This book compares the civil and common law approach to analyze the question - 'What sorts of conduct may the state legitimately make criminal?'. Through a comparative focus on an Australian and German context, this book utilizes interviews with Australian criminal law experts and contrasts them with the German model based on 'Rechtsgutstheorie'. By comparing the largely descriptive, criminology-based Australian approach with the more sophisticated German legal theory model the author finds the Australian approach to be suffering from a 'normative flaw', illustrated by the distinction of different approaches to the offences of incest, bestiality and possession of illicit drugs. Carl Constantin Lauterwein discovers that while there is strength in the common law approach of describing the possible reasons for criminalizing certain conduct, the approach could be significantly improved by scrutinizing the legitimacy of those reasons.
Table of Contents
Contents: Foreword, Mark Findlay; Preface; Law, limits and legitimacy - Germany and Australia; The German Rechtsgutstheorie; The approach to the problem - a problem itself; The discussion in Australia; Incest, bestiality and drugs - legitimately criminalised?; Conclusions; Bibliography; Appendices; Index.
'This highly interesting volume addresses the limits of criminal law in a precise and understandable manner. In view of the serious changes in today's criminal law, its comparative analysis is of particular importance. This clearly structured and well-written work is a substantial contribution to the most topical issues in criminal law today.' Ulrich Sieber, Max Planck Institute for Foreign and International Criminal Law, Germany 'This is an amazing book. It encompasses the criminal law in Germany and Australia in impressive theoretical depth and with lively practicality, and yet never loses sight of the overarching critical question: what is the function of criminal law?' Klaus A. Ziegert, University of Sydney, Australia ’Of particular interest in comparative criminal law theory today are comparisons between the Anglo-American sphere and the German or continental tradition. Coming from Sweden, I have had the opportunity to approach both of these spheres from the outside, to some extent, and in my opinion, Lauterwein’s book functions as an excellent introduction to various interesting differences between them, regarding not only criminalization theory but also law and legal theory more generally.’ New Criminal Law Review