Criminal Law; A Comparative Approach

Authors: Markus D. Dubber, Tatjana Hörnle
Publisher: Oxford: Oxford University Press, 2016. 671 p.
Reviewer: Stephen C. Thaman | March 2017

Markus Dubber and Tatjana Hörnle’s new book on comparative criminal law is perhaps the best exploration of the doctrinal differences between common law and German criminal law doctrine since George Fletcher’s ground-breaking 1978 work, Rethinking Criminal Law. But, on top of that, it is to my mind the first casebook on comparative criminal law suitable for use in the classroom.

Both authors are pioneers in the effort to put comparative criminal law on the scholarly map. Dubber collaborated with Kevin John Heller in editing the Handbook of Comparative Criminal Law (2010) which includes chapters on 16 different countries from common law, civil law, Asian, and Islamic law traditions. He then collaborated with Hörnle in editing The Oxford Handbook of Criminal Law (2014), which concentrates on the great systems of criminal law, their analytical methodologies and the dogma of the general and special parts of criminal codes.

In this new book, Dubber and Hörnle compare the most influential civil law system in the area of criminal law, that of Germany, with common law approaches, as well as that of the 1962 Model Penal Code (MPC), when it comes to the general part (which deals with principles of criminal law, mental states, justifications, excuses, punishments, etc.), and U.S. federal law, when it comes to sentencing and recent legislation dealing with organized crime. The prime case material exemplifying the MPC approach comes from New York, where Dubber, who has written extensively on the MPC, taught for many years. Dubber, who now teaches at the University of Toronto, also spices up the common law comparative material with important Canadian cases.

The book begins and ends with money laundering cases. The opening case is an exercise under the U.S. Sentencing Guidelines, the backbone of American federal criminal law, which is otherwise a messy collection of some 30,000 offenses (a very special part!) enacted unsystematically over the last 2 centuries, which is unaccompanied by any general part. The book concludes with a brief comparison of German and U.S. federal substantive money laundering offenses. Sandwiched in between, the authors dwell primarily on theory and general part issues, before focusing on homicide and rape, modern offenses like stalking, and punishing members of criminal organizations, as well German crimes such as holocaust denial and hate speech, which would likely run up against the First Amendment in the U.S.

The lead-off Blarek case (1998) tells the story of two gay interior decorators with no criminal record who are convicted of laundering money from a Colombian drug cartel, hardly a typical or aggravated case. Judge Weinstein, a renowned evidence scholar, gives a concise treatise on the principles of punishment and then decides on a “low end” punishment for the defendants, around 11 to 14 years in prison. Then the comparative sticker shock: a money launderer in Germany seldom will get more than a 2-year sentence, and over 80% of all convicted criminals are sentenced to no more than a fine. Whereas Judge Weinstein is hamstrung into imposing a seemingly disproportionate sentence, German judges have nearly unbridled discretion in tailoring the criminal sentence to fit the perpetrator, and in sentencing below the few mandatory minimum sentences permitted by the German code, or withholding punishment altogether. Dubber and Hörnle also juxtapose a 55-year sentence which Judge Paul G. Cassell reluctantly imposed on a first time marijuana seller, with a German appellate court’s finding that a jail sentence of two months imposed on a serial recidivist for theft of a pack of cigarettes was disproportionate. Up until recently, that thief, had he been caught in California, could theoretically have been sentenced to 25-years to life under the “Three Strikes” law, which was upheld by the U.S. Supreme Court.

The authors, both Germans, could have used the book to rail at the shop of horrors which is American criminal justice, but they do not. They even-handedly present the strengths and weaknesses of both U.S. and German doctrines and, in my opinion, the MPC holds its own with the much-vaunted German doctrine. For instance, long before the U.S. Supreme Court upheld preventive detention of persons who have completed their sentences in Kansas v. Hendricks (1997) as being a “civil” measure and not punishment without trial, the Nazis introduced a similar scheme called Sicherungsverwahrung, which is still on the books and allows judges to add a supplementary preventive measure on to a criminal punishment which can extend indefinitely thereafter. Hendricks is compared with M. v. Germany (2009), the European Court of Human Rights decision which found that the German law constituted criminal “punishment” and violated ex post facto prohibitions.

Dubber and Hörnle spice up their casebook with notorious cases, making for an interesting read. Besides the 19th Century English shipwreck-cannibalism case of Dudley & Stephens, and that of New York subway vigilante Bernard Goetz, staples in U.S. casebooks, they juxtapose, in discussing the principle of nulla crimen sine lege, a rather abstruse U.S. Supreme Court case dealing with the legitimacy of an old common law homicide rule, with the Border Guard Case, in which convictions of former East German guards for shooting citizens attempting to flee to the West were upheld, based on principles of international criminal law, which have a common law character to them. The German Constitutional Court’s decision upholding abortion as a crime against life, features a dissent which cites to Roe v. Wade.

In their treatment of general principles, the German focus is on the highly refined guilt principle (Schuldprinzip) and the theory of legal “goods” or interests (Rechtsgüter), whereas the common law focus is on the harm principle and MPC “element analysis.” The Germans see proof of the elements of the crime as only the first analytical step, to be followed by a finding of “wrongfulness” (lack of justification) and guilt or punishability (lack of excuse). The MPC, on the other hand, requires that each act element (act or omission, attendant circumstance or result) be accompanied, in principle, by one of four described mental states (purpose, knowledge, recklessness or negligence). The authors concede that the MPC sets a higher bar of mens rea for criminal responsibility than does German law, which does not define its guilty mental states, leaving the task to criminal law scholars, much as the common law traditionally left it to the judges. The authors also note that MPC negligence and recklessness involve more rigorous requirements than the related German mental states.

The authors’ treatment of the necessity or “choice of evils” defense kicks off with the 1884 Dudley & Stephens case, in which the House of Lords flatly reject any necessity defense, while acknowledging that the German Enlightenment scholar Pufendorf had championed it. Yet, in the end, it is the MPC, in 1962, which introduces such a defense a full 13 years before it is added to the German criminal code. The MPC distinguishes between justifications and excuses in as sophisticated manner as German law, while traditional American doctrine throws them into one bag as “defenses” to a criminal charge. Here Dubber & Hörnle point out how procedure profoundly influences the substantive criminal law. Anglo-American adversarial procedure leave it up to the defense to raise affirmative defenses, after the prosecutor has proved a prima facie case, whereas the German principle of “official investigation” requires the judge herself to sua sponte look into justifications and excuses after completing the element analysis. The MPC views necessity as a justification and duress (usually “gun-to-the-head” coercion) as an excuse, yet allows someone claiming duress to justify it as a lesser evil. The MPC deviates from both common law and German doctrine allowing for exoneration of those who kill when under duress or in a “choice of evils” situation. The authors excerpt the Aviation Security Case in this respect, in which the German Constitutional Court invalidates a law that would allow state officials, in a 9-11 type situation, to shoot down a civilian aircraft it it were threatening a catastrophic terrorist act.

Interesting comparisons are evident, as well, in the treatment of alcohol-induced intoxication. Whereas the MPC greatly liberalized the purely cognitive common law M’Naghten test for insanity by adding a volitional prong and requiring only “substantial impairment” of the ability to conform one’s acts to the law, it allowed evidence of voluntary intoxication only to negate the mental states of purpose and knowledge. German law, as illustrated by a couple of German Supreme Court cases, allows intoxication to work like insanity and possibly negate general criminal intent, thus leading to outright acquittal. But German law offers a fallback solution in the crime of “complete intoxication” (Vollrausch) which allows prison sentences of up to five years for those who due to intoxication are unable to be punished for the otherwise criminal acts they commit. There is perhaps a cultural explanation for these differences: the approach of a beer-loving culture (which also fought prohibition in the U.S. tooth and nail) compared with the English Puritan heritage to which the MPC threw a sop. Or would American jurors be too sympathetic to a drunk claiming: “I didn’t know what I was doing?”

American readers will also find it curious that German self-defense doctrine is still rooted in notions of honor and avenging ones rights and resembles the controversial “make-my-day” or no-retreat statutes currently found in the U.S. South and West, than the more life-friendly approach of the MPC, which would require retreat, if safely possible, before using deadly force in all circumstances outside of the home. Deadly force is still permitted to defend property in Germany, though the authors point out that a 1920 case absolving a gunman of killing someone stealing fruit (the Fruit Thief Case) may no longer be good law.

By focusing on the MPC and New York jurisprudence, the authors short-change a bit the continued vitality of old common law approaches which traditionally punished harm caused with little consideration of the perpetrators’ personal guilt, and which survive in doctrines such as strict liability, the proximity test for attempt liability, felony murder, and even the absolute exclusion of evidence of intoxication in some States. But they do point out, in several places, how German penal law, based in a late 19th Century code, is just as old-fashioned as common law doctrine such as that surviving in California (with a penal code from 1872) and other states. German law raises killings for “base motives” to murder, paralleling the aggravating factors which trigger felony murder or capital murder in a state like California. Killings committed “insidiously” (heimtückisch) qualify as murder, which reminds one of the common law murderous mental state of “malice aforethought” or “lying in wait.” As Dubber and Hörnle point out, this approach is based on old-fashioned, male assumptions about “fair fights” between two “male” persons of roughly equal strength and fighting capacity and thus a fair chance for the victim of effective self-defense.

Dubber and Hörnle do include a discussion of the strict-liability American felony-murder doctrine, which, in its most radical form, would permit finding someone guilty of first degree murder, if, during the course of a robbery, a victim or bystander died of a heart attack due to the excitement, without even having to prove negligence. The MPC and Canada, as exemplified by the case of R. v. Martineau (1990), have abolished strict liability felony murder, with Canada requiring at least that the culprit have “foreseen the possibility of death” for homicide culpability to ensue. Although felony murder would flout the “guilt principle,” the German code gets around this by recognizing an aggravated form of robbery or rape triggered by the death of the victim. The authors illustrate the problem using a Supreme Court case involving the Red Army Fraction (Baader-Meinhof Group), the German terrorist gang who accidentally killed an innocent bystander during a shootout following a robbery. German law requires the equivalent of gross negligence on the part of the robber in causing the death, less than the Canadian approach, and the aggravated robbery provision can lead to a sentence to life imprisonment (in reality no more than 25 years) which is higher than a manslaughter sentence.

Finally, the authors underline a crucial difference between common law and German approaches to mistake of fact. The prevailing view in the U.S. is that a mistake of fact in assault cases—sexual and other—must be “reasonable.” A reasonable apprehension of deadly force will justify a killing in self-defense, whereas an unreasonable one will not, or will only mitigate the offense to manslaughter. Similarly, a reasonable belief that a woman is consenting to a sex act is in most states a defense to forcible rape, while a minority of States and Canada, as exemplified by the Evanchuk case (1999), will find guilt merely upon a finding of actual lack of consent. In German law, even an unreasonable belief of consent, “however dumb,” is a defense to forcible rape. German law still requires force or threat of force for unwanted sex to be criminal, like the majority of U.S. states, and still requires resistance, unless “the victim surrenders without resistance because she was in a powerless position, and resistance was pointless due to the superiority of the offender.” The authors note that German law, with its clear male-focused mistake doctrine in rape cases, has not been significantly influenced by the feminist movement as has U.S. law. They excerpt State v. Kelly, a well-known 1984 New Jersey case which recognized the importance of the “battered woman syndrome” in evaluating female on male domestic assault cases and compare it with the German Family Tyrant Case, where an acquittal of a battered woman for murder of her spouse is reversed without any mention of the syndrome’s relevance. One can attribute the candid recognition of German law’s backwardness in this area to the fact that Tatjana Hörnle, one of the few women to break into the male-dominated German criminal law faculties, and a Professor at the Humboldt University in Berlin, is one of the authors of this book.


Markus D. Dubber & Tatjana Hörnle, eds, The Oxford Handbook of Criminal Law (Oxford University Press, 2014)

George Fletcher, Rethinking the Criminal Law (Little, Brown, 1978)

Kevin Jon Heller & Markus D. Dubber, eds, The Handbook of Comparative Criminal Law (Stanford University Press, 2011)

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