CHAPTER I Introduction

Author:K. Neumann

1. The earliest known German law made no provision for the State administration of criminal justice. That remained the domain of tribal law, the injured party's family being empowered to deal with the wrongdoer. The Public administration of criminal justice did not become the rule till the 13th century, though in the Frankist kingdom there were some earlier rudimentary attempts at its introduction. The first authoritative code of criminal law was the Peinliche Gerichtsordnung Karl's V or Constitutio Criminalis Carolina, of 1532, drafted under the influence of the Italian glossators which became celebrated as one of the principal legislative enactments of German legal history, under the name Carolina.

The Carolina lays down that ' acting with intent ' is alone to be punished.

This includes attempts, and an attempt is defined. Complicity in an offence is also made punishable. The main strength however of the Carolina lies in its article 1 which binds the judge to adhere in principle to the written law, thus creating a better guarantee for legal security. For three centuries the Carolina was the basis of German criminal law.

In the 19th century, legal science played a great part in the development of criminal law. In his Bavarian Code, 1813, Anselm von Feuerbach set up a clear system and so sharply distinguished between different offences that his work became the model for German legislation. In 1851, the Bavarian Penal Code was followed by the Prussian Penal Code, which was greatly influenced by Napoleon's Code Penal. This was the basis of the German Criminal Code (Reichsstrafgesetzbuch) of 16 April, 1871.

A revision of the latter was undertaken in 1902, and in the course of subseque-t years six German drafts and one Austrian draft were drawn up, but the work of reform had not been concluded when the National Socialist German State arose in 1933.

2. The National Socialists seized on German law, and in particular on German criminal law, as the best vehicle for conveying and putting into practice their political ideology. So many new concepts and basic alterations were introduced into the Criminal Code that German criminal law became in their hands a veritable charter of cruelty. The principle of analogy, and the penalties of castration and sterilization were thus introduced, while the death penalty and sentences of penal servitude were extended to what normally have been minor misdeeds or even innocent...

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