Home > Journals > Michigan Law Review > MLR > Volume 42 > Issue 6 (1944)
Criminal law and procedure, perhaps even more than civil, reflect the underlying conceptions of the political system with which they are connected. The ideological structure of criminal procedure in Germany, as well as in other continental European states, rests on the historical development through which constitutional institutions in those countries have passed since the French Revolution. It mirrors the transformation of the all-powerful state of the period of absolutism into the liberal state with its guaranteed freedoms and rights of the individual and strict legal limits to the power of the authorities (Rechtsstaat); and in recent years it has adapted itself to an increasing, and in Hitler's Germany completely victorious, tendency toward a reassertion of governmental power at the expense of the individual. This historical background has to be borne in mind by anyone who wishes to understand certain characteristic differences between European and American systems. It is true that most of the institutions and principles characterizing criminal justice in Europe's liberal period did not differ greatly from the Anglo-American. But the fact remains that in Europe the idea of a strong state was never completely suppressed. State power was only hemmed in by liberal institutions and released again when those institutions were swept away. The constitutional evolution of England never allowed absolutism to reach such heights as it did in pre-revolutionary France or eighteenth century Prussia; and in the United States, where political and legal life started out from loosely organized small communities and democracy did not have to replace an earlier established order, state authority has ever been forced to fight its way against the resistance of a traditional individualism.
Hans J. Wolff,
CRIMINAL JUSTICE IN GERMANY,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol42/iss6/7
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