Comparative Criminal Law seems to be on the rise, at least in terms of standing on its own feet. However, this was not always the case. When looking into traditional textbooks on “comparative law”, it is amazing to see that this discipline, as a matter of course, seems to have been considered a realm of private law – as if comparison of criminal law was a quantité négligeable that, for whatever reason, did not merit explicitly being dealt with. It is this lack of attention that this book aims to change.
Whilst in recent years “Comparative criminal law” has begun to gain recognition as a discipline of its own, both in research and teaching, when measured by the language and number of publications in this field, one could get the impression that this development is a phenomenon of the English speaking common law world. In English common law publications one will hardly find a reference to what is going on in other legal regions, in particular in continental-European civil law – unless those scholars write in English. Seemingly, in order to be taken notice of, continental-European comparatists – rather than writing in their own mother tongue – have to present their thoughts and findings in English.
This language issue, however, is not the only reason for editing this originally German publication in an updated English version. More important is the novel concept and manner in which comparative criminal law is analysed and presented in this volume. Traditional literature on this subject focusses on specific aims or methods of comparing criminal law, or to present the law of choicely selected jurisdictions or “legal families”. In thus narrowing the field of vision, one runs the risk of prioritising a method of comparison without first having gained a full picture of perhaps better tools available. Or even worse, only a few methodological debates are conducted without first having determined the aim the comparison shall be performed for. As a result, this type of theoretical discourse does not offer much benefit for practical comparative work. So one of the most important lessons learned from traditional literature on comparative law is that you cannot discuss methods without first having determined the aim. As these aims can be very different, if not even of greater variety than commonly assumed, it cannot be ignored that there is no “one-size-fits-all”-method in comparisons of criminal law, theory and practice.
It is based on these insights drawn both from long-term experience in comparative practice and theoretical studies, that this publication was conceived. Being aware of the interdependence of aims and methods, the appropriate way to proceed is to first clarify and describe the various purposes and functions comparative criminal law may serve. Instead of the widespread tunnel vision by which a specific comparative goal may be considered as the general one or a particular method as the only possible one, one must be aware that comparative criminal law can basically by divided into “judicative”, “legislative” and purely “theoretical” fields, eventually supplemented with what may be called the “evaluative-competitive” comparison of criminal law. When realizing the considerable diversity of possible aims and ranges that comparisons of criminal law may be employed for, still to believe that this variety of functions could be mastered with one and the same method would be an illusion. Therefore, after having determined the aim, it is necessary to show that the variety of goals requires a variety of methods. Whereas, in some cases, a “normative-institutional” approach may suffice, in others a more “functional” method may be indispensable. Alternatively, while a “cultural turn” may be needed in some situations, a “structural” analysis would be more appropriate in others. But not only does each type of a comparative aim require its best corresponding method(s), no less important is to know in which of the various phases of comparison which method fits best. As it concerns exactly this implementation of theory into practice that is usually neglected in this field, it is one of the main aims of this book to present the methodology of comparative criminal law in a way which eases and encourages its practice.
The importance of clarifying the comparative goal before selecting the method to be applied was proven in a relatively large comparative research project, performed by the Max Planck Institute for Foreign and International Criminal Law in Freiburg/Germany, under my supervision. This project was designed to find out in which – similar or different – manner various European jurisdictions would evaluate an exemplary homicide case: in what way and in which stage of the proceeding extenuating circumstances might be taken into consideration; what verdict and sentence might be expected and, finally, how the judgement would be executed and/or when and on what conditions early release might be granted (Albin Eser/Walter Perron (eds.), Strukturvergleich strafrechtlicher Verantwortlichkeit und Sanktionierung in Europa. Zugleich ein Beitrag zur Theorie der Strafrechtsvergleichung, Berlin 2015, 1144 pages). As it turned out, a comparative project as complex as this cannot be performed with only one method. While for a purely theoretical interest in the relevant crime provisions a legalistic comparison may suffice, for judicial purposes their application in practice, too, would need to be described, thus also requiring empirical comparisons. Additionally, if any possible differences are to be explained, this can hardly be done without the investigation of dissimilarities in the legal culture and tradition. Or to mention just one more legislative aspect, if one wants to explore what are more or less good stages in dividing the criminal proceeding in various phases, possibly with different options for taking aggravating or mitigating circumstances into consideration, then functionalist and structuralist methods become necessary.
Regarding the scholarly character of this book, as written by a German with a European background, the manner of argumentation, as well as examples selected, may differ from what Anglo-american or other audiences are most used to read, let alone the considerable number of references to non-English literature. However, as a specific feature of comparative criminal law is to become acquainted with other cultures and ways of thinking, it is hoped that this is desirable rather than frustrating and that a new foreign approach is welcomed as an enrichment.
As to its structure and content, the main parts of this book are designed to describe what goals might be reasonably aimed at by comparative criminal law and by which methods these goals might best be achieved. This endeavor is however only meaningful, once there has first been an introductory review of the development of comparative criminal law, its different concepts and general perceptions as well as its present status, showing the increasing importance and emancipation of comparative criminal law, and it is to this purpose that Part I of the book is focused.
Broad attention is then paid, in Part II, to a detailed analysis of the multiple aims and functions for which foreign law may be explored, starting with “theoretical” comparative (criminal) law (A) which may reach from mere broadening the own legal horizon by the reflection of foreign law to various comparative forms of micro, macro and basic research, followed by “judicative” comparative (criminal) law (B) as in the case of dependence of domestic justice on the consideration of foreign law or of mutual influences of national and supranational criminal law, continued with “legislative” comparative (criminal) law (C) which may be employed for the optimization and modernization of one’s own national law, for transnational adaptations of criminal law or for the development of supranational and universal criminal law, and finally leading to more recent visions of “evaluative-competitive” comparative (criminal) law (D).
As this wide diversity of possible aims cannot be satisfied in only one and the same way, the search for an appropriate methodology of how the comparison of various laws may be conducted requires detailed consideration (Part III), starting with an analysis of the dependence of the method on the (set) objective of comparison and an elaboration of the guiding principles and various ways of approach (A), and continued with the description of the five steps in the which the comparative investigation should be performed (B): the determination of the task to be pursued (1). The choice of the countries to be compared (2), the preparation of the country reports (3), the comparison of the findings (4) and the final evaluation, eventually with possible recommendations (5). After additional reflection on personal requirements and institutional equipment which may be needed (C), the methodology is summarized in a practical guide for performing comparative work in criminal law (D).
After a concluding review of what remains to be done (Part IV), finally the status of comparative criminal law is illuminated by an analysis and appraisal of current literature in this field (Epilogue).
Posted by Professor Dr. Dr. h.c. mult. Albin Eser, Director Emeritus at the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany.