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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 2 Preparatory Country Report

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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...

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