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The German Criminal Code: A Modern English Translation

Bohlander, Michael

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Abstract

German criminal law doctrine, as one of the more influential ones over time and on a global scale, takes rather different approaches to many of the problems of substantive law from those of the common law family of countries like the UK, the US, Canada, New Zealand, Australia etc. It also differs markedly from the system which is most often used in Anglophone writing as a civil law comparison, the French law. German criminal law is a code-based model and has been for centuries. The influence of academic writing on its development has been far greater than in the judge-oriented common law models. The book will serve as a useful aid to debates about codification efforts in countries that are mostly based on a case law system, but who wish to re-structure their law in one or several criminal codes. The comparison will show that similar problems occur in all legal systems regardless of their provenance, and the attempts of individual systems at solving them, their successes and their failures, can provide a rich experience on which other countries can draw and on which they can build. The book provides an outline of the principles of German criminal law, mainly the so-called 'General Part' (eg actus reus, mens rea, defences, participation) and the core offence categories (homicide, offences against property, sexual offences). It sets out the principles, their development under the influence of academic writing and judicial decisions. The book is not meant as a textbook of German criminal law, but is a selection of interrelated in-depth essays on the central problems. Wherever it is apposite and feasible, comparison is offered to the approaches of English criminal law and the legal systems of other common and civil law countries in order to allow common lawyers to draw the pertinent parallels to their own jurisdictions.

Citation

Bohlander, M. (2008). The German Criminal Code: A Modern English Translation. Hart Publishing

Book Type Authored Book
Publication Date Jul 1, 2008
Deposit Date Sep 16, 2011
Publisher Hart Publishing
Series Title Studies in internatíonal and comparative criminal law
Publisher URL http://www.hartpub.co.uk/books/details.asp?isbn=9781841138312
Additional Information Criminal Law Review 2009 Publication Review The German Criminal Code: A Modern English Translation Edited by Michael Bohlander Reviewed by Jens M. Scherpe Subject: Criminal law *Crim. L.R. 308 Michael Bohlander's translation of the German Criminal Code (Strafgesetzbuch --StGB) is the first volume of a series entitled “Studies in International and Comparative Criminal Law”. It was followed shortly afterwards by the second volume of the series, Principles of German Criminal Law by the same author, to which the translation is meant to be a companion. The two volumes and those that will follow will undoubtedly greatly enrich and inform the debate on criminal law and criminal law reform. The “reforms” that have been implemented or proposed in the United Kingdom in the past months and years (such as ss.44-60 of the Serious Crime Act 2007 or the proposals in the Ministry of Justice's Consultation Paper, Murder, manslaughter and infanticide: proposals for reform ) very clearly show the need for an open and informed debate. When reading some of the statutes/proposals one is sometimes left wondering whether the draftsmen and women have been part of a learned discussion of the subject-matter at all. Critics of comparative law will of course argue that there is little to be gained by looking at a translated statute, even if (with the help of Principles of German Criminal Law ) such a translation is put into context. Bohlander himself (p.iv) gives the appropriate answer to this: “Obviously many facets of the German Code in their pure form will be unusable in other legal systems. However, the underlying principles are often very similar, if not identical, and where they differ markedly the differences in themselves can tell the reader something about his or her own system and maybe open up new avenues for research as to alternatives.” Indeed, the German Criminal Code has been very influential in many other civil law jurisdictions, particularly in Latin America. While drawing on the experiences from other (especially non-common law) jurisdictions is much more common in private law, we do find this in the work of some great criminal law scholars from the common law world. For example, George P. Fletcher has taken some inspiration from German criminal law (see, e.g. his articles in (1968) 77 Yale Law Journal 880, especially 913 et seq. and (1975-76) 23 UCLA Law Review 293, especially 306 et seq.). Bohlander spent more than 13 years on the bench in Germany before joining Durham University and has also worked internationally, thus combining not only academia and practice, but also experiences from two national legal systems. Therefore he is eminently suited for the work he has undertaken. The translated Code is accompanied by an introduction to German criminal law (pp.1-9), depicting, inter alia, the ideological approach to criminal law in Germany, the sources and hierarchy of norms, and the principles of interpretation and the role of precedent. Although by necessity brief, these few pages offer the reader a good insight into some of the fundamentally different approaches (English academics will be delighted to read that their German counterparts are not considered “as the *Crim. L.R. 309 mere handmaiden of the judges, but as their guiding light” (p.2)), and suggest that Principles of German Criminal Law will be a stimulating and illuminating book. Space of course precludes a detailed discussion of the entire translation; therefore this review will comment on two points only. The first concerns § 34 (Rechtfertigender Notstand ) and § 35 (Entschuldigender Notstand ) StGB which Bohlander has translated as “necessity” and “duress” respectively. Indeed, the term Notstand in this context is very difficult to translate, and necessity and duress are good approximations. However, in English law both these words have very distinct (if not necessarily precise) meanings, which could lead the hasty reader--misleadingly--to assume that the content of the German norms is the same. As a matter of fact, § 34 expressly stipulates the conditions when an act is justified, whereas the same cannot be said with certainty for necessity in English law. Perhaps a more literal translation, such as “justifying necessity” and “excusatory necessity” would have made the distinctions clearer. Also, both § 34 and § 35 StGB are not limited to specific crimes, i.e. they also--unlike duress in English law--in principle apply to homicide crimes including murder. The second point deserving special mention concerns the homicide offences. As Bohlander acknowledges in a footnote (p.147), there are considerable doctrinal debates on the structure of the homicide crimes in Germany itself. He therefore did not use the literal translation of the German terms but one that reflected the underlying doctrinal approach that he follows. It is perhaps somewhat unfortunate that he then translated the “base” crime in § 212 StGB as “murder” and consequently the aggravated and mitigating forms in § 211 and § 213 StGB as “murder under specific aggravating circumstances” and “murder under mitigating circumstance”. An alternative would have been actually to use the literal translations (murder for § 211 and manslaughter for § 212) or to name the base crime “homicide” in order to avoid entirely associations with the English terms and doctrines. On both points different opinions seem possible and the above remarks should be understood as a comment rather than a criticism. Undoubtedly Bohlander will have thought about this in depth, certainly for much longer then the author of this review, and will have excellent reasons for his choice. The translation of the German Criminal Code that Bohlander has delivered is accessible (perhaps even more so than the German original) and also consistent, which in itself is a remarkable achievement. Together with his Principles of German Criminal Law Bohlander's translation will greatly enrich the legal discussion. They make a wealth of materials accessible to the non-German-speaking world. It is to be hoped that these materials will be used when reforms of the law, for example the law on homicide and on offences against the person, are considered. As with all comparative legal work, what is to be found in one legal system can in no way be determinative for another. But looking at the way other jurisdictions have dealt with a social problem or a certain fact pattern, in legislation or jurisprudence, can help one to understand--and question--one's own legal system and further the debate on how issues could potentially be addressed. The German Criminal Code therefore cannot be recommended highly enough. Jens M. Scherpe University of Cambridge Crim. L.R. 2009, 4, 308-309


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