Due to its pervasive affinity for conceptual abstractions, German criminal law has been said to
suffer from a rationalist hubris that leads to the formulation of artificial rules and lacks respect
for the realities of life.
The following study will examine this hypothesis with respect to one area of German criminal
law that is particularly characterized by an abstract, conceptual way of thinking: the area of
what in Germany is called "offences against personal freedom".
A case where a store detective suggested to a 16 year old female shoplifter that he would
abstain from making a larceny report to the police if she engaged in sexual intercourse with him
has caused a lot of debate in German criminal law as to the question of whether the detective
infringed the shoplifter's "personal freedom" in a way prohibited by criminal law. This debate
will be presented and contrasted with the approach Canadian criminal law would be likely to
adopt had the case occurred in Canada.
The thesis adopts a comparative, analytical approach that focuses on law reform:
• comparative, because the question of whether German criminal law does lack respect
for the realities of life will be examined by comparing German legal reasoning with
Anglo-Canadian legal reasoning.
• analytical, because when exploring what German and Canadian law regarding "offences
against personal freedom" is, the focus will be on familiar, formal techniques of legal
reasoning, such as those which draw on legislative texts, legislative history, underlying
principles, academic commentary, fundamental values in the constitution, and
theoretical concerns.
• law reform, because the question is explored of whether German criminal law can learn
from Canadian criminal law how to be more open to taking varying social locations of
people affected by criminal law into account. In particular it is asked whether one can
reconcile the traditional German conceptual approach that promises certainty of the law
and the Canadian contextual approach that is better able to be attentive to equality as a
fundamental right.
It will be argued that such a reconciliation of approaches is possible and consists in a method
that might be called egalitarian conceptualism. This approach unites the advantages of
conceptual, abstract legal reasoning with the advantages of contextual thinking by merging
equality as a fundamental concept with the existing conceptual framework of criminal liability.
The principle "in dubio pro aequalitate" will be added to the principle "in dubio pro libertate".
| Identifer | oai:union.ndltd.org:LACETR/oai:collectionscanada.gc.ca:BVAU.2429/11747 |
| Date | 11 1900 |
| Creators | Heidt, Anne-Katrin |
| Source Sets | Library and Archives Canada ETDs Repository / Centre d'archives des thèses électroniques de Bibliothèque et Archives Canada |
| Language | English |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Relation | UBC Retrospective Theses Digitization Project [http://www.library.ubc.ca/archives/retro_theses/] |
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