The Influence of the Napoleonic Penal Code on the Development of Criminal Law in Germany: Juridical Discourses, Legal Transfer and Codification

Abstract

The chapter analyzes the transfer and the influences of the Napoleonic penal code (1810) on the development of criminal law in Central Europe and the German States in the first half of the nineteenth century. After the dissolution of the Holy Roman Empire of the German Nation in 1806, the Code penal influenced the German juridical discourse on criminal law as well as the development of criminal codes and respective reform projects in many German states of the Confederation of the Rhine (1806–1813) and the German Confederation (1815–1866). A systematic survey of these influences shows general aspects of the perception, the transfer and the implementation of the Code penal in exemplary German states under the conditions of cultural and political diversity, legal pluralism and the need to reform and codify criminal law. The chapter outlines the discussion of the Code penal in the contemporary German juridical discourse, depicts various modes of its implementation and adoption in some German territories/states (notably Bavaria and Prussia), and analyzes exemplary problems of the legal transfer: the trinity of punishable offences and the integration of police-contraventions, the penalty system and the purposes of punishment, as well as the infeasibility of a strictly codified conformity of offences, penal system, and judiciary. Although many jurists as well as most governments regarded the modernisation of criminal law through the Code penal as exemplary and helpful to advance reforms of criminal law and justice, an adoption of the French criminal law also created collisions and frictions. The chapter discusses these issues and the principal question of the transfer and adoption of criminal law in nineteenth century Central Europe.