Abstract
Now that we have reached the end of our journey through the history of criminal law of our legal-historical period, it is worth casting our minds back to our initial statements on broadening the perspective of the history of law and the history of criminal law. Contemporary legal history should examine the development of law in our legal-historical period critically, and its questions should be based on legal theory. In order to conduct such an examination, we considered the state of the criminal law at the beginning of the legal-historical period, and encountered Enlightenment philosophy’s postulate of a secular, rational and humane criminal law. Of course, we also saw the danger posed to the humanitarian aspect by Enlightenment thought’s utilitarian rationalism, which was opposed by Immanuel Kant’s philosophy of law. Furthermore, we observed that this philosophy was characterised by strict respect for legality and the citizen’s autonomy, but that criminal law on the whole maintained a high degree of punitiveness throughout the nineteenth century, moving from a protection of rights to the less strict protection of legal interests, and with interventionist, opportunist political and police criminal legislation as its constant companion.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
Cf. the report in: Frankfurter Allgemeine Zeitung of 12 December 2006, p. 11.
- 2.
This observation can be generalised, arriving at a criticism of the unreflectingly optimistic faith in progress that can be seen, for example, in a condescending criticism of medieval criminal law (already voiced by Enlightenment thinkers). On this, cf. Evans, Rituals, p. 2: “But the unhistorical, complacent and self-congratulatory aspects of this view have long been obvious.” As our survey has shown repeatedly, secularisation is no guarantee for humanisation. On this, cf. Evans, op. cit., p. 3: “Where ideology has been used to justify state violence in the twentieth century, it has often little in common with religion.”
- 3.
Vormbaum, Festschrift OLG Schleswig-Holstein, p. 71 ff., 74 ff.: purely optional liability for attempt; measures for reform and incapacitation; the offence of using threats or force (Section 240 StGB); the offence of abuse of trust (Section 266 StGB); omission to effect an easy rescue (Section 323c StGB); false testimony (Section 153 StGB).
- 4.
Gerhard Pauli, Rechtsprechung, uses a comparison of the criminal jurisprudence of the Reich Supreme Court from 1933 to 1945 and that of the Federal Supreme Court, arriving at the similar shared traits of materialisation, subjectivisation and a tendency towards social law (he understands “a tendency towards social law” as a tendency oriented towards what is “socially necessary”, which is closely related to materialisation).
- 5.
The development of the so-called factual point of view also forms part of materialisation and flexibilisation. One important characteristic of liberal criminal law is its subsidiarity to the legal order as a whole; it should not penalise behaviour that civil or public law does not regard as unlawful or at least does not consider worthy of punishment. While the factual point of view is not unproblematic as far as these areas are concerned, it can—for example in social and employment law—serve to create a fair balance of interests that legal regulations have not made sufficient provision for; however, in criminal law it only serves to expand the ambit of what is punishable and thus comes into conflict with the principle of nullum crimen sine lege. The “progenitor” of this line of argument is Hans-Jürgen Bruns (1908–1994). In his habilitation “Die Befreiung des Strafrechts vom zivilistischen Denken”, published in 1938, he additionally based it on the “healthy common sense of the people”. Despite this shady provenance, it is still highly popular with the criminal courts; on the character of the factual manager in connection with Section 14(2) StGB, cf. Marc Büning, Die Strafbarkeit des faktischen Gesellschafters einer GmbH. Münster 2004.
- 6.
This has also been pointed out by Michael Hettinger, NJW 1996, 2263, (2264): “It is possible to combat vermin and disease, and maybe even an enemy who has invaded the country. However, criminal law under the rule of law has other aims”. I doubt whether we are dealing with a (mere) “linguistic subversion of a legal field” [sc.: criminal law] (as stated by Hettinger op. cit., p. 2263).
- 7.
Elsewhere I have attempted to sum up the dubious elements in a ten-point list: Vormbaum, “Politisches” Strafrecht, in: ZStW 1995, 734 ff., 738.
- 8.
An understanding of continuity that was naive and immanent within the system, so to speak, existed early on in the 1950s. In his Einführung in die Geschichte der deutschen Strafrechtspflege, first published in 1947, Eberhard Schmidt stated that “the continuity of genuine theory of criminal law did not break off [during the National Socialist period]” (Eb. Schmidt, Einführung, § 360, p. 451; cf. § 5 footnote 204 above); naturally, this constitutes more or less the opposite of the understanding of continuity referred to here.—In the preface to this first edition, Eb. Schmidt states that he wrote this book “during the darkest days of German history”. As he immediately adds that the plan for the book already existed “before the political collapse”, these darkest days of Germany history can only refer to the days after this collapse. The survivors of the Holocaust and opponents of the regime will more likely have been of the opinion that the “collapse” marked the end of the darkest years of German history. Whether the author really tackled “aberrations in the field of criminal law in the spoken and written word”, as he attests in ibid., and “dealt with the different manifestations of degenerate [!] utilitarian jurisprudence” is a subject for future research; there are some arguments against it. Even with the recent substantial monograph by Simone Gräfin von Hardenberg, Eberhard Schmidt. (1891–1977), Ein Beitrag zur Geschichte unseres Rechtsstaats, 2009, a critical biography of Eberhard Schmidt is still lacking. Closer consideration should be paid to the statement of Georg Dahm in his letter to Eberhard Schmidt of 4 February 1948 (reproduced in the annual JZG 7 (2005/2006), 199 ff.), which the above-mentioned author interprets rather generously in Schmidt’s favour on page 366 ff.
- 9.
To point this out was regarded as improper, probably due to a silent, more or less reflective assumption of continuity (soon to prove double-edged), besides the need for loyalty between colleagues, which could also be termed cronyism.
- 10.
As already discussed in § 5, footnote 240; on this, cf. Francisco Muñoz Conde, Edmund Mezger. Beiträge zu einem Juristenleben. Berlin 2007.
- 11.
Pauli/Vormbaum, Preface, in: Id., Justiz und Nationalsozialismus, p. VII.
- 12.
Ibid.
- 13.
Arthur Kaufmann, Rechtsphilosophie und Nationalsozialismus, in: Recht, Rechtsphilosophie und Nationalsozialismus. (ARSP supplement No. 18). Wiesbaden 1983, p. 1: “It seems to me we must come to terms with the future, if we have to come to terms with anything”.
- 14.
On this, see Thomas Vormbaum, Glosse: Strafbarkeitslücken, in: JZ 1999, 613.
- 15.
Cf. Gustav Radbruch, Rechtsphilosophie. 7th ed., ed. Erik Wolf. Stuttgart 1970, p. 124 ff., 146 ff., 168 ff.
- 16.
Cf. the approach taken in Thomas Vormbaum, Aktuelles zur Lage des Strafrechts, in: Festschrift for Dimitris Th. Tsatsos. Baden-Baden 2003, p. 703 ff.
Author information
Authors and Affiliations
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2014 Springer-Verlag Berlin Heidelberg
About this chapter
Cite this chapter
Vormbaum, T., Bohlander, M. (2014). § 7 Review and Outlook. In: Bohlander, M. (eds) A Modern History of German Criminal Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-37273-5_7
Download citation
DOI: https://doi.org/10.1007/978-3-642-37273-5_7
Published:
Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-642-37272-8
Online ISBN: 978-3-642-37273-5
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)