953354, it became apparent that in general the existing rules in the area of criminal law were condemned, and thus could not serve as a solid base for a Restatement. The gap between the laws of the states was too big for summarizing. Rules as such were deficient all too frequently, so that instead, a model of a code was provided355. This codification of criminal law officially worked out in 1962356, named the Model Penal Code, ranges at the highest level of systematic clarity. With regard to its systematic order, it is claimed to be even superior to, for instance, the German Penal Code (StGB)357. Anyway, it is certainly not less systematic than codes of Roman law, even though American jurists – in contrary to Roman jurists - have not been used to organizing their legal matters in systematic codes at all times. Now these uniform laws or model codes still must be adopted by the respective states in order to bring uniformity358. While the adoption, and therewith the success, of uniform laws has been uneven359, the Model Penal Code as such has been a huge success. The revised edition from 1985360 triggered an impulse for a nationwide reform of existing criminal law. For the majority of the various legislators throughout the United States of America the Model Penal Code not only served as an impetus for legislation to renew ailing criminal rules, but served as a leading example for all legal reform efforts in the field of criminal law361. Most states362 adopted the suggested provisions or reformed their ← 49 | 50 → existing laws along the lines of the Model Penal Code363. States in which legislation has not been changed due to the launch of the Model Penal Code were at least influenced through their judiciary, which followed the suggestions of this draft364. Whereas the criminal reform based on the Model Penal Code was implemented on the federal level at the least365, the federal judiciary orientates itself towards the specifications of the Model Penal Code despite the lack of adjustment of the terms366. Thus with the nationwide introduction of the Modal Penal Code reasonable order was brought into the once common law ruled American criminal law367. Because of the highly systematic configuration of the Model Penal Code most criminal law in the United States nowadays uses an analytic structure that is easily compatible with the German scheme368, which presents a prefixed general part which refers to all following norms.

The success of the Model Penal code is understandable if one incorporates the view of law which is inherent in a common law jurist. Since the American legal system still primarily is a common law system, as discussed above, this fact still influences the law of the country369. Therefrom it results that a statute does not develop their full legal validity until a court has defined its meaningfulness. With the definition which is bestowed upon a norm by the respective court, such becomes truly legally relevant and constitutes binding applicable law for the next case. Because of this, it is clear that statutes are still subject to binding - and authoritative - interpretation by the courts370.

However, if the case law develops in a direction not intended by the legislature, the legislative branch can always pass new legislation to bring about a correction371. It is revealed that in sectors in which the need for legislative intervention is especially urgent a statute is accepted at its best372. With respect to the “unsound and ill”373 criminal law, the appreciation and the readiness for a reform of the sector of criminal law was high; in fact, the suggestions of the Model Penal Code came in handy. So the success of the criminal law reform throughout the entire nation is attributable to the need for an improvement in the field of criminal law on the one hand, and the highly developed legal structure of the Model Panel Code on the other hand.

← 50 | 51 → 3.3.3. Summary

In many areas, the laws of the different states may be very similar. Nevertheless the distinctions require a common determinator. In order to fulfill the main subject of this undertaking, an appropriate basis for comparison is needed, which necessarily has to consist of one stringent way of dealing in the respective chosen subject in order for that subject to serve as a suitable basis for comparison. This one stringent way of handling in the sector of criminal law in the United States then serves as an appropriate basis, when comparing it with one other way of handling, such – with respect to the chosen matter – is the German way of handling in the sector of criminal law. Choosing the one criminal law from the multitudes of criminal orders which exist in the United States, reveals to be difficult. It is searched for that one stringent way of criminal handling, which could serve as a basis. The precept of “one law” would relate to one criminal legal order as it actually exists in the United States in one of the states – leading to the fact of leaving all other American criminal laws behind, which causes the problem that the chosen law would not serve as a valid base for comparison due to the lack of objective criteria. From one particular law, one may not refer to the actual legal treatment throughout the country, since one legal order does not represent the entire criminal law sector of the United States.

If there is a common determinator in the criminal law of the United States it is the Model Penal Code374. When speaking of a common denominator to encompass the entire U.S. criminal law, it is referred to the Model Penal Code375 because it serves as the principal source of penology in the entire United States376.

3.4. Jurisdiction and Competence of Criminal Courts

In respect to the strict obedience of federalism377 there are two parallel proper channels of jurisdiction for each lawsuit, one on the state level and one on the federal level. Both are separate and independent from each other378.

3.4.1. Federal Matters

A legal case is a federal matter if a federal court is competent to decide the case. A federal court is competent to decide a case whenever a claim arises from federal law; whenever a subject requires even treatment and whenever ← 51 | 52 → the relevant parties have diverse citizenships379, either from different states or from different nations380. Since federal courts apply federal rules, there must necessarily be federal trial law. Yet, the legislative basis for such federal legislation must be traceable to the U.S. Constitution. However, federal courts do not have exclusive jurisdiction in the field of criminal law. They have parallel jurisdiction with state courts on all judicial levels (with the Supreme Court as an exception), hence, in all of their criminal cases381. Consequently there are two parallel proper channels for each lawsuit. As a corollary to the strict obedience of federalism382, such necessarily leads to the fact that both channels are independent from each other, consequently courts of one channel do not overrule courts of another channel, expressly a federal court does not function as an appellate or superior court of a state court383.

3.4.1.1. Federal Courts

The U.S. Constitution demands one Supreme Court and an undefined number of inferior courts384. From the federal perspective, the realization of this constitutional demand led to the establishment of three instances of federal courts. The legal path starts with a claim arising under the court of first instance (trial court), which in federal matters, is an U.S. District Court and is represented in every state at least once385. Larger states are parted into regions; in this case, each region has its own District Court386, which results in an overall of ninety-one established District Courts in the United States of America387.

If a claim reaches the second instance, the Court of Appeal is competent to conduct a review. There are thirteen Courts of Appeal in the United States. The number thirteen is fixed; it accrues from the number of regions, named “circuits”, in which the country is divided. Each region supplies one Court of Appeal which is in charge for that entire region. Since a circuit crosses national state borders and comprises several states, a Court of Appeal is cognizant for ← 52 | 53 → several states. Each circuit is identified by number; this number is also the designation of the respective Court of Appeal388.

The highest Court in the federal judicial system is the U.S. Supreme Court. There is only one exception to the statement that federal courts, no matter on which level, do not function as appellate or superior courts for state courts389: The U.S. Supreme Court, the highest court in the United States, which, as the guardian of the U.S. Constitution, is vested with the charge of being the point of verification of all jurisdiction390. Therefore, as a federal court, the U.S. Supreme Court does function as a final review instance for state court decisions.

The U.S. Supreme Court has competence on the first level and on the last level of legal proceedings, but practically only the last level is of importance391. This results from its power of discretion, due to which the Justices of the Court are able to decide which claims to accept for jurisdiction. Generally, cases which refer to essential federal matters or cases with major importance for the U.S. nation are to be heard392.

3.4.1.2. Applicable Federal Law

In a federal case, federal courts apply federal law. As stated before, the federal government has its own set of statutory law and applies its own rules created by the federal legislature.

Something else occurs, if federal law, which is required to solve the pending legal case, does not exist. If a federal rule does not exist, a court would – in respect of the common law tradition of the United States – create law. However, to such creation federal courts are not competent393. Federal common law must not exist394. This question, as seen before, does not apply within the field of criminal law, because since the 21st century, criminal law is entirely codified. However, what refers to criminal law is the possibility that statutory federal and state law differ from each other or that just the interpretation of law through federal courts and such of the respective state court differ. In case a criminal rule is too indefinite to be applied just as it has been enacted by the legislature, a court has to construe the meaning, which occurs individually, by the court concerned. Whatever occurs individually, leads to diversity between the respectively dealing departments. So if a federal court deals with a criminal case and has to apply a rule which is construed in a ← 53 | 54 → different way in the federal courts, then it is due to the state court, to which it has concurrent jurisdiction, the question rises, which interpretation is to be followed, the federal or the one of the state? As discussed above, in diversity cases a federal court must apply the law of the state in which it is located395. Would a federal court apply its own law in the case of the double court hierarchy, the chances of decisional disparity would be high. If considering the possibility that a federal and a state court both adjudicate over a case and thereby apply their own concurrent case law and thus pass different verdicts, it becomes apparent that this could lead to unrest; therefore the primacy of state law is reasonable. Of course, all courts, including state courts, are bound by decisions of the U.S. Supreme Court that interpret a particular federal rule at issue and so are forced to interpret their potentially same rule in the same “federal”, i.e. constitutional, way. This so far concerns statutory law, but also included the dealings with common law matters occurring during a criminal trial.

Regarding the criminal procedure, Federal law, is shaped by the federal Constitution and is further based on the Federal Rules of Procedure, Federal Rules of Appellate Procedure and the special rules promulgated for criminal legal procedures396. Such a special rule regarding the federal criminal procedure is the mandate of a jury trial for serious crimes397. This is imperative, unless the defendant has waived this right in writing with the consent of the court and the prosecutor. However, such a waiver is not legal in case a crime is punishable by the death penalty, irrespective of the sentence which in the end is imposed398. The task of the jury is to pass the verdict in correspondence to the guilt of the offender399. If the defendant is found guilty on all or some charges, a sentence – based on the judgment of the jury - is pronounced by the judge.

In case of a lack of federal regulation concerning a legal matter the federal court may apply state law. If federal law, regarding the criminal procedure, conflicts with state procedural law and claims applicability400, it preempts state law in proceedings in federal courts, even when the claim is based on state law, which could occur in diversity jurisdiction cases401. After all the “Supremacy Clause” of Article VI U.S. Constitution determines that federal law overrides state law. This rule is relevant in the case that a behavior meets the legal facts of a state offense and such of a federal offense likewise. Given that ← 54 | 55 → the federal law is made in pursuance of the Constitution, the “Supremacy Clause” comes into effect whenever state law and the law of the federal government differ from each other. Even though there are several criminal laws which the federal government may use to punish crimes, federal courts do not often play a role in the prosecution of crimes. The majority of the criminal proceedings are conducted in the states402.

3.4.2. State Matters

State courts have criminal jurisdiction over all claims regarding criminal law. This means that a claim which arises under federal law may be brought to a state court, as well as it may be brought to a federal court403. The jurisdiction of the state court depends on the territory where the crime was committed or where it produced effect404.

3.4.2.1. State Courts

Like in every sector of the U.S. governmental regime, the arrangement of legal power of the states mirrors that of the federal handling. So state law – in general – provides for three levels of courts405, just as the federal government does, even though it is not constitutionally demanded for either one. For the first instance, there are lower courts which mainly decide over misdemeanors406, which are crimes punishable not above one year of imprisonment407. On the same level there are higher courts which function as a first instance for felonies and more serious crimes.

The next instance provides the intermediate appellate court, which reviews the decisions of the lower courts408.

The highest court is a constitutional court of the respective state, mirroring the federal Supreme Court409.

3.4.2.2. Applicable State Law

States have their own statutory, procedural and common law which they apply. If a claim arises under federal law, the respective state court decides the case within its concurrent jurisdiction by applying its own legal rules. State procedural law derives from the federal Constitution, state statutes and the state Rules of Procedure, state Rules of Appellate Procedure and the special rules promulgated for criminal legal procedures. It usually regulates formalities ← 55 | 56 → as time limitations, organizations of trials and so on410. Many states have adopted rules based on the federal example. As in a federal court, state courts provide jury trials for serious crimes. The task of the jury, as in a federal proceeding is to pass the verdict of guilt. If the defendant is found guilty on all or some charges, the sentencing procedure which follows is usually performed by the judge. However, in some states this is taken over by the jury as well, in contrast to the norm411. Thus, the main goal of U.S.s of reducing the risk of the abuse of governmental power becomes even more evident412.

Each state has its own appellate courts; a federal court does not review decisions of state courts. As an exception to the strict separation of the federal and state judicial branch, state courts are bound by decisions of the U.S. Supreme Court which interprets the particular federal rule at issue. As a consequence, state courts must interpret their corresponding legislation in the same, “federal”, constitutional way. The compliance of this demand must somehow be supervised. This is done by the U.S. Supreme Court. Thus it becomes apparent that state courts may in principle be overruled by a federal court. However, this is possible through the Supreme Court only, which has an exceptional position. As a rule of thumb it must be said that if a claim arises under state law and the parties do not have diverse citizenships, federal courts are not competent to decide the case. There are two main sources of cases coming before a federal court: “federal question” jurisdiction, and “diversity” jurisdiction, apart from those, state courts in principally handle the criminal case until up to a certain instance. The Supreme Court – as a federal court – functions as an appellate court for all courts of the United States of America413. In case of the Supreme Court functioning as a court of first instance, which could happen if a “writ of certiorari” would be conceded414, the competence of the Supreme Court interferes with the principle of exclusive state competence regarding criminal trials.

3.4.3. Summary

Corresponding to the two sets of law there are two sets of courts: state and federal.

State courts have jurisdiction over criminal trials. Since the courts of each state are independent and sovereign from courts of other states and from federal courts, each state court applies its individual statutory law and moreover produces its own common law, which in the field of criminal law emerges from judicial interpretation of rules. So every state court has access to its own state-based set of law and consequently it decides the pending case. If the claim ← 56 | 57 → arises under federal law, federal courts have jurisdiction over criminal matters in addition to the basic competence of state courts. Besides, federal courts have concurrent jurisdiction with state courts in state law cases, if the relevant parties are from diverse states or nations (“diversity jurisdiction”)415.

According to the Supremacy Clause of the U.S. Constitution, federal law overrules state law due to the fact that states are bound to decisional law of the U.S. Supreme Court. Other than that, when it comes to common law, federal courts inferior to the Supreme Court must apply the specific case law of the respective state in the case of diverse jurisdiction.

C. The German Legal System

The law in Germany is based upon the law of the ancient Romans. Therefore, a brief introduction to the coalescence of German and Roman law is provided, which forms the basic understandings and regulations in German jurisprudence in every field of law.

1. The Roman - Germanic Law System

Roman law, once created by the Romans, an Italian tribe416, and Germanic law, which due to the invasion of Germanic peoples was brought into the Roman Empire, forms the basis of the apprehension of law in Germany417.

Both demographic groups, the Romans and the Germans, who were located in one territory when they converged with each other and thus, near the end of the 15th century, the territory was not only “named” the Holy Roman Empire of the German Nation but also “understood” as such418, so that consequently both legal systems (which were separate until then) coalesced419, building the Roman – Germanic law. This law forms a basis not only for present-day German law, but also for legal systems all over continental Europe. Yet Roman – Germanic law is the fundamental component of laws today, not the existing law in present-day societies. From the formation of Roman – Germanic law back then to the form which the law is effective in Germany today, there has been a long process of change. Legal ideas of other legal concepts, adoptions and enhancements over time420 led to several different legal formations of the initial legal concept of the Roman - Germanic people. Since the different legal opinions throughout Europe derive their origin from the law of the Roman – Germanic people, those systems due to the mentioned alterations necessarily do not have the same legal orders, but these legal orders are related to each other due to their common root. Due to this common denominator of legal orders throughout Europe, and even in other parts of the ← 57 | 58 → world421, Roman – Germanic law is not just left to describe the historical legal concept of Italy, but it serves as a legal family422.

If one wants to describe Roman – Germanic law today from the viewpoint of a German jurist stressing the signification for German jurisprudence, one can say it is a “construct developed through European sciences, which provides jurists a frame, a legal vocabulary and, most of a all, a method to help find the most just solution”423.

1.1. Origin and Development of Roman – Germanic Law in Germany

Roman law is an ancient cultural artifact of high rank424. Nevertheless, it is of importance in the present-day because of its historical impact on existing regulations. Although, due to its alterations, Roman law in its original form has come to an end in Germany, the Roman legal mindset continues to have an effect on legal norms today425.

Roman – Germanic law emerged in continental Europe, where it still has its central area of validity nowadays426. In the late Middle Age the process of adopting Roman law in Germany began, which caused a wide field of present-day law to be of Roman descent427. Thus not only does the German legal system have its roots in Roman law, but its legislation today is also strongly influenced by rules created by Romans back in the days. This statement especially refers to the field of civil law. Hence, a lot of today’s effective regulations are understandable and therefore correctly applicable due to the understanding of the historical Roman conception of law. Yet, the basic concept of the Roman conception of law not only refers to the area of civil law, but affects the basic approach of law in general.

What constitutes the concept of Roman – Germanic law and so unifies the discipline of the Roman – Germanic legal system428 is the way of understanding a legal norm and thereby the handling of law. The goal of jurists belonging to Roman – Germanic legal families is to arrange the legal togetherness of people among a society with the lowest possible number of regulations as accurately as possible. This occurs from the fact that real life ← 58 | 59 → brings a multitude of indefinable possible situations and thus problems which, if they should be legally subsumed, either result in a confusing quantity of norms, or lead to a special system which encompasses such with a restricted number of rules. In choosing a system of subsumption, the necessary result is a certain measure of abstraction429. A certain degree of abstraction demands even more for sane principles and regulations in order to capture the matter of subject. Therefore, the Roman – Germanic legal systems have a common technique to handle law; this technique is based on the developed specific mindset regarding the sense of a rule. Such is based on the idea that one rule must fit a variety of legal problems. Therefore, the understanding of a legal rule is abstract and detached from a particular case. Without any relation to a specific occurrence a rule is designed to capture a particular problem in a variety of formations; thus by isolating concrete circumstances a varying kind of manifestations are able to be compromised. Since, according to this, one rule fits a multitude of situations, such must be construed430 in order to get the true sense of it in regard to the particular aim and ascertain if it fits the concrete case in question. The interpretation of a rule requires a juridical armamentarium and the mastery of the recognized legal technique of construal. This refers to the requirement of knowledge regarding accepted legal interpretation methods431, the knowledge of how to imply the legal context surrounding the respective norm in a code432, the inclusion of definitions in combination with ways of consulting the spirit of the law, and more433. Overall, there is a generally accepted approach in order to find out if an abstract norm fits a concrete case, and such has to be mastered by every application of German law. The applicability of this approach requires a particular arrangement of rules in a code in reference to their subject matter, because such is based on the inclusion of the settings of a relevant norm; only with regard to this ordering it is possible to conceive the full meaning of a rule and to subsume a concrete case under an abstract legal devise. By following this juridical recognized approach, any legal expert must be able to solve a legal case on his own, just by finding the relevant rule combined with the application of his legal tools of the trade. From this, it is clear that the decision of one court does not make a precedent binding if the same questioned issue arises again. Every court, like every lawyer, may work out its own judgment by consulting and applying the correct norm, and thus come to his own decision; but, if the norm and the techniques are applied properly, in relation to the same problem everyone has to come up with the same legal decision. This, ← 59 | 60 → basically, makes the institution of a doctrine such as stare decisis redundant. In practice, however, the problem of conflicting judgments exists nonetheless. To ensure the consistency of jurisprudence, or to prevent different judgments, there are special provisions in the code for court proceedings that regulate how to proceed in the case of irreconcilable judgments434.

It is however clear that even though judgments of courts do not force binding precedents, a certain bond of future decisions to spoken sentences occurs435. But this is no more than the consideration of general expert opinion regarding the law on the point436.

This particular application of the law dissociates the Roman-Germanic legal families from other legal systems and the common law system respectively. In Roman – Germanic law a norm is traditionally understood by itself by applying the technique of construal, whereas in common law, where a norm exists to decide a concrete case437. The meaning derives from the content which a court assigns to such, thus the norm derives the meaning in reference to a concrete case. Consequently according to the German understanding a legal norm is generally binding, not viewed in connection to one specific case, but in regard to the abstract characteristics which are listed in the norm. If a concrete case fits the abstract statement of facts which are described in the norm, a court must examine by construing the legal prerequisites of the relevant norm.

The reason for the distinct understanding of a norm in the Common and the Roman-Germanic Legal family relates to its distinct way of incurrence. The specific, now German, technique of how to understand a rule in its full meaning and the way of how to establish a connection between a concrete case and an abstract norm emerged through the centuries – long438 scholarly activity of universities439. In the scope of sciences, it was the task of universities to develop regulations which fit into the properly organized society and which existence comes naturally due to its logical fairness440. The proof of scientific achievement regarding the legal scholarship resulted in the creation of a code441. A code contains the acquisitions of legal schools. It presents their educationally developed law in a summarized depictive representation442. ← 60 | 61 → Thus, by codifying this source of legal knowledge, the achievements were made available to the practice. Simultaneously, with the publication of a code not only were the implemented rules provided to everyone, who was occupied with law, yet actually not being part of an actual scholarship program; but by the systematic organization of the law in such a code, a technique for a special way of applying law was provided. As a result courts were actually able to make use of the maturely and soundly created knowledge443. In the process, the law of academics was transformed into (practicable, thus applicable) positive law444. The scientific achievements and (until then only) theoretical principles, were realized to solve real life problems. For the record, with courts applying academically made law, the law of the society was to date determined by legal schools. From the moment when codes were introduced into the legal public445 the code took over the place, which until then was the task of universities: it provided the law. Setting this studious (scholarly) Law in comparison to the judge-made law of the United States, it shows why the law is developed in abstract through savant masters: to provide comprehensive, generally applicable methods to solve legal problems446.

A legal unity of the revived Roman-derived law existed in Europe far into the modern period447. Not until the launch of codifications the legal development began to part from each other448. Along with the advantages of a code came the disadvantage that law became star and stiff. One thought a code provides the faculty of reason for all times, with the result that universities stopped developing law and searching for better legal solutions. They switched from their role as research scientists to just representing the actual state, i.e. the status quo of the law and how it is being applied449.

1.2. Roman - Germanic Law in Germany as of today

Today the aging of the Codes soothes the strict law positivism450. One knows about the importance of the task of science and the importance of judicial ← 61 | 62 → implementation when it comes to creating and developing law451. Even in the field of criminal law, in which the basic principle of legitimacy seems to justify a stronger binding to a once-enacted law, growing judgment and discretion is allowed, especially when it comes to imposition of sanctions and their enforcement452. The adaptability in the field of criminal law is illustrated by the fact that there have been not less than four huge reformations of the entire criminal law since 1970453.

Nowadays, the task of law and those who are concerned with jurisprudence is to concretize the prevailing ideas of justice of the people and realize such within their society454. Obviously, the development of new law, which becomes necessary due to the constant adjustment to social needs, can only be achieved by observing the developments of mindsets not only in the respective society, but of foreign countries by the help of comparative law455. The modern way of legislature does not stick to the once codified ideal456. Instead of a code which regulates all legal questions finally, the legislature creates new laws solving individual problems of communal life457. Such laws which are created for a certain period of time, thus not for the eternity, leave gaps, which have to be completed by jurists. Since, in contrast to common law systems, these gaps should not be completed by decisional law. It requires that everyone who is concerned with legal handlings bethink oneself of the systematic and the conception of law, which itself guarantees the legal certainty and with that finally constitutionality458. The systematic and dogmatic, which are therefore necessary, have been mainly developed in Roman law459. Since the Romans knew about the necessary incompleteness of legal norms460, the delivery of methodical instruments corresponding to this matter took place as well. Even nowadays the Sections 6 and 7 AGBGB461 mention the legitimacy of ← 62 | 63 → analogy462, due to which – as long as the analogy is in harmony with the Constitution – a norm is able to provide answers for cases to which it does not explicitly refer to. Overall, Roman law is described as a feature of an especially good method to accomplish practical problems, thus an especial legal technique463 which guides the manner of the German legal approach in every juridical situation.

Today, lawyers are challenged by correctly fulfilling the requirements of this legal technique; especially when it comes to adjusting the law and creating new law when societal needs requires such. The balance between strict obedience to once-created norms by simultaneously respecting the spirit of a law must be mastered. This emanates from the fact that once created, a rule requires strict obedience in every single aspect. This causes an extreme formalism and an anxious, strictly speaking pedantic bond to the word. This bond is also found in the construction of law464, whereby a rabulistic interpretation of words is sought465. The anxious adherence to the word in principle benefits the legal circumvention466. Such is identified if one complies with the words of a norm, but at the same time bypasses the spirit of the norm467. In the end, both a strict obedience to the word and the spirit of the law, must be accomplishable. These are the challenges of today’s German legislators when enacting new law. The task is to keep up the once represented idea of abstractness of a legal rule and continuing the system of subsumption by following an elaborated legal technique. In order to master this goal, one has to meet the challenge of finding the optimal degree of generalization of a norm, and at the same time not to stick to thoughtless legal positivism468. In the present-day the law in Germany derives from legal norms which were enacted by the competent legislator. But in reference to the science regarding the source of law469, it is recognized that finding the law is a task which has to be fulfilled by all legal experts and thus all legal departments together470.

2. The German Constitution

The Constitution of Germany, named ‘Grundgesetz’, has been effective since May 23, 1949471. The term “Constitution” refers to the same meaning in ← 63 | 64 → Germany as it does in the United States of America, which is the understanding of Constitution as the legal fundamental order of a society472. This understanding of Constitution makes it easy to follow the German choice of words naming their Constitution “Basic Law”. To avoid conceptual confusions, one has to be aware that the description “Basic Law” is used in Germany as a byword for “Constitution”, so applied synonymously in this approach, even though the official German term for “Constitution” is “Basic Law”. Usually one speaks of the “Basic Law of the Federal Republic of Germany” when referring to the German Constitution. The German Basic Law comprises the form of legal organization of German society, including its political structure and attached to this, the administration of governmental power and the relations to its subject473. If referring to the relation between the administration of governmental power and the thereby affected parties, who are the citizens of the respective government, the interest quickly diverts to the ‘Grundrechte’ (Basic Rights), expressly speaking, to the fundamental rights of citizens, which are part of the German Constitution in a similar way as they are part of the Constitution in the United States of America (“Bill of Rights”).

2.1. Structure and Form of the German Constitution

Germany is a federal, democratic republic with a president as representative at the head of government. Whereas Germany (the “old” Federal Republic of Germany) consisted of eleven federal states, in the present day it consists of sixteen federal states, because the five eastern states, hereinafter labeled as GDR474, which before formed a sovereign state and were affiliated to the Russian federation, rejoined the German nation in October 3, 1990. As a consequence thereof, the Constitution, which is valid today, encompasses entire Germany475. When speaking of the time before the reunification of the eastern and the western part of Germany, one refers to the “old” Federal Republic of Germany which comprised eleven states, only the western part of Germany. These eleven states were affiliated to the three victorious powers England, France and the United States, whose military governors presented the Minister-Presidents of each of the eleven states on January 1, 1948 three documents476, whose contents laid the foundation of today’s German Constitution477. The first document contained the relevant sources for forming a federal democratic nation out of the German government by providing elementary principles which the German nation must implement in their ← 64 | 65 → governmental, political and legal structure. Maurer mentions three basic declarations relevant to the enactment of the present-day German Constitution: The Minister – Presidents of the states had to call a meeting to enact a Constitution until the January 9, 1948. For the Constitution to be enacted it had to be a democratic Constitution; implementing the principle of federalism by providing a considerable amount of sovereignty to the states by also creating a central authority and implementing the guarantee of basic rights and freedom to its people478. Finally it refers to the commencement of this future Constitution by determining that its legitimacy requires the approval of the governors of the military powers and of a majority of the people in at least two-thirds of the states479.

With a number of alterations, especially regarding the direct approval through the German people480, the Constitution in the old Federal Republic of Germany, referred to as FGR, was formed.

The German Constitution begins with a preamble which, in the way of an introduction, paves the way for the following principles. It states that the Constitution is based on the will of its society; refers to the responsibility towards god; formulates the goal of being an equal part of Europe and serving the peace in the entire world; mentions the unity of (east and west) Germany481 and finally determines the area of its validity482.

The preamble is followed by what is called “Bill of Rights” in the U.S. Constitution, but what is called basic rights in German language use, such are understood as fundamental rights for the defense of citizens against their government, moreover referred to in the sense of basic rights for the entitlement to governmental benefits and as rights of the individual citizen to participate in governmental activity483. Most democratic Constitutions choose to contain a catalogue of fundamental rights of the nation’s citizens, because thereby, not only is the relation between the government to its citizens and to the economy determined, but moreover is the basis for a government set484.

The next part consists of provisions which are called ‘basic – rights – alike’ rights, followed by the last part, which is a huge complex containing provisions regarding the polity of the German nation in all of its aspects.

The basic rights are organized in Article 1 – 19, while the ‘basic – rights – alike’ provisions are scattered all over the Constitution (Articles 20, 33, 38, 101, 103, ← 65 | 66 → 104 Basic Law). The law concerning the polity of the German nation is determined in Article 20 and the following; containing general provisions in Article 20 – 29 and Article 34, and the organization of the German territory, named as law of internal organization, is set in Article 38 until 69, by defining the relation between the federal government in proportion to the states on the one hand (Article 30 – 32, 35 – 37, Articles 70 et seq.), and marking down the individual competences of the particular governmental departments in relation to each other on the other hand. In conjunction with each other, all these Articles imply the inviolability of the human dignity; ensuring it, because all governmental powers are bound to the constitutionally determined basic rights and the constitutional law in general, and further through the accurate definition of basic structural principles, such as constitutional democracy, republic, federalism and welfare state, which constitutes the German governmental organization. Finally the Constitution provides rules for the case that a state of defense occurs. It ends with temporary and closing provisions485.

The German appreciation of “Constitution” agrees with the understanding of Constitution as the fundamental law of the nation486. It provides the conditions which must be stringently complied with by all constituent parts of the nation; expressly speaking, of all governmental departments and the people. Because an all over compliance with the Constitution is a must, the nation is organized and therefore able to function as a government. The Constitution, functioning as the basic law for all German people, requires extra explanation, since at the time of its formation; it served only the western part of Germany. In 1947, as it turned out that the four victorious powers, Soviet Union, England, France and the United States, could not achieve a consensus about the future of Germany, a division of Germany was decided487. Because of this, the part later named GDR was separated from the rest of Germany. The Constitution formed in the western part of Germany and therefore only took effect in the old FGR. But at the time of its enactment it provided an easy extension to the separated parts of Germany, thus to the former GDR. Therefore, the Constitution was prepared for the eventuality of the reunion of all German parts (Article 23 Section 2 Basic Law old version), which was aimed at all times488. On the 3rd of October 1990, the GDR and the old FRG were reunited and became the Federal Republic of Germany, after the GDR submitted the necessary declaration of enrollment and the old FRG provided their assent to the extension of their Constitution to the joining parts489. Since then, the Constitution of 1949 – its alterations notwithstanding – is the highest ranking ← 66 | 67 → law in Germany. Superior law always supersedes lower-ranking law. This applies to all law, e.g. statutory norms, legal decrees, regulations under public law - in descending order - must comply with the Constitution; as it is the case in the United States of America. This provision is fulfilled by the compliance of the precept that each lower-ranking norm must comply with the next superior norm490, causing – in case every norm is correctly enacted - a complete chain of constitutionality traceable through all levels of law.

2.2. Separation of Powers

Whereas the structuring of democracy is diverse throughout different societies, the German way of embodiment is similar to that of the United States, considering that a separation of power is implemented to ensure the just handling of all involved parties that have some sort of power, and therefore to minimize any abuse of power491. Despite the general implementation of the principle of a separation of powers on the vertical and the horizontal level, and the therefore mentioned “matchableness” of both societies, the realization of this principle took place differently in Germany from how it did in the United States. While, as stated in the discussion of the system of the United States, the American society chose a presidential system, the German system, in contrast, is a parliamentary democracy492. The result is that both systems have the same power separation on the vertical level, with its constitutional organs of legislative, executive and judiciary, and the same separation on the horizontal level, which contains elements of federalism. Yet the particular institutions on the vertical level are hardly comparable to each other493, nor is the federalism as strongly marked in Germany as it is in the United States494.

The separation of power is implemented on the horizontal level by a strict separation between the legislative, the executive and the judicative branch. Among the three branches, the lawmaker (legislative organ) has precedence; the judiciary and the executive departments solely ensure the proper execution of the law495.

Germany is a federal commonwealth (Article 20, Section I Basic Law), which means that Germany as a nation is formed by sixteen states, which - sovereign from each other - in their entirety form the federal government. The ← 67 | 68 → term “sovereign” is to be used restrictively, referring to the fact that such is not absolute; the constituent state’s sovereignty is restricted in several areas of law or policies, which therefore are reserved as being outside of a state’s control. Since the federal constitution is the highest law of the German nation, all parties are bound to its provisions. Even if it is a federally enacted law, it is beyond dispute that it refers to the single states in same way that it does to the federal state. No differentiation is made within its lines between federal and state in respect to the addressed audience. Therefore, the people must have accepted the federal law as their superior law496. The principle of democracy requires the approval of the people, not such of the government of the constituent state, to acknowledge the federal law as the super ordinate law, because it is demanded that the state authority is executed by the people (Article 20, Section II, sentence 1 Basic Law). This percept, though, is only realized indirectly in the German system. “Indirectly” refers to the circumstance that the people, avoiding personal appearance, do not act in person, but they choose representatives, who fulfill their will for them (Article 20, Section II, sentence 2 Basic Law)497. These representatives498 of each state499 then gave their approval to the nowadays effective federal constitution, and thereby acknowledged it as the highest norm of the German nation, which had a binding effect on all governmental parties as a result, and thus the states. The Constitution, being essentially a federal norm, defines the competence of the individual states in relation to the federal state. With that, the division of powers depends upon whether the federal government takes action to regulate a legal area. While this federal regulation might create the impression, at least from the American point of view, that the federal central authority has too much power, the distribution becomes acceptable, when consulting the borders of Article 79, Section III Basic Law, due to which no law can be constitutionally passed without the participation of the states500. Although the states have already contributed to the creation of the Constitution, their participation must continue in every future federal lawmaking.

← 68 | 69 → Speaking of Germany as a federal state, federalism is understood in the sense of a “cooperative federalism”501. The general sense of federalism is the sovereignty of those parts, which in their entirety constitute the country. This as a starting point leads to the aim of reducing the amount of sovereignty for reasons of functionality by keeping up the idea of parts forming a union. So, by basically holding on to the federal organization of the nation one aims at a preferably high amount of cooperation between the constituent states themselves and the federal state502. With this idea, one must bear in mind that the respective states do not solely function as purely executive organs of the federal government, which would contradict the federal principle503, especially since the actual situation in Germany shows that the federal government mainly sets the law, while the respective states are mainly busy with administrative work504. Moreover, the Basic Law of Germany demands that the government of each state be bound to the basic democratic principles (Article 28, Section I sentence1 Basic Law), consequently, the states are only able to shape their own governmental order within these federal defined limits505. However, the statehood of each of the German states is constitutionally guaranteed506, thus they are authorized to build their own governmental institutions on every horizontal level507. As a result each state has its own governmental institutions in concurrence to the institutions of the federal state; as in opposite to the system of the United States where each state has its own governmental institutions parallel to the ones of the federal state. The relation between the distribution of authority between the states and the federal government in Germany is determined in Article 30 Basic Law. It shall be deemed that the administration of government is in the authority of the constituent states, as long as the Constitution does not explicitly mention federal competence to a subject matter. This rule is repeated in Article 70 Basic Law specifically for the legislative branch, Article 83 Basic Law revisits this principle for the executive branch and Article 95 Basic Law does so for the judicative branch508. The fact that lawmaking in the majority takes place on the federal level anyway results from the far reaching powers which are given to the federal government.

Article 72, Section III Basic Law – and the precept of Article 31 Basic Law which demands that in the case of diversions of state regulation and federal ← 69 | 70 → regulations, the federal rule outdo the state rule509, supports the lawmaking of the federal government.

2.3. Constitutional Powers

The principle of power separation demands a separation between the three known branches. However, nothing is said about how this separation is implemented within a government. The power vested not only in one organ but in several, led to the formation of, in generalized terms, four constitutional powers at the federal level, the states mirroring this setup one-on-one.

On the federal level510 the legislative power to begin with is the Bundestag (Congress), which is the federal legislative branch. As mentioned above, the federal government must integrate the legislative branches of each state when forming new federal law511. This precept is realized through the creation of another federal legislative department referred to as Bundesrat (Federal Council/ Assembly), which despite the fact that it is a federal institution, consists solely of the representatives of the states512. Both institutions work together when federal law is to be created.

The executive branch is the Bundesregierung (Federal Government) and all administrative agencies are under the federal authority.

Speaking of the President of the United States as the executive branch, it must be mentioned that Germany does have the institution of a President as well, but with a very different function. The President in Germany can only be carefully counted to the squad of constitutional powers513. He mainly has a representative function, like representing the German nation in the world (Article 59 Section I Basic Law). Aside from other functions, which cannot be discussed in detail here, he must approve every law which enactment is aimed at by the federal government. As stated, the institutions of each of the respective states mirror those of the federal government, of course, with exception of the ‘Bundesrat’. The position of the federal president is taken by the governor of each state514.

2.4. Summary

Due to the limited - when set in comparison with the U.S. - extent of federalism in Germany the states and the federal government almost seem to be coalesced with each other. The advantage of this strong bond is a huge amount of homogeneity in all entities, which again benefits to consistency and thus stability of a nation, which after all is a unity.

← 70 | 71 → 3. German Criminal Law

Criminal law, as it is effective in Germany today, is distinguished between substantive criminal law, which regulates the requirements for punishment and its consequences, and criminal procedural law, which deals with the inquiry and sentencing of punishable acts, thus with the imposition of the norms of substantive criminal law and the law regarding the execution of sentence, which serves the enforcement of the criminal verdict515.

3.1. Constitutional Base of Criminal Law

The right of the legislator to punish is codified in Article 74, Section 1 Basic Law. The here determined fact of criminal law being a part of the concurrent legislative power reveals that the existence of a legal punishment is constitutionally presumed516. However, nothing is said about how behavior must be in order for it to be legitimately punished by the legislator. With that, it is referred to the question of the substantial content of criminal relevant behavior517. This answer is sought by taking the task of criminal law into account, which in Germany is understood to be the subsidiary protection of legal goods518. The premise that a criminal norm must always aim at protecting a legal good, serves a criminology criterion to the legislator for what to punish519.

The formal basis of criminal law in the German Basic Law is provided in Article 103, Section II Basic Law, which demands that only a written law is able to constitute a crime and legitimate punishability. In the same way that Article I, Section 9 of the U.S. Constitution prohibits “ex post facto law”, thus retroactive legislation or even individualized sentencing regulation, Article 103, Section II Basic Law lays the foundation for substantive criminal law in Germany520. As seen above521, the entire criminal investigation proceedings up to and including the criminal trial itself are established in the U.S. Constitution in order to control governmental intervention at the constitutional level. Since the Constitution is not only the provider, but also the conservator of the civil rights, the placement of such regulations within the Constitution seems to be the appropriate place for establishment. Unlike in the United States, the German Basic Law does not provide any detailed regulations and provisions of how to lawfully proceed if someone is incriminated of an offense. Germany is a written law country and therewith the respective legal Code shall present its law as a unified whole, containing both general and abstract rules and principles which can be applied to every legal problem. This character of German law as a code and statute-based legal system reveals itself to its utmost in the sector of ← 71 | 72 → criminal law. Consequently, the Penal Code must contain any legal fact which constitutes a crime, in order to legally determine a behavior as criminally relevant. This requirement results from Article 103 Basic Law and its doctrine of nulla poena sine lege522. In accordance with the traditional division523, Criminal Law is separated from Public Law. Nevertheless, Public Law524, in the sense of Constitutional Law and Basic Rights, has a strong effect on German Criminal Law and its code. In the German opinion the Constitution sets the frame of all law, including criminal law, and surely provides and therefore secures the fundamental rights. Yet, the true structuring of the relationship between the state and its citizen is made by subconstitutional law. In Germany, the formal elevation of fundamental criminal maxims towards the constitutional level is not deemed to be necessary; yet the substantial foundations are set in the Basic Law. From this it follows that elementary laws referring to the criminal procedure, such as investigation proceedings, court handlings and the final imposition of sentence, as opposed to the U.S. constitutional arrangement, are not established in the German Basic Law, but are enacted within an extra code, the Code of Criminal Procedure525. This law, for instance, demands that similar to Article I, Section 9 U.S. Constitution, a criminal prosecution can only take place if someone has been criminally charged by a public prosecutor526. Remarkably, the German criminal trial does not provide the institution of a jury. Compensating the principle of the autonomy of the court, the judge and his decisional power are expressly held up high. The idea of civilians without any sort of judicial knowledge and understanding being able to decide prior to the start of a main trial if such must takes place or not, and even are appointed to pass a verdict at the end of a trial seems utterly misguided. Therefore, the judge in Germany is the only one authorized to pass the verdict and adjudicate sentence, as opposed to an American trial, where the judge generally is competent to solely assess and pronounce the sentence, according to what the jury has previously decided. However, Penal Courts in Germany are frequently courts of lay assessors. A court of lay assessors is a court in which volunteer judges do jury service, which is the case if a lower court (Amtsgericht) deals with criminal proceedings where it is about the imposition of a penalty of up to four years imprisonment and in the trial chambers at the higher District Courts (Landgerichte). I.e., the judge is not responsible as an individual for the decision, but he shares the decision-making power with the volunteer judges, these are honorary judges who participate independently and are equipped with the same voting rights as the professional judge at trial. They fully judge over the guilt or wrong of an accused person and bear the same responsibility for the passed sentence as ← 72 | 73 → the professional judges527. Either way, all these regulations are not set in the German Basic Law, but since concerning the criminal trial, are established in the German Criminal Code of Criminal Procedure/Trial Code (StPO). However, the civil rights in connection with the basic principle of legality in Article 103 Basic Law constitutionally influence the German criminal law. Since all law must be compliant with the Constitution, and the German Basic Law in principle establishes inviolable civil rights and thereby sets the frame for criminal law, the German way of stating provisions regarding the criminal procedure as subconstitutional law, instead of listing it in the Constitution, does not serve any cause for concern. Regardless of the level of establishment, both societies, Germany and the United States, follow similar, strict, fundamental, codified principles in criminal prosecution. Whenever dealings regarding legal issues are uncertain and an answer cannot be found in the German Criminal Law, one refers to the Constitution and its Basic Rights. Summarized, the sources of German criminal law primarily lie in the Penal Code, but such, after all is subject to the German Federal Constitution of 1949 and its various legal rules528 as well as constitutional principles529, as Article 20, Section 3 Basic Law states, the legislature shall be bound by the constitutional order, whereas the judiciary is bound by law and justice530. Case law531, as well as legal science532, does have a great impact on the application of the precepts of the Penal Code. Even though they are not binding, in the end, German criminal law is influenced by all three separate sources. Wheras the German legal system is not bound by precedents like common law533, previous decisions of higher courts are observed and considered in practice anyway.

The primary source of sentencing is the German Penal Code. Such is divided into a general and a special part; the general part states basic principles, e.g. principles of criminal liability and culpability; mitigating and aggravating factors which apply to all offenses; the territory of validity of the criminal law; the doctrine of crime and its legal consequences, etc. The German way of applicating law takes place correlating the provisions stated in the general part to the norms established in the special part. The German tradition of legal abstractness asks for the establishment of such a general part in a code as a ← 73 | 74 → prefix, which provides leading principles and general concepts relating to the following norms534. The special part of the German Penal Code contains specific criminal offenses (murder, assault, larceny, etc.), arranged according to the protected legal good, for instance, into categories as offenses against life or physical health, offenses against property, offenses against the environment and so on, and thereby set the general frame of punishment according to the respective wrong of the offense.

3.2. Legislative Competence and Institution

Just as the U.S., Germany is a federal republic. Federalism in Germany and in the U.S. includes the federalist element of an unity of many politically independent entities. These political entities are called states in the United States and “Länder”535 in Germany. The division of legislative powers between a national government on the one hand, and its constituent states, on the other, is implemented by the former being a government of enumerated powers, while the latter are governments of residual powers. The direct operation, of each of these centers of government takes place for the most part in their own assigned sphere and takes effect upon all persons and property within the respective territorial limits. The supremacy of the national government is in force in the case of conflicting state power536. In as much as all these elements are equally realized in both societies, the provision - as it is effective in the American system, stating that each center must be equipped with the complete apparatus of law enforcement (legislative, executive and judicial department) - does not fully apply to the German federal system. As mentioned above, Germany implemented a “cooperative federalism”537. From this it follows that the German system does not have a parallel panel through the entire apparatus of law enforcement in the way the American system has. The system according the legislative responsibilities is better described as a system of concurrent panel, in which the states compete with the federal government. If the national government regulates a field of law, in most cases, the states are not authorized to release norms any longer. At first sight, the distribution of legislative powers of the federal government (Bund) and its constituent states (Länder) as stated in Article 70 Basic Law empowers the state to enact law. According to Article 70, Section I Basic Law the federal government may only take over state powers and pass laws, if the Basic Law expressly permits for such. In fact though, most of the legislative responsibilities lie with the federal government, so that in practice of the majority of lawmaking takes place on the federal level538. This is due to Article 70 Section 2 Basic Law which reveals the true distribution of power in the field ← 74 | 75 → of lawmaking, by leading the focus towards the requirements of Articles 71-74 Basic Law. Thereafter it is to demarcate between the exclusive federal authority to enact law (Articles 71, 73 Basic Law)539 and the concurrent authority540. As the designation implies, in the areas of exclusive legislation (Article 73 Basic Law), the federal lawmaker is the only legal organ which is competent to promulgate law. According to those subject matters which are stated in Article 74 Basic Law the states are authorized to enact law as long as the national government does not make use of its power to do so541. However, the federal legislator did enact law for the area of criminal law in accordance with Article 74 Basic Law; consequently the states are no longer authorized to enact criminal norms. In the example of criminal law, it can be shown that Germany is not as pervaded by federalism as the United States is. Due to the existence of areas of concurrent legislation, the German order requires a norm like Article 74, Section I, No. 1 Basic Law, which states that the competence to enact law lies within the states unless the federal government takes action. Due to an enhanced sovereignty of the states, thus a missing establishment of concurrent legislative competence, this norm has no counterpart in the United States542. When the federal government of Germany releases criminal law it is binding on the entire nation. There is one code in Germany, which provides the substantive criminal law for the entire country. Thus it is equally effective for the federal government and the states. The same applies for the federally enacted criminal procedural law. Since there is only one code543 providing the law for all, such problems as conflicting laws do not exist in Germany. Questions which occur in the United States, whether the government is competent to enact hate crime legislation despite that the states have the power to enact criminal law, in consequence, are not relevant in Germany.

← 75 | 76 → A bisectioning into federal and state matters, as it took place in regard to the American presentation, is not required in the following.

3.3. Competence and Jurisdiction of Criminal Courts

Whereas there is one Penal Code in force, and therefore the problem of conflicting state and territorial criminal laws does not exist, the problem of diverse jurisdiction could occur anyway. This even more depends on whether there is only one proper channel for criminal procedures.

Germany’s territory is divided in twenty-four districts. Each of the sixteen states is subdivided in several districts, the number depends on its size. Each district provides an own appellate tribunal for criminal trials. The normal channel of a criminal trial starts with a claim arising under a state court. Therefore, a criminal trial, in simplified terms, starts with a suit at the “Amtsgericht”, which is the lowest ranking court in Germany for criminal trials, and which is addressed in cases where a sentence is not to exceed four years of imprisonment. The next higher court, the court of appeal is the “Landgericht”, followed by the highest regional court, the “Oberlandesgericht” 544. Contrary to this normal channel, where the “Landgericht” functions as an appellate court for several lower courts545 of first instance, namely for the “Amtsgerichte”, and the “Oberlandesgericht” serve as the appellate tribunal for the “Landesgericht”, the “Landesgericht” itself and even the “Oberlandesgericht” may function as entry-point for a lawsuit, depending on the seriousness of the crime. Whereas until this level of appeal the jurisdiction has been a purely state based jurisdiction, the highest appellate court is a federal court, the Federal Supreme Court546, settled in Karlsruhe. So there is parallel jurisdiction on the state level, after all each state provides its own stages of appeal, but the final authority is a joint federal facility. In contrast to the American criminal trial there is no parallelism between the jurisdiction of federal courts and state courts.

German criminal courts primarily operate under state authority, but because of the supreme jurisdiction being subordinate to the federal government, and state courts also uniformly apply federal law, court decisions can not drift apart too far. Since in case of appeal, the final verdict may be passed by a federal court, such sets nationwide even construal measures for the future and thereby promotes homophonous standards across the states due to the fact that the lower state courts will orientate themselves towards the determinations and precepts published by the pronounced decision547. The Federal Supreme Court is not to be equated with the Constitutional Supreme Court. Although both are located in Karlsruhe, they have different functions ← 76 | 77 → and thus are different courts. The here addressed Federal Supreme Court is the highest federal court in civil and criminal matters. It serves as an appeal548 and a revisal549 court at the same time. Whether it has jurisdiction as an appellate court or as a revisal court depends on the individual case, on the matter in dispute and on the previous courts which dealt with the case. The Federal Constitutional Court in contrast decides a case, if legal questions arise directly from the Constitution and its Basic Right catalogue. Its jurisdiction is independent of any judicial appeal stages, it is, a limited jurisdiction court which is extracted from the normal channel. Its task is to watch over the constitutionality of governmental actions and it therefore ensures that the legal measure of a public agency, a law or a judgment does not violate any constitutional precepts.

3.4. Manifestation of Criminal Law

The structure of crime according to German criminal law is tripartite: The act of the offender, the unlawfulness/illegality of the committed act, and the culpability of the offender manifested in the act. The “act” and the “unlawfulness” of the offense constitute the penalized wrong of the behavior, whereas “culpability” refers to the liability of the offender for the concrete realized wrong. An act is unlawful in the formal sense, if it breaches an effective legal prohibition or commandment550. It is substantially unlawful, if a legal good is violated by it in a socially damaging way, which cannot be sufficiently combated by other non-criminal legal devices551. Under the valuation aspect of the norm, the substantial wrong presents itself as a violation of a legal good, and the need of the relevant behavior to be legally addressed. The substantial content of wrong therefore has importance not just for the offense type, but also for the unlawfulness of an act552. The quantity and the quality of the substantial wrong are moreover crucial for the degree of culpability. If an offender realizes wrong and criminal law constitutes the preventive necessity to prosecute him, the offender must also have burdened himself with guilt. Depending on what function the term ‘culpability’ refers to, it is to distinguish between the “culpability, which reasons a penalty”553 and the “culpability, which is relevant in the individual case554555. The “culpability, which reasons a penalty” depends on the committed degree of wrong; such is ← 77 | 78 → determined by the relevant offense category. Thus the “culpability, which reasons a penalty” embraces guilt as epitome of the subjective premises for imputation, which reasons the imposition of punishment556. Considered in connection with the culpability of the individual offender, thus the “culpability, which is relevant in the individual case”, enables one to impose the concrete sentence557. Therefore, the wrong and the culpability together define the degree of the concrete penalty558. Whereas the legislator determines the general penalty frame “relatively” (except for Section 211 Penal Code)559 by considering the wrong committed and the thereon based general culpability, the concrete penalty - in respect to the individual offender - is to be meted out during the sentencing process of the court. The path how to determine the culpability, which is relevant in the individual case, is shown in general for all offenses in Section 46 Penal Code. Accordingly, a court reasons the concrete degree of penalty which is to be imposed, by starting off within the frame that is provided by the legislator in the codified offense. The facts that are taken into account in accordance with Section 46 Penal Code are the same that were taken into account by the legislator when determining the general penalty frame560. The difference is solely that the court considers such concretely, in relation to the case and the individual perpetrator’s personality. Insofar culpability is the starting point for imposing a penalty, by asking if one is blameworthy for the wrong committed, and asking if there are any concrete reasons (mitigating circumstances) which exclude (diminish) the criminal liability561.

3.4.1. Enhancing Criminal Penalties according to German Criminal Law Doctrine

As mentioned, the threat of punishment in German norms is determined “relatively”, by setting up the range of punishment, the law determines the maximum - and the minimum limit and therewith serves the points for orientation in sentencing562. For the average case, the middle of the range of punishment is to be imposed as the concrete sentence563. In other cases, they are to be aligned in reference to the concrete degree of wrong - and culpability of the offender564. The maximum degree of punishment comes into ← 78 | 79 → consideration for acts whose severity level is considered to be at the top of the frame and which the offender committed in full responsibility565.

The concrete sentence within the limits legally determined by a norm is to be meted out by the judge in an arbitrary decision, according to Section 46 Penal Code as adjudication. The assessment of penalty in Section 46 Penal Code though, is a decision to be made in equity and good conscience, bringing with it all the intricacies which come with personal decision making566. Moreover, the possibility of verifying the just imposition of sentence through a higher court is restricted567. It can be reviewed considering the misuse of discretionary power, but not according to justness of the decision568. This must be taken into account when arguing in support of a general penalty enhancement for certain aims or motives of the offender, but favoring such to be implemented within the actual forming of Section 46 Penal Code.

On various occasions, the legislator constricts the breadth of judicial discretionary power by adding aggravating or mitigating circumstances to an offense569. These are circumstances which usually would play a role in the process of determining the correct sentence through the judge. The determination of aggravating or mitigating cases applies in various legal modes by statutory law:

Details

Pages
LXI, 337
ISBN (PDF)
9783653036411
ISBN (ePUB)
9783653996449
ISBN (MOBI)
9783653996432
ISBN (Book)
9783631642207
Language
English
Publication date
2014 (July)
Published
Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Wien, 2014. LXII, 337 pp.

Biographical notes

Christine Marie Shavers (Author)

Christine Marie Shavers, born in the USA, studied law at Ludwig-Maximilian-University in Munich (Germany).

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Title: Criminal Law Dealing with Hate Crimes