BOOK REVIEW

The Limits of Criminal Law: A Comparative Analysisof Approaches to Legal Theorizing by Carl ConstantinLauterwein

Ashgate, Surrey, 2010, 162 pp, £60.00. HardbackISBN 978-0-7546-7946-2

Arlie Loughnan

� Springer Science+Business Media Dordrecht 2013

On one level, the focus of The Limits of Criminal Law is captured by its title—the book is

concerned with the legitimate boundaries of the criminal law. Lauterwein sets out different

approaches to this topic in the German and Australian legal contexts. The book does not

formally adopt a comparative methodology, but rather presents ‘an analysis using con-

textual and comparative elements’ (p. 45). He concentrates on analysing discussion of the

limits of the criminal law in Australia, using the German legal theoretical approach as a

counterpoint. But, on another level, the book is concerned with the features of criminal

legal scholarship in these two national contexts and the influence of this scholarship (in the

author’s words, ‘legal theorizing’) on the criminal law in their respective traditions. As a

result, The Limits of the Criminal Law addresses both the question ‘what sorts of behaviour

may the state legitimately make criminal?’ (a question that is expressly posed by the

author) and ‘what is the value of criminal legal scholarship?’ (a question that is implicit in

the discussion he offers).

This is an interesting and stimulating book. For a scholar trained in the common law

tradition, it provided an accessible and informative introduction to German criminal law

and criminal law scholarship. And, from the perspective of an Australian scholar, it

prompted serious reflection about the state of criminal law scholarship ‘down under’. Yet,

this reader was left with a troubling sense of several asymmetries running through the

analysis that potentially undercut the strength of the conclusions the author reaches in

relation to each of the two questions asked in The Limits of Criminal Law.

The first of these asymmetries relates to what exactly is being counter posed with what

in the book. This is an issue of substance although it relates closely to an asymmetry in the

author’s methodological approach. Lauterwein begins the book with a discussion of the

way German scholars answer the question ‘what sorts of behaviour may the state legiti-

mately make criminal?’. As Lauterwein outlines, the answer to this question is structured

by the general function of the criminal law, and specifically by the concept of the

Rechtsgutsschutz—the protection of legal goods/interests—that forms a guiding principle

or goal that is independent of the substance of the criminal law. Lauterwein takes up the

A. Loughnan (&)ARC Postdoctoral Research Fellow, Faculty of Law, University of Sydney, Sydney, NSW, Australiae-mail: Arlie.Loughnan@sydney.edu.au

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Crim Law and PhilosDOI 10.1007/s11572-013-9227-8

particular academic theory of this concept that has been developed by Emeritus Professor

Claus Roxin [because it is held in high regard and because it represents the ‘mainstream’ of

German scholarly opinion (p. 7)]. As Lauterwein explains, the Rechtsgut concept functions

to provide a method for interpreting the law, and also has a function relating to criminal

policy. In this latter respect, it ‘aims to establish limits on the legislature regarding criminal

policy and therefore provides a framework for critical analysis of legislative practice’

(p. 9). Following Roxin, Lauterwein outlines nine ‘consequences’ (p. 10) of the Rechtsgut(including ‘Immorality, Unethical or Other Reprehensible Conduct of Itself does not

Constitute Harm to a Rechtsgut’ and ‘Deliberate Self-harm and/or its Enabling and Support

do not Legitimate Criminalization’). Lauterwein suggests that, in Roxin’s approach, the

Rechtsgut detects the crucial minimum criterion for criminalization (p. 27), with the

Rechtsgutstheorie representing a ‘dogmatic attempt to limit the legislature’s discretion

when criminalizing conduct’ (p. 38).

Turning to the common law scholarly tradition, Lauterwein finds no equivalent guiding

principle or goal for determining the legitimate limits of the criminal law. According to

Lauterwein, German legal scholars commonly assume that Joel Feinberg’s harm principle

is the common law equivalent of the Rechtsgutstheorie in this respect (p. 2), but he

acknowledges that, at least in Australia, this principle has ‘nowhere near’ the level of

influence of the Rechtsgutstheorie in Germany (p. 42), and competes with other principles

(such as offence theory). Beyond this, normative work on the legitimate scope of the

criminal law is not as popular in the Australian literature, which does not approach the

issue of criminalization via an abstract process of deducing the limits of the law from its

purpose, and exhibits reliance on several independent principles to discuss (rather than

declare) the limits of the law. While these issues might be thought to characterise a number

of common law scholarly contexts, the author’s analysis pinpoints these issues as pecu-

liarly ‘Australian’.

The problems the author faces in finding something to counter pose with the Rechtsgutconcept lead him to alter his methodological approach (which I discuss below), but this

change of plan does not deal with the substantive disjuncture at the heart of the book.

While the question being asked in the German context is indeed ‘what sorts of behaviour

may the state legitimately make criminal?’, the question being asked in the Australian

context is ‘what do you think is or are the valid principle(s) for determining legitimate

invasions of liberty, so that no conduct that fails to satisfy its or their terms can properly be

made criminal?’ (p. 137). This latter question, which is the one the author himself asks in

his research questionnaire (Appendix A), seems to be designed to provoke abstract com-

ment along the lines of the Rechtsgut concept and the interviewees are asked about the

legitimacy of specific behaviours/offences (incest, bestiality and drug possession). But the

two questions asked are different, and it should not have surprised the author that, in the

Australian context, he received a mixed bag of responses. It seems to me that this in part

reflects the inductive style of reasoning infusing the common law system, which contrasts

with the deductive style of reasoning characteristic of the German legal system and Ger-

man legal analysis (Bohlander 2008).

The second and closely related asymmetry in the book is a methodological one of which

the author is keenly aware. Faced with the need to alter his original plan to undertake an

analysis of the relevant literature, Lauterwein substituted a review of the Australian

scholarship on the limits of the criminal law for a set of semi-structured interviews with

academics, judges and legal practitioners. But, while the author suggests that comparing

German academic discussion with discussion by Australian ‘experts’ within and beyond

the academy, may appropriately reflect different ‘‘sourcing of knowledge’ between

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Australia and Germany’ (p. 47), this approach does not seem to compare like with like, nor

to support the conclusions the author reaches. Although the experts were given the

questions in advance and were able to amend their responses after the interview, and

although space is given over to lengthy quotations taken from interview transcripts, these

attempts to ‘minimize the differences in explanatory power’ can only go so far. The author

acknowledges that the Australian material is ‘more specific’ and ‘less generalizable’

(p. 49), but it seems that this proviso on the data is lost when it comes to the analysis. For

instance, confronted with responses that went to his main interest in normative criminal-

ization, Lauterwein’s responses are rather terse [e.g. that these views not reflected in the

textbook written by the particular interviewee (p. 97)]. In general, setting up the inter-

viewees’ responses against the Rechtsgutstheorie, which is a result of ‘a long tradition

stemming from the Enlightenment’ (p. 118), seems unwarranted and inappropriate.

There is a further point to make regarding the book’s methodological approach. It

appears that the non-academic experts interviewed were selected on the basis of (national?)

profile, but this approach has not captured the mix of scholarly traditions within Australia.

Because all but one of the interviewees was willing to be identified, it is clear that the

common law jurisdictions in Australia are better represented than the Code jurisdictions.

Thus, although Lauterwein is interested in comparing the civil and common law approa-

ches to criminal law scholarship, because these approaches are referred to as ‘German’ and

‘Australian’ respectively, the author is vulnerable to the charge that he misrepresents the

latter, which comprises common law and Code jurisdictions and the scholarly traditions

associated with both (in relation to Code scholarship, see e.g. Crofts and Burton 2009;

Gans 2012).

Analysing his interview data, Lauterwein argues that, while the Rechtsgutstheorie leads

to the normative evaluation of criminal prohibitions—as ‘right’ or ‘wrong’, ‘legitimate’ or

‘illegitimate’—the consideration of several principles merely establishes (or not) good

reasons for criminalization rather than producing definitive assessments (p. 52). For La-

uterwein, partly because of the influence of criminological work on the study of criminal

law, the Australian discussion centres on descriptions of the criminal law, rather than the

normative question of what should be a crime. The author concludes that the Australian

discussion is ‘highly contextualized’ (p. 57), more criminological than jurisprudential,

more pragmatic than dogmatic, and more political than legal (p. 87). In the absence of a

‘matrix’ for the discussion of normative legitimacy (p. 90), which is provided by the

Rechtsgutstheorie, Lauterwein concludes that it is harder for scholars in Australia to

articulate a critique of the scope of criminal laws.

But this seems to miss a point about the varieties of scholarly critique to which the scope

of the criminal law may be subject. Lauterwein’s intense focus on ‘normative legitimacy’

means he has overlooked significant parts of what the interviewees were saying. Even if we

take legitimacy as a ‘purely theoretical category’ (p. 3), it is not necessarily just a question

of the substance of the law. Rather than start with an idea about criminal law as derived from

a set of abstract norms about protected interests or goods, we might start with an idea of

criminal law as a public discourse and criminal wrongs as public wrongs (Duff 2007). From

this starting point, the public-ness of criminal law implicates (democratic) principles and

processes. So, as criminal law concerns the relationship between a citizen or citizens and the

state, the processes attendant to the substantive law are crucial for its legitimacy. It seems to

this reader that a number of scholars and practitioners interviewed were driving at this idea

in their comments. But Lauterwein does not pick this up. What is missing from The Limits ofCriminal Law is a serious consideration of processes—legal and political and other—

alongside either jurisprudential or criminological debate. This generates a third asymmetry

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in the book—the primary significance of scholarship (‘theorizing’) as critique but the failure

to countenance a range of theoretical possibilities for critique. The apparent absence of

normative theoretical approaches is not the same as a ‘atheoretical’ (p. 86) or ‘anti-

normative’ approach (p. 118) and does not imply that the critical scholarly armoury is empty.

In The Limits of Criminal Law, Lauterwein rightly suggests that the approach taken by

Australian legal scholars influences the way in which law students are educated, and thus

practising lawyers’ understanding of their profession. Yet, curiously, the sociological

features of legal scholarship in the two contexts, and of legal cultures more generally, are

missing from the analysis. In relation to Australia, salient features would include, for

instance, the academic tradition of standing ‘outside’ the legal system (Webber 2004) and

the widely-accepted distinction between textbooks and academic scholarship. By contrast,

viewed from the outside at least, the salient features of the German system would include

the legacy of legal science (Merryman 1969), the enhanced role of legal scholars and

academic work or ‘doctrine’ as a source of law in the continental tradition (Stone Sweet

2000), an appreciation of the distinctive role of textbooks as treatises (Merryman 1969),

and, in relation to legal culture, the historically contingent relationship between law and

politics (Schlink 1992-93). As Alec Stone Sweet has written in the context of a discussion

of constitutional scholarship, ‘continental legal scholarship is highly formalist, relatively

immune to critical perspectives on the law, largely disinterested in questions of legal

interpretation, but nonetheless committed to enhancing the prestige and legitimacy of

doctrinal and judicial power’ (2000: 147). A closer assessment of the different features of

legal scholarship would have assisted Lauterwein in advancing a more nuanced analysis of

this point.

As it is, Lauterwein provides quite a narrow assessment of the value of criminal legal

scholarship in Australia—as ‘descriptive’ (p. 118). While he suggests that there are

opportunities for Australian criminal legal scholars in the current era, he concludes that we

have a long way to go. For Lauterwein, a ‘mature’ legal culture (p. 80) would be one in

which academics articulate normative arguments in textbooks-cum-treatises, which are

read by the students who will later become practitioners of the law, and where those

normative arguments exert measurable influence on the scope of the criminal law. Thus, in

relation to the question only ever implicitly posed in the book, ‘what is the value of

criminal legal scholarship?’, in the Australian context, the answer seems to be a depressing

or pessimistic ‘not much’. But, even allowing for the dimension of criminal law schol-

arship in Australia that is declaratory, there is more to it than that: Australian scholars,

including those interviewed, have had a deep engagement with issues of criminalization

over time. Situating the ‘Australian’ scholarship in the broader common law tradition, and

a greater willingness to embrace varieties of scholarly critique, would have sensitised the

author to this and deepened the analysis offered in this book.

References

Bohlander, M. (2008), The German Criminal Code: A Modern English Translation. Oxford; Hart.Crofts, T. and K. Burton (2009). The Criminal Codes: Commentary and Materials (6th edition). Sydney;

Lawbook Co.Duff, R. A. (2007). Answering for Crime. Oxford; Hart.Gans, J. (2012). Modern Criminal Law of Australia. Melbourne: Cambridge University Press.Merryman, J. (1969). The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and

Latin America. Stanford: Stanford University Press.

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Schlink, B. (1992-93), ‘German Constitutional Culture in Transition’ 14 Cardozo Law Review 711.Stone Sweet, A. (2000). Governing with Judges: Constitutional Politics in Europe. Oxford: Oxford Uni-

versity Press.Webber, J. (2004) ‘Legal Research, the Law Schools and the Profession’ 26 Sydney Law Review 565.

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