Abstract
Reviewed by: Julian R. Murphy, Judge’s Associate, High Court of Australia, Australia
Readers of comparative legal scholarship usually hope to learn more about the laws of their own country, by seeing them compared to those of another. What, then, can a book comparing the criminal laws of Germany and the USA offer readers in Australia and New Zealand? (No Australian cases or legislation are referenced in the near 700 pages, although New Zealand garners one rather disparaging mention in the discussion of attempted crimes at p. 353.) The answer, of course, is that after considering foreign legal systems and modes of thinking, we see our own in a new light, with a new awareness of our peculiarities and strengths. Markus Dubber and Tatjana Hörnle are uniquely qualified to conduct this comparison. Dubber is a giant in the field of comparative criminal law, author of the first German language book-length study of American criminal law and co-editor of the seminal The Handbook of Comparative Criminal Law (Heller & Dubber, 2010). Hörnle is also a comparatist of note having edited The Oxford Handbook of Criminal Law with Dubber (Dubber & Hörnle, 2014); she also holds the august position of Professor of Criminal Law, Comparative Criminal Law, and Penal Philosophy at Berlin’s Humboldt University.
The book is organised into three parts named with typical German functionality – ‘Foundations’, ‘The General Part’, and ‘The Special Part’ – each with between three and eight chapters. ‘Part I – Foundations’ opens with a discussion of the legal philosophical principles upon which each system is based (including the principle of legality and competing rationales for punishment). The book then moves, still in Part I, to an account of the overarching Constitutional frameworks of Germany and the USA, and how these superstructures shape the substantive criminal laws in each place. Part I ends with a brief overview of the criminal procedure and respective legislative schemes of each jurisdiction.
The structure of ‘Part II – The General Part’ will be familiar to anyone who has ever taken a course in criminal law or read an introductory text to the same. In a commonly adopted formula, the authors step through each of the theoretical concepts essential to an understanding of Western systems of attributing criminal responsibility. These are actus reus, mens rea, causation, complicity, inchoate offences (attempt, conspiracy, etc.), justifications (self-defence, necessity, consent, etc.), and excuses (duress, entrapment, insanity). Part II also includes a chapter on corporate criminal liability (Chapter 11), which no general study can afford to omit in the 21st century (indeed, at a little over 10 pages it could have been considerably longer). To say the approach is formulaic is not to denigrate it. The thorough, doctrinal breakdown conducted in Part II is an important and necessarily extensive component of the book. It is the spine from which the more peripheral chapters hinge.
‘Part III – The Special Part,’ with its focus on specific offences, is where the book telescopes from the general to the particular, and in doing so exhibits the authors’ special interests and priorities. Homicide predictably merits the most fulsome discussion but, surprisingly, money laundering receives as much attention as sexual offences, while hate crimes follow close behind. This idiosyncrasy offers reader from Australia and New Zealand, an introductory overview of two areas of law that are under-researched and under-theorised in our part of the world.
One major tension in comparative legal studies lies between the study of formal legal rules and informal socio-legal contexts or cultures (Bell, 2008). Dubber and Hörnle’s book is best described as falling within the former category, though its early chapters, particularly Chapter 5 (Procedural Contexts), acknowledge the second strain of scholarship. The relatively modest attention paid to the socio-legal contexts of both countries might be the main cause of complaint for readers of this book. The authors neglect to delve into the fine-grained details of criminal procedure, nor the necessarily quotidian running of the criminal courts in each country (compare Feely, 1979). While this does feel like an unfair criticism – after all, how much can one book do? – the book is left open to criticisms of abstract academicism, being out of touch with the reality of how the criminal justice system operates on the ground in these two countries.
We don’t learn, for example, about the laws of evidence; how courts in the two jurisdictions sieve, parse, and weigh the material that comes before them. This is a shame because evidentiary rules often expose the values and prejudices of the society in which they are in force. For example, before Australia’s recent overhaul of the evidentiary provisions relating to sexual offences, evidence of a rape victim’s clothing was regularly put before juries in the apparent belief that it would assist them to determine whether the victim consented to sexual activities (Young, 1998, pp. 46–47; for the American position see Sterling (1995)). Dubber and Hörnle do not descend to this level of detail, which, in the end, is hardly surprising, given the book’s nominated focus on general theories and frameworks for determining criminal liability.
In all, the book is an impressive study of two significant arenas of criminal law: the largest English-speaking, adversarial jurisdiction in the world and, arguably, the most important inquisitorial, civil law country. While it is always possible to point to minor shortcomings in a project of this scope, one would not expect this comparison of German and American criminal law to be surpassed in the immediate future, at least not before the publication of the second edition.