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Criminal Law Dealing with Hate Crimes

Functional Comparative Law- Germany vs. USA

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Christine Marie Shavers

This study aims at providing a contribution to the current issue of hate crime. It analyzes the possibilities which are served by the German and the US American law to penalize bias-motivated crimes, while considering the historical and social background of both societies. It is questioned which legal goods are harmed by the committal of hate crime and whether the German penal law is suitable to address the wrong of hate crime and whether it is capable of properly punishing this sort of crime in respect to the blameworthiness of the offender. By applying the functional method of law comparison, understandings regarding the handlings of hate crimes in the USA and in Germany are exploited and, as a result, possible solutions for weaknesses of the prevailing law are offered.
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Chapter 1 Methodical Introduction

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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...

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