Who Writes Criminal Laws? Actors, Values, and Institutions in Criminal Law-Making / Wer schreibt das Strafrecht? Akteure, Werte und Institutionen der Strafrechts-gesetzbegung

Andrew Hammel

Abstract

The responses of the U.S. and Europe to increased crime from the 1960s to the 1990s differed starkly: the U.S. enacted a punitive agenda, while penal polity and incarceration rates in Western (and Eastern) Europe remained gener­ally stable. To explain this divergence, many commentators invoke cultural or historical factors such as America’s ‘frontier mentality” or Calvinist religious heritage. This article proposes another focus: differing cultures of criminal law-making. During the Enlightenment, a pattern of expert control over penal law emerged in most European nation-states. The pattern still holds - even today, major changes to penal polity are still entrusted to groups of elite professors, jurists and senior civil servants, who create coherent codes covering the entire national territory. In the United States, no tradition of expert control took hold. Criminal law is made at the state level, there is little emphasis on logical code-drafting and shifting local majorities can pass new criminal laws almost at will This structural difference in who writes criminal laws has far-reaching effects not only on the how crime is defined, but on other factors such as public expectations of the criminal justice system and the values penal legislation is thought to express.

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Established in 1980, the Zeitschrift für RechtssoziologieThe German Journal of Law and Society offers a forum for the academic analysis of law in its societal context and on the relationship between law and society. The Journal publishes contributions from all disciplines as long as the relationship between law and society can be identified as a core theme.

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