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NCJRS Abstract

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NCJ Number: 78863 Find in a Library
Title: Positivist Roots of Criminal Law and the West German Criminal Law Reform
Journal: Rutgers Camden Law Journal  Volume:10  Dated:(1979)  Pages:613-641
Author(s): V Shteir
Date Published: 1979
Page Count: 29
Type: Historical Overview
Format: Article
Language: English
Country: United States of America
Annotation: This paper examines the positivist and classical schools of criminal law and then analyzes criminal law reform in West Germany from the Code of 1871 through the 1975 penal code.
Abstract: The positivist approach was partly a reaction to the classical theories that had dominated criminology throughout the 18th and into the 19th century. Since the classicists presumed that all individuals acted with free will and were therefore morally accountable for their actions, these theories focused on certainty and clarity in laws, proportionality in punishment, and prevention as the chief objectives of criminal law. The positivists rejected the premise of free will, giving primacy to social accountability, and felt that the law's main concern should be the protection of society from dangerous offenders. Positivist criminology adopted a scientific approach which examined the offender's individual qualities as well as environmental circumstances. These concepts are explained through a review of doctrines expounded by Cesare Lombroso, Enrico Ferri, Raffaele Garofalo, and Franz von Liszt. A history of German penal codes reveals continuing conflicts between the classicist and positivist schools. The 1871 code adopted by the new German federation was typical of its time and embodied classical criminal theories that provided only a single response to crime -- punishment. In response to social changes, the 1871 code was amended several times, including a Juvenile Court Act in 1923 and provisions passed in 1933 regarding sentences for dangerous, habitual criminals. Probation, judicial pardon, increased use of fines, and parole were added in 1953. An analysis of the 1962 Government Draft concludes that it remained classical because of highly punitive provisions and limited measures concerning rehabilitation and safety. The Alternative Draft which contained more positivist elements is also examined. The German Penal Code enacted in 1975 blended both schools of criminal law by retaining the guilt premise and principle of retribution while recognizing that the determination of punishment should be governed by considerations of rehabilitation and protection. Provisions of the 1975 code are analyzed and compared with previous laws. Approximately 250 footnotes are included.
Index Term(s): Criminal codes; Germany; Law reform; Legal doctrines
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