Von Liszt Research Articles

Criminal Law and Human Rights - Some Examples from the Emergence of European Criminal Law

Criminal law is often described as the field of law that expresses the strongest national characteristics of a given jurisdiction and is the least amenable to change. Naturally, social rules providing some kind of penalty when violated have existed throughout the history of mankind. In Europe, the current understanding of criminal law has been shaped by Enlightenment thought, the ideas of human rights, liberalism and finally the national movements which led, inter alia, to the famous codifications of criminal law of the 19th century. In Russia, criminal law has certainly (not been isolated from the developments that took place in 19th century Europe. For example, the abolition of corporal punishment is but one good marker of humanisation. But compared to Europe, codified criminal law in Russia has been much less understood as the magna charta of the offender (Franz von Liszt), eventually leading to the study of human rights in criminal law. Rather, it has been viewed as the expression of the Tsars unfettered power to mete out punishment, - a line of thinking which indicates the continuing difficulty in Russian criminal law doctrine to accept limitations on the power of the legislator to criminalize. This paper will not deal with Russian doctrinal approaches to criminal law in a direct way. Instead, its purpose is to demonstrate the European Unions (EUs) current thinking on the effects that human rights have on the development of criminal law. As of today, criminal law is under a variety of influences among which the changing understanding of human rights is a very important one. In the Western world, there is a large amount of literature dealing with human rights and criminal law in general1 [1; 2], and it is hardly possible to come to an overall systematization. To be sure, there are parts of criminal law which have experienced very little change in light of human rights. One central tenet of human rights, for example, is the equality of men2 (in a pre-modern reading to include also women) which leads to the criminalization of slavery, slave trade, forced labor and trafficking in human beings. The smuggling of humans, on the other hand, is a much more controversial topic due to the fact that states show a strong desire to criminalize irregular migration. Another pillar of human rights is the human right to property3 which informs a whole range of criminal law provisions for violations of the right to property on land (theft, robbery, etc.) and on water (piracy). By comparison, the right to life is a more difficult concept. Human rights are behind the global drive for abolishing the death penalty4, but a number of other life-related issues are determined less by human rights than by religious and ethical views, such as the criminalization of abortion, aiding and abetting suicide, and euthanasia. Finally, a number of human rights are experiencing a very lively debate, e.g. freedom of speech5 [3] and freedom of religion, consequently there is also a high impact on the development of criminal law. European criminal law, understood as the total of the harmonized national criminal law systems of the EU Member states, offers a good example to study the effects of human rights. In the literature, there is the argument that changes in the understanding of human rights can lead both to criminalization and to de-criminalization. This has also been described as the «sword» function of human rights (using human rights to call for criminalization) and the «shield» function (using human rights law to call for limits to the use of criminal law and even de-criminalization) [1]. Both functions can be observed in a nutshell when analyzing the European criminal law that has emerged in the course of the last decade. For Russia, this article represents a (hopefully timely) contribution to the still nascent discussion on the effects of human rights on criminal law. Despite the Preamble to the newly adopted Constitution of the Russian Federation (RF) which affirms the role of human rights, Article 15 (4) Constitution RF limits the direct impact of human rights law to the universally accepted norms and principles of international law as well as to treaties concluded by the RF. The Constitution therefore appears to be closing the door to cutting-edge developments in international human rights law which are still not universally accepted.

W kręgu problematyki polityki kryminalnej w dwudziestoleciu międzywojennym w Polsce

<p>One of the debates carried out in interwar Poland among legal professionals, including on the pages of legal journals, regarded the issue of how to define and delimit the scope of criminal policy. It was contributed to by many prominent jurists of that era, such as J. Makarewicz, B. Wróblewski or E.S. Rappaport. The aim of this article is to present J. Reinhold’s and A. Moginicki’s views on criminal policy. However, these two authors perceived the combat against crime differently as to the use of various means by the state or both the state and society (penalties and/or preventive/protective measures). Although they were influenced by the sociological school of criminal law, mainly F. von Liszt’s position, an analysis of their views points to a number of differences in their positions.</p>

The Brazilian Translation of Franz von Liszt’s Lehrbuch des deutschen Strafrechts (1899): A History of Cultural Translation between Brazil and Germany

The Brazilian Portuguese version of Franz von Liszt’s Lehrbuch des deutschen Strafrechts published in 1899 was the first translation of this book (the French and the Spanish ones were made only more than a decade later). Nevertheless, it was not analysed yet by the legal historiography. The aim of this article is to comprehend this book as a cultural good within a process of cultural translation that deals with the legalistic and codified legal context of the nineteenth century. In order to understand the operation of the Brazilian translator (Jose Hygino), the article proposes an adjustment of the intellectual mediator concept as a historiographical tool. The mediation is analysed mostly through the translator’s preface and notes i) by mapping Hygino’s comparisons between Brazilian and German criminal legislation; and ii) by analysing Hygino’s dialogues with foreign scholars. Considering the relevance of cultural differences within a discursive action as the main feature of an intellectual mediator, it is possible to distinguish: i) Hygino’s book as a cultural mediation (in a general level); ii) part of Hygino’s notes and preface as cultural mediation; iii) and part of them as simply participation within a common (or entangled) intellectual space. As a cultural translation process, Hygino’s translation is an important piece of relevant transformations of Brazilian criminal literature of the late nineteenth century not only in the obvious level of the technical dialogues, namely: as an expansion of the literary genres of Brazilian criminal literature and as a shift of its international dialogues.

Double-Track System in Polish Criminal Law. Political and Criminal Assumptions, History, Contemporary References

The authors of the penal code of 1932 modelled their reaction measures on the best contemporary standards. The system of criminal response was based on a double-track model, in German called zwei Spuren , in Italian – doppio binario , in which, along with penalties, there were also preventive measures. This system grew out of certain political and criminal assumptions of the sociological school, expressed most fully in the works of Franz von Liszt. Return in contemporary law, to the wide use of preventive measures, post and pre-penal, forces us to return to the sources and to critically examine the assumptions of the indicated approach, including the idea of an incorrigible criminal who should be isolated, not in relation to what he did, but because of who he is. Tracing the history of regulations, in particular their practical application should be a lesson for modern lawmakers.

Towards a biography of Toma Zivanovic

Toma Živanović (Thomas Givanovitch, 1884-1971) taught criminal law at Belgrade University (1909-1945). He obtained his LL.D. from the Sorbonne (1908) and did postdoctoral work in the Berlin Criminalistics Institute under Franz von Liszt (1908/9). In 1916-1918 he taught two courses at the Sorbonne, in which he developed two theoretical insights which were well received in the academia of the time. The first concerned a tripartite division of the fundamental notions in criminal law and the second a 'synthetic' philosophy of law. The paper contributes new data on Živanović's personality, life and work. Although recognized in Serbia as a leading international scholar and a victim of Communism, Živanović is also the subject of an oral tradition, initially developed by his colleagues and students, which remembers him as a selfish, stingy and rancorous individual, willing to do for money things that people with a more developed moral sense would not, and unwilling to help his students. The paper critically assesses this tradition and finds it to be true in some, but invented in other parts. Born to a family of an uneducated provincial artisan and burdened by a speech impediment, Živanović suffered from an inferiority complex, which thwarted his social integration. Eventually he entered the high society of the then Yugoslavia, partly because his marriage to an influential socialite. He was a noted member of the leading international associations in criminal law and philosophy and, together with Vespasiano Pella, Raphael Lemkin and several others, belonged to a 'select group' of European lawyers who dealt with issues of international criminal law and terrorism. After the Communist takeover in 1945, much of Živanović's family property was nationalized and he was forced to retire from the University. He did remain a member of the Serbian Academy of Sciences, through which he continued his research and writing, often travelling abroad to work in libraries and participate in international congresses. He published his three-volume Synthetic Philosophy of Law in Yugoslavia, but foreign publishers had lost interest in his work. In the last two decades of his life, Živanović became obsessed by what he perceived as the seminal importance of his earlier contributions. He regarded tripartition as a universally applicable 'discovery' (rather than an insight or a theoretical construct), to be used in all legal and many 'extra-legal' sciences (such as zoology and pedagogy). He believed that nearly all modern criminal codes were based on his tripartite theory and suspected a conspiracy of legal scholars to minimize or deny his authorship. Živanović's obsession gradually made him lose contact with reality. Twice, in 1960 and 1961, he nominated himself for the Nobel Prize in literature (it not being awarded for legal scholarship). Although Živanović was indeed an internationally recognized and prominent legal scholar before the Second World War, assessment of his significance prevailing in the Serbian literature is overstated, closer to his own delusional self-image than to reality.

UIDP/AIDP: 125 ans au service de la Justice Criminelle, de l’Humanité et des Droit de l’Homme

It is common knowledge that he AIDP, established in 1924, was a reactivation and renewal of the UIDP, founded in 1889 by von Liszt from Germany, Prins from Belgium, and van Hamel from the Netherlands.36 For that reason, the AIDP is, without any doubt, the oldest international association of criminal science. As correctly stated by H.-H. Jescheck (see Document 15), who studies the history of the association, the AIDP cannot deny the establishment, mission and work of the UIDP before the Great War of 1914-1918. The UIDP was created in an era in which the Nation States in Europe had to address serious social problems and increased criminality. It was also an era of political turmoil resulting in the creation of the first liberal and socialist parties and the labor unions. The classic model of laissez faire and laissez passer based on economic liberalism had created too much inequality in society. In his famous 1891 “Rerum Novarum” Encyclical on the Rights and Duties of Capital and Labor, Pope Leo XIII made a strong plea in favor of states that promote social justice through the protection of rights. He described the prevailing atmosphere:37 That the spirit of revolutionary change, which has long been disturbing the nations of the world, should have passed beyond the sphere of politics and made its influence felt in the cognate sphere of practical economics is not surprising. The

Beyond the Prison Gates: Punishment and Welfare in Germany, 1850-1933

At the end of the nineteenth century, the jurist, legal reformer and founder of the innovative ‘Marburg School’ of criminal law, Franz von Liszt, declared that the ‘best criminal policy is social policy’. According to Warren Rosenblum, Liszt's observation has continued to inform German criminological practices since. In fact, contemporary Germany offers important insights into the treatment of criminals. The 2009 statistics of the Organization for Economic Cooperation and Development, for example, indicate that 9 out of every 10,000 Germans was imprisoned, in contrast to 76 Americans drawn from an identical sample. Moreover, in a twelve-month period over 2004/05, 13.1% of the German population reported experiencing a crime, as a victim or as a potential victim, while 21% of the UK population reported the same. It is against this backdrop that Rosenblum's masterful monograph stands. In Beyond the Prison Gates, Rosenblum argues that a ‘distinctively German’ approach to welfare policy, based on cooperation and competition ‘between private, mostly Christian charities and public welfare offices’, along with the claim of Weimar-era reformers that ‘true punishment is welfare work‘, has shaped that country's penal system, endowing it with an especially ‘mild’ and ‘social’ approach to the treatment of offenders which continues to the present (pp. 3, 4, 232).

Introductory note: the association internationale de droit pénal and the establishment of the international criminal court

The Association Internationale de Droit Penal (AIDP-IAPL) finds its immediate precedent in the Internationale Kriminalistische Vereinigung, established in 1889 by Franz von Liszt, Gerard van Hamel and Adolphe Prins. At a time where criminality was rising and the most usual proposed answers were the approval of legal reforms in order to multiply and expand the incriminations and to increase and intensify the punishments, the establishment of the Internationale Kriminalistische Vereinigung pursued a double aim:

Zweispurige Verbrechensbekämpfung

This contribution examines Franz von Liszt’s involvement in the Swiss penal reform movement. It points out the transnational character of a reform movement which called for a criminal law based on individual prevention in many European countries. Being the author of the widely acknowledged »Marburger Programm«, Liszt exerted much influence on penal reforms in Switzerland, though this was directed more towards programmatic and organizational matters than legislation. In turn, he repeatedly introduced elements in his own argumentation that had previously been put forward in Switzerland. Thus, he finally adopted a dual system of sanctions, which differentiated between punishments and security measures. For Liszt, as for his Swiss colleagues, this system allowed the introduction of indeterminate sentences, though restricted to a minority of offenders, and of sanctions specifically adapted to different classes of offenders. At the same time he welcomed the dualism of punishment and security measures as a herald of »social defence«, which should definitely transgress the borders of criminal law. Actually this concept was to influence criminal policy both in Germany and Switzerland after the First World War. Thus, trends towards the establishment of differentiated regimes of sanctions and tendencies towards the gradual extension of the state’s prophylactic possibilities alike reflect a shared but highly problematic feature of continental criminal policy in the early 20th century.

Gustav Radbruch and Hermann Kantorowicz: Two Friends and a Book - Reflections on Gnaeus Flavius’Der Kampf um die Rechtswissenschaft(1906)

Gustav Lambert Radbruch (1878-1949) and Hermann Kantorowicz (1877-1940) were undoubtedly two of the greatest legal scholars in Germany in the first half of the twentieth century; for some of this time arguablythegreatest. It is a happy coincidence that they both attended the seminar of the criminologist Franz von Liszt in Berlin at the same time in 1903. Although very different in temperament and not always in agreement, they were immediately drawn to each other, highly respectful of each other's undoubted intellect, never jealous of the other's achievements but always altruistically supportive. Though together for only four months initially, they maintained regular contact through letters and quickly forged a close and life long friendship.

Conference Report - International Criminal Justice and International Criminal Law

Conference Report for a Conference on Recent Developments in International Criminal Law, organised by the Academia Juris Internationalis Franz von Liszt of the Faculty of Law of Justus-Liebig-University (Giessen, Germany) and the Hesse State Ministry of Justice in the Justice Ministry Building in Wiesbaden, Germany, on 27 April 2004.

Conference Report - Legal Unity Through Specialized Courts on a European Level?

After last year's successful Academia Juris Internationalis workshop on local products, Prof. Dr. Thilo Marauhn and Dr. Sebastian Heselhaus (Academia Juris Internationalis Franz von Liszt, Faculty of Law, Justus-Liebig-University, Giessen) organized the second Jean Monnet – Workshop in the Senate Hall of the Main Building of Justus-Liebig-University in Giessen, Germany, on 2 July 2004.

LISZT AND ITALIAN FOLKLORE

When I proposed to the organizers of this conference that I present a paper about Liszt and Italian folklore, I planned to make only a small contribution to the literature about Liszt's musical internationalism. The situation in this field of Liszt research (i.e., Liszt and elements of Italian folklore) can be described today in the same words which Zolt?n G?rdonyi used in 1963: ?Der Ursprung der von Liszt verwendeten italienischen Nationalthemen ist ?brigens bisher noch nicht gen?gend erforscht worden.?11 thought, therefore, that it would be intersesting to devote my paper to this subject, even if I had uncovered only enough material for a short presentation. In pursuing research, however, I uncovered a large number of unfamiliar documents, and I am convinced that more remain to be found. Thus my paper is actually a report on work-in-progress. Another preliminary remark: I employ words like?popular,? ?folklore,? and the like in Liszt's sense rather than in ours (i.e., I assign them a prephilological content). In other words, I consider as ?popular? every kind of music which, in Liszt's day, was familiar and beloved at whatever level of society.

Western Legal Treatises in Russian Translations

Western legal works translated in the 1920's and 1930's were either practical German handbooks dealing with the technique of criminal investigation3 or with practical issues of maritime law.4 The only international law textbook translated at this period, Franz von Liszt's Volkerrecht, was a new, revised Russian edition prepared for Russian students by V. E. Grabar. Grabar stated in the foreword that he omitted all political views of German scholars contained in the original work. Omitted also was everything which was only of interest to German readers before World War I; instead, Soviet legislation in the field of international law and relations was added. Worth mentioning are three short booklets dealing with theoretical foundations of law, translated very early in the period: Duguit, Hedemann and Karner.5 The earliest one, done before the formation of the Soviet Union, was Duguit's Les transformations generales du droit prive (1919). Duguit's theory of social functions of law presented in favorable light by Professor A. G. Goikhbarg6 was later condemned as anti-marxist.7 Hedemann's Grundziuge des Wirtschaftsrechts attracted the attention of Soviet lawyers by the mere concept of economic law. Promoters of this concept and authors of Soviet textbooks on economic law, Goikhbarg and Pashukanis, were later declared enemies of the people.8 Translation of Karner's book did not have such damaging effects. The last translation of this period, Sagnac's Legislation civile de la Revolution frangaise, 1789-1804, had more