Law & Society Blog

Markus Dirk Dubber of the University at Buffalo Law School has published yet another excellent discussion of modern German criminal law. In Theories of Crime and Punishment in German Criminal Law, he discusses the critical doctrinal importance of “legal goods” (Rechtsg??ter) and the ascend of positive general prevention (positive Generalpr?ßvention),

… which today is the dominant theory of punishment in German criminal law. There are many varieties of positive general prevention, so many in fact that discussions of the theory as a matter of course caution that it may well be misleading to speak of the theory, rather than theories, of positive general prevention. Still, the basic features of positive general prevention can be discerned easily enough. It’s “generalǃ? to distinguish itself from special prevention, which uses punishment to prevent crime by the particular offender subject to punishment, rather than by others. It’s also “positiveǃ? because it seeks to prevent crime not by scaring potential lawbreakers into compliance, but by bolstering the lawabidingness of the rest of the population. Finally, and relatedly, it’s about “preventionǃ? generally speaking, rather than “deterrenceǃ? as a particular means of prevention. There could be no such thing as positive deterrence, after all.

Those familiar with the German legal academic scene will notice that Dubber’s account is somewhat Munich and Frankfurt-centric. G??nther Jakobs (University of Bonn), probably the central figure in the development of the modern variant of positive general prevention, is mentioned only in passing. Similarly, one of the most exciting young punishment theorists, Michael Pawlik (University of Regensburg), a disciple of Jakobs, is missing from Dubbers account entirely. None of this should detract from the merits of Dubber’s article; for those interested in the latest attempts to go beyond positive general prevention, I suggest my review article of Michael Pawlik’s latest book.

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