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Criminal Law Dealing with Hate Crimes

Functional Comparative Law- Germany vs. USA


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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1.3.5. Result


Neither the legal good doctrine in its system-critical function, nor the social doctrine, nor the Constitution in connection with the jurisprudence of the Federal Constitutional Court is suited to withdraw a legislator’s competence to protect the legal good public peace by a hate crime norm. As a result, the German legislature is solely not allowed to aim a priori illegitimate purposes, which are unconstitutional targets. According to the Supreme Courts opinion, the main focus of evaluating the legitimacy of a norm is to lie on the legislator’s intent when enacting a norm; and the legislator finds the limit of the ambit of criminal law solely within the Constitution, in Article 1 Section 3 Basic Law. Anyhow, the main coinciding precepts of the system-critical function of the legal good doctrine, for instance, the exclusion of the criminal protection of just moral interest are to be upheld1788.

Therewith, in the end, the legislator must decide whether he adjudges a legal content to the public peace and how he ranks this value in the constitutional order of values. The above remarks, which lead to the conclusion of a criminal protection of the collective legal good public peace, must be carefully justified. The protection of collective legal goods can not be excluded in general, however, certain institutions may only be criminally protected insofar they are essential for human beings. Since it is impossible to answer the question whether the legal good of public peace is generally suitable to legitimize a...

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