»Nothwendige Gleichheit der Strafen bey aller Verschiedenheit der Stände im Staat«?

Abstract

Abstract: (In)equality played a major role in judicial discussions about criminal law as well as in legislation between the late 18th and the middle of the 19th century. Particularly disputed was whether the same penalties should be applied to all, regardless of their social status. Opponents of this view argued that equal punishment could have dissimilar effects on the convicts depending on their individual circumstances. Between 1780 and 1820 criminal law in Germany was dictated by estate lines and therefore clashed with middle class claims for equal rights. Since equality before the law in the early 1800s was established as a basic principle e. g. in constitutions, different penalties for the same offence could not be justified with the inequality of estates anymore. Although this was generally accepted by jurists, they dismissed demands for a so-called formal equality and favoured substantial equality instead. As a consequence, German penal codes implemented a privileged penalty which could only be imposed on educated and respectable citizens. Provided that education and respectability were to be found in members of the middle classes only, a new kind of inequality was thereby established.