Review: WHY COMPARE?

COMMENTS ON KEVIN JON HELLER AND MARKUS D DUBBER'S

THE HANDBOOK OF COMPARATIVE CRIMINAL LAW
Reviewed Work(s): The Handbook of Comparative Criminal Law by Kevin Jon Heller and
Markus D Dubber
Review by: Leo Zaibert
Source: The University of Toronto Law Journal, Vol. 62, No. 2 (Spring 2012), pp. 277-291
Published by: University of Toronto Press
Stable URL: https://www.jstor.org/stable/23263792
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Leo Zaibert* WHY COMPARE? COMMENTS ON KEVIN JON
HELLER AND MARKUS D DUBBER'S THE

HANDBOOK OF COMPARATIVE CRIMINAL LAWt

In this review essay, I welcome the publication of this much-needed Handbook.

Comparative criminal law has not received, in the anglophone traditions, the atten
tion that it deserves, and this Handbook is an important corrective. But I also take
the opportunity to discuss some dangers inherent in any comparativist enterprise,
and suggest that some of these dangers are present in the editor approach to compar
ative criminal law.

Keywords: criminal law, comparativism, parochialism, German criminal law

I (Criminal) law and parochialism

Law, by its very nature, is a parochial activity. A Nigerian lawyer would be

much more useless in, say, Japan, than a Nigerian physician would be, or
a Nigerian mathematician. Neophytes may imagine that the scholarly
study of law is significantly less parochial than the actual practice of law -
but this is not the case. While perhaps some difference in terms of paro
chialism between the legal professoriate and most practising lawyers
ought to be granted, that difference is rather negligible. Even a superfi
cial glance at legal curricula around the world reveals that, notwithstand
ing token 'international' or 'comparative' law courses, law school
curricula are markedly local. Courts and legislative bodies around the
world, too, are overwhelmingly interested in precedents, case law, and
doctrinal positions belonging to their own jurisdictions and traditions.
One of the most parochial of all the subfields within the law is the
criminal law. Consider but one example: the central concepts of the
theories of culpability - that is, of mens rea - in the 'civil law'1 tradition

* Professor of Philosophy, Union College, Schenectady, NY. With thanks to Harry Mar
ten, Anna Schur, and Barry Smith.
t A review of Kevin Jon Heller & Markus D Dubber, eds, The Handbook of Comparative
Criminal Law (Stanford, CA: Stanford University Press, 2011). Subsequent references
appear parenthetically in the text.
1 It is difficult to give a name to this tradition. Labels such as 'civil law,' 'continental
law,' 'Napoleonic law,' 'Roman law-based,' or in the particular case of the criminal
law, 'German law,' are inadequate; see Leo Zaibert, 'On Deference and the Spirit of
the Laws' (1996) 82 Archiv fur Rechts- und Sozialphilosophie 460.

(2012), 62 UNIVERSITY OF TORONTO LAW JOURNAL DOI: 10.3138/utlj.62.2.277

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278 UNIVERSITY OF TORONTO LAW JOURNAL

are dolus and culpa (often, of course, expressed in the vernacular). Yet,
central as these notions are to the criminal law of many countries and
venerable as their lineage is (they can be traced back for millennia, to
early Roman law and Greek philosophy),2 they are fundamentally
unknown to criminal-law scholars in the Anglo-American legal tradition.
And important contributions made by criminal-law scholars in the
Anglo-American tradition are similarly unknown elsewhere.
One possible explanation for the insularity of the criminal law may
have to do with the fact that the sorts of problems regarding which some
one may need a criminal lawyer tend, or at least have tended, to be loca
lized within one single jurisdiction. When it comes to criminal matters,
moreover, states are zealous about jurisdiction. Some countries'jurisdic
tion on criminal matters follows their citizens wherever they go, in ways
which are not common in other areas of the law. Often countries arro

gate to themselves jurisdiction over any criminal matter that occurs

within their territory - whether or not the participants in the criminal
process are nationals of those countries. There is a peculiarly strong link
between the criminal law and the sense of nation: criminal law is the
most national of all the branches of law, and to this extent, also the most
parochial.
And yet, not much work is done in comparative criminal law, in spite
of the relative abundance of volumes devoted to 'comparative criminal
justice' or 'comparative criminology.' Criminal law and criminal justice
are different in important ways. Criminal justice theorists are interested
in a variety of topics which are of little interest to the criminal-law theor
ist: law enforcement, penitentiary regimes, the ethical behaviour of dif
ferent participants in the legal process, and sO forth. Similarly, the
criminal law is importantly different from criminology. Criminologists
are interested in understanding criminals and the ways in which their
environment may contribute to leading them to crime, whereas criminal
law theorists are interested in understanding crime itself. Needless to say,
I am not here denying that both criminal justice and criminology are
perfectly respectable areas of study or that they relate to areas of the
criminal law itself. I am only warning against the errors of failing to dis
tinguish the criminal law from other fields and of hence assuming that
a lot of work is being done in comparative criminal law when really it
is not.

Criminal law proper concerns itself, first and foremost, with defining
human action (as a prerequisite to any criminal liability); with criminal

2 See Leo Zaibert, Five Ways Patricia Can Kill Her Husband: A Theory of Intentionality and
Blame (Chicago: Open Court, 2005).

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 THE HANDBOOK OF COMPARATIVE CRIMINAL LAW 279

liability itself and its connection to culpability, accountability, imputabil

ity, and responsibility; with the moral gradation of crime; with the defini
tion and forms of inchoate crimes; with complicity; with the justification
of punishment; and so forth. Of course, criminal law proper also con
cerns itself with the details of specific crimes and the penalties they
attract. But there is an important difference between these two sets of is
sues; each set corresponds, respectively, to what is widely known as the
'general part' and the 'special part' of the criminal law. Roughly, the gen
eral part of the criminal law is concerned with those issues which apply
across different crimes, whereas the special part is concerned with spe
cific crimes. Indeed, perhaps a tripartite division ought to be admitted;
for, in addition to general-part issues, there are other issues that, for lack
of a better name, we may loosely refer to as meta-general. These issues
concern historical, political, and philosophical aspects of the criminal
law - its sources, its theories of jurisdiction and validity, its allegiance to
foundational principles (such as the famous legality principle, nulla
poena sine lege), and some general aspects of criminal procedure.
All these issues, be they special, general, or meta-general issues, have
baffled jurists and philosophers for millennia. Investigating how differ
ent cultures have grappled with them should prove to be of immense
value. Moreover, these sorts of more theoretical questions are also likely
to be farther removed from the sorts of parochial considerations which
may obscure from view all that different criminal law systems have in
common. These questions are, after all, of universal interest and impor
tance. Finally, trying to answer these questions is also likelier to yield
important results than the picturesque though often haphazard compar
isons of the legal practices of different cultures.
These other comparisons tend to exhibit a sensationalist fascination:
did you know that in such and such place they stone people? Or that
they publicly shame criminals? This fascination often stresses a strong
sense of difference between us and them: did you know that (unlike us)
they punish homosexuality? Or that (unlike us) they punish some forms
of speech? Or that (unlike us) they impose the death penalty? Needless
to say, the frequent corollary to these sorts of assertion is that we are civi
lized, or enlightened, whereas they are barbaric, throwbacks, or just plain
cruel. In a somewhat naive attempt at open-mindedness, 'enlightened'
authors sometimes conclude the opposite: that we are the barbaric and
that they are the civilized, without, however, really transcending the
binary oversimplification.
I will return to the topic of binary oversimplifications in Parts iii and
iv below. I want to discuss first a most welcome volume devoted to com

parative criminal law proper that, while avoiding superficiality and sensa
tionalism, contributes greatly to the advancement of this field.

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280 UNIVERSITY OF TORONTO LAW JOURNAL

II The Handbook of Comparative Criminal Law

Until the publication of Kevin Jon Heller and Markus D Dubber's Hand
book of Comparative Criminal Law, there existed, in the English language,
no comprehensive volume devoted to comparative criminal law proper,
understood in the sense just sketched. Heller and Dubber's Handbook
thus helps fill a rather scandalous gap in the anglophone literature. In
light of this and of the insularity of the criminal law already described, it
should be no surprise that I enthusiastically welcome its publication.
More than two thirds of Heller and Dubber's volume is devoted to gen
eral and meta-general issues. But even when the contributors to this vol
ume discuss special part issues, they do it with a conspicuous effort to
avoid parochialism. The contributors' writing is consistently sober and
rigorous.
The Handbook does not read like a 'textbook' at all. Of course, not all
textbooks are bad, although even good textbooks tend, by their very
nature, to dilute and over-simplify issues. While it is likely that Heller
and Dubber's Handbook will be adopted for advanced courses in compar
ative criminal law, their book is not aimed at students, and it does not
read like a book that was meant to be used in a classroom. Free from the

usual 'bullets,' 'summaries,' 'key terms,' and 'study questions,' the book
reads like a professional, cutting-edge compendium of many criminal
law systems in the world. Heller and Dubber recruited an impressive
group of prestigious scholars who present comprehensive, up-to-date
overviews of the criminal law of sixteen different countries and of the
Rome Statute of the International Criminal Court. The results of this col
lective effort are immensely valuable.
Even more significantly, Heller and Dubber have evidently chosen to
ask contributors to follow a very useful pattern for the individual chap
ters of the Handbook. The chapter on each country is divided into three
sections: 'Introduction,' 'General Part,' and 'Special Part.' The introduc
tion, which contains a discussion of what I called above 'meta-general
issues,' is usually divided into five subsections: 'Historical Sketch,' 'Juris
diction,' 'Legality Principle,' 'Sources of the Criminal Law,' and 'Pro
cess.' (Only the chapter on Argentina lacks a subsection on 'Process';
the chapter on China calls this section 'Unique Criminal Process.') The
section devoted to the 'General Part' is usually subdivided into four sub
sections: 'Theories of Punishment,' 'Liability Requirements,' 'Defenses,'
and 'Sanctions.' (Only the chapters on the United States and on Egypt
fail to include a section on 'Theories of Punishment' - but more on the

section in the United States in particular, and on 'Theories of Punish

ment' below.) The section devoted to the 'Special Part' is further subdi
vided into subsections such as the following: 'Structure,' 'Homicide,'

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 THE HANDBOOK OF COMPARATIVE CRIMINAL LAW 281

'Sex Offenses,' 'Theft and Fraud,' 'Victimless Crimes,' and 'Terrorism

Offenses.'

As one would have expected, it is in the sections of the chapters of the

Handbook dealing with the special part of the criminal law that we find
greatest divergence among the different chapters. For example, the sec
tion on the special part of the chapter devoted to 'The Rome Statute of
the International Criminal Court' does not include any of the subsec
tions typical of the other chapters (other than 'Structure'); but this is
perfectly reasonable, since the section instead lists 'Genocide,' 'Crimes
against Humanity,' 'War Crimes,' and 'Aggression' - the crimes over
which the International Criminal Court has jurisdiction. Still, some of
the other chapters (all devoted to national criminal-law systems) exhibit
some variations; some deal with 'Theft and Fraud' under the heading of
'Property Offenses,' others do not; some chapters contain a subsection
on 'victimless crimes,' or on 'terrorism crimes' but others do not.
While I commend the editors for imposing this structure, it does not
come without apparent costs. One such cost may be a sort of perfunc
tory, 'check the box' attitude, whereby contributors appear compelled to
say something about every item on the imposed list only to 'comply' with
the editors' instructions. Take, for example, the section on 'Historical
Sketch,' which appears in most chapters and which is often remarkably
short. At three pages long, the historical sketch for the chapter on
French criminal law is the longest in the Handbook. The average length
for this subsection is one single page. In de-emphasizing historical con
siderations, Heller and Dubber's volume departs from past comparative
approaches to the criminal law, which tended to devote considerable
attention to history.3
Another example of the seemingly perfunctory compliance with the
overall structure Heller and Dubber imposed on the contributors is the
subsection on 'Theories of Punishment.'4 Insofar as this subsection is
supposed to contain a discussion of the thorny and important issue of
the justification of punishment - that is, of how the state can legitimately
be allowed to make individuals suffer - one would have expected the sec
tion to receive more attention than it does. This subsection is even

shorter than the 'Historical Sketch' subsection. For example, in t

3 See e.g. Luis Jimenez de Asua, Tratado de Derecho Penal (Buenos Aires, Argentina:
sada, 1964) [Asua]. This work contains historical information throughout; most of
first volume is devoted to historical matters.

4 This is an infelicitous, if widespread, misnomer: a theory of something tells us what

something is, whereas the topic addressed in this volume under this heading concerns
not what punishment is but rather what justifies it; see Leo Zaibert, Punishment and
Retribution (Aldershot, UK: Ashgate, 2006) at 8ff.

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282 UNIVERSITY OF TORONTO LAW JOURNAL

chapter on Israel, the subsection on 'Theories of Punishment' has a for

midable length of thirty-four words. As noted above, the chapters on
Egypt and the United States do not even contain a section on this rather
important topic.
In spite of these relatively minor differences and of the existence of
some overly brief sections, the structure the editors have imposed on the
contributors does its intended job. It allows the reader to compare, with
considerable ease, one country's, say, liability requirements or its views
on homicide or on the legality principle with those elsewhere. It is, of
course, not difficult to imagine a volume as comprehensive and ambi
tious as Heller and Dubber's becoming unwieldy. But Heller, Dubber,
and their contributors have succeeded in making this volume remark
ably user-friendly.
But this is not the only advantage of the common structure; the main
advantage is more substantial. The very fact that Heller and Dubber's
common structure is even imposable, that it is applicable to all these dif
ferent criminal-law systems, effectively highlights that most criminal-law
systems in the world share a series of assumptions and that they face simi
lar problems. Whether a certain 'happening' is a 'doing' is a difficult the
oretical question with which any criminal-law system has to grapple;
similarly, how to grade the blameworthiness of wrongdoing is another
difficult problem facing any criminal-law system worth investigating, and
the same holds true for a host of other issues discussed in the Handbook.

Moreover, Heller and Dubber's Handbook effectively brings to light

how fruitful it is to compare the answers that different criminal laws have
offered to these thorny questions. Sometimes the answers are, in spite of
linguistic or framework differences, extraordinarily similar; other times,
the answers are somewhat different but complementary - that is, the an
swers are amenable to being combined into a single, more satisfactory
answer. But in the vast majority of cases, even including those rare in
stances in which the answers are radically different, the comparison
between them is enlightening.
The only substantial exception to the overall structural uniformity
among the chapters in the Handbook is the chapter devoted to the United
States. While the chapter does cover many of the same issues that are cov
ered elsewhere, it does not follow the tripartite division to which every
other contributor adhered - and it displays a certain nonchalance found
nowhere else in the Handbook. For example, when discussing procedural
matters, Paul Robinson (the author of this chapter) offers merely 'a brief
description of a procedural process that is typical in most American crim
inal justice systems' (568). To do more would presumably be either too
misleading or too unmanageable, since, as Robinson tells us, 'the author
ity to define and punish crimes is vested primarily in the states, not in the

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 THE HANDBOOK OF COMPARATIVE CRIMINAL LAW 283

federal government,' and there are, in fact, 'fifty-two American criminal

justice systems' (567). Still, and independendy of the degree of indepen
dence of these infra—United States jurisdictions, an attempt to bring the
chapter into closer structural proximity with the others would have been
welcome. And welcome not only in terms of the ease of use already men
tioned but also to avoid the impression of yet another manifestation of
'American Exceptionalism' - exceptionalism, in this case, both at the sty
listic and, given the far-reaching implications of the common structure
just mentioned, at the purely theoretical level as well.

Ill The comparativist's biases

It is hard to make comparisons without thereby also judging the virtues

and vices of the entities being compared. A comparison between, say, a
painting by Oskar Kokoschka and one by me will almost inescapably lead
to the normative judgment that Kokoschka's painting is better than mine.
Normative judgments are not necessarily to be avoided, and indeed,
sometimes they are useful and important; but they can smuggle in biases.
For example, one particularly irritating aspect of comparative criminal
law treatises is their partiality toward German criminal law and their at
times gratuitous animosity toward Anglo-American criminal law. 5
For the most part, Fleller and Dubber's Handbook reads like a non
partisan, non-ideological book - and this is, of course, a good thing. The
most conspicuous exception to this even-handed tone is found in Heller
and Dubber's own introduction to the volume. There, Fleller and Dub
ber appear to operate with precisely the sort of binary opposition which
I have suggested ought to be avoided. While it is hard to deny that the
traditions of Anglo-American and German criminal law have been very
influential, to give these two traditions the centre stage makes it easier to
(unwittingly) lapse into partisanship.
Consider the following passage, which exhibits a dismissive attitude
towards Anglo-American criminal law:

In fact, if not in theory, Anglo-American criminal law continues to be regarded

as an exercise of the police power of the state, where the power to police is
thought to be closely related, even essential, to the very idea of sovereignty.
More particularly, the police power is the modern manifestation at the state
level of the deeply rooted power of the householder (oikosnomos, paterfamilias)
over his household (oikos, familia). (1)

5 For some of Jimenez de Asua's remarks on this subject, see Leo Zaibert, A Non
Aretaic Return to Aristotle' (2011) 97 Archiv fur Rechts- und Sozialphilosophie 235
at 248.

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284 UNIVERSITY OF TORONTO LAW JOURNAL

Perhaps Anglo-American criminal law is correctly seen as an exercise in

the police power of the state, as Heller and Dubber claim. But this vol
ume does not help us see that this is the case (if indeed it is), for Heller
and Dubber do not really argue for this position and the contributors do
not even discuss it. Moreover, other than tracing its lineage (in the pas
sage just quoted) Heller and Dubber do not tell us much as to what the
police power is.
What is abundantly clear is that Heller and Dubber believe that for a
criminal law to be a manifestation of the police power of the state is a
bad thing - above all because it allegedly renders such criminal law op
posed to comparative approaches. Since Heller and Dubber single out
Anglo-American criminal law as the one criminal law which is (regarded
as) a manifestation of the police power of the state, it turns out that
Anglo-American criminal law is also singled out as the one criminal law
opposed to comparadve approaches. And this view is at odds with the
view I presented at the outset; that is, that the law in general, and the law
everywhere, has a tendency to be parochial and so then also inimical to
comparative approaches. I admitted that the criminal law tends to be
even more parochial than other areas of the law, but I based these claims
on reasons that have nothing to do with any particular jurisdiction.
Perhaps Anglo-American criminal law really is more parochial than
other criminal laws, but this need not be the result of its being (if indeed
it is) a manifestation of the police power of the state. Moreover, maybe
Anglo-American criminal law really is a manifestation of the police
power of the state (more so than any other criminal law, etc.), and yet
this would not by itself warrant the strong connection that Heller and
Dubber make between parochialism and the police power. In order to
make the case for their claims about Anglo-American criminal law, Hel
ler and Dubber needed arguments stronger than those they present in
the Handbook. Consider the main argument they put forth, whose first
premise is contained in the passage just quoted:
[1] Anglo-American criminal law continues to be regarded as an exercise of the
police power of the state. (1)

It would have been helpful to inform us about who regards Anglo

American criminal law in this way, about whether this regarding is justi
fied or accurate, and about whether the fact that some (many? most?)
people regard it as such is enough to make it such. But no matter; let us
stipulate that Anglo-American criminal law, and Anglo-American crimi
nal law alone, indeed m just an exercise of the police power of the state
and move on to their second premise.
[2] As essentially discretionary, and defined by its very indefinability, the police
power is incompatible with principled critique. (2)

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 THE HANDBOOK OF COMPARATIVE CRIMINAL LAW 285

Dubber has written extensively on the police power, and the editors in a
footnote (10, n 2) do refer us to one of Dubber's publications on this
topic. But this reference does not, I think, relieve the editors of their
obligation to at least summarize here some of Dubber's arguments in this
regard. Why is the police power 'essentially discretionary? and why is it
'defined by its very indefinability' (whatever this incantation may turn
out to mean)? Moreover, even if these two claims are granted, why do
Heller and Dubber think that these two claims are connected to the
even more grandiose claim that the police power is 'incompatible with
principled critique'? What, for that matter, is 'principled critique'? Ho
does it relate to other similar expressions Heller and Dubber use, such
as 'critical analysis'? Can there be (good) critique that is not principled?
Can there be (good) analysis that is not critical?
Why would the fact, if it were a fact, that Anglo-American criminal law
is 'defined by its own indefinability' make it 'incompatible with princi
pled critique'? The very claim that something is 'defined by its own ind
finability' can be interpreted as a criticism - as in Heller and Dubber's
case. By claiming that the police power is 'defined by its own indefinabi
ity' Heller and Dubber could be taken to be criticizing the police power
perhaps also tacitly endorsing the (reasonable) view whereby thing
ought to be defined otherwise than 'by their own indefinability.' But
this would eo ipso prove that neither the police power nor a criminal
law which is a manifestation of the police power are beyond criticism
after all.

But, once again, let us put aside the issue of the lack of support for
Heller and Dubber's premises; let us stipulate that the claim that Anglo
American criminal law is 'incompatible with principled critique' is axio
matically true, and let us focus on the final part of their argument, as if it
followed validly from the previous premises.

[3] Insofar as a penal policy regime is not subject to critical analysis, it has no
use for regarding criminal law comparatively. (2)

I think that this was not the conclusion that Heller and Dubber needed.
For, if the first part of this claim is true, then Anglo-American criminal
law (since it is but the exercise of the police power, etc.) is beyond any
criticism at all. So understood, Anglo-American criminal law would have
'no use' for any theorizing whatsoever - and not just for comparative theo
rizing. Were this whole conclusion true (including an unstated and un
supported premise whereby ' [4] to regard criminal law comparatively is
to engage in critical analysis'), it would then, indeed, be true that the
Anglo-American criminal law (insofar as it is taken to be, in the current
context, a synonym of 'penal policy regime') would have 'no use' for
comparative approaches. But this way of putting things would be too

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286 UNIVERSITY OF TORONTO LAW JOURNAL

understated: Anglo-American criminal law would have no use for pretty

much any theoretical, critical, historical, sociological, or philosophical
approach whatsoever.
Since Anglo-American criminal law is often subjected to critical analy
sis, the main conclusion of Heller and Dubber's argument is, I think, pa
tently false. If what they wanted to conclude was that Anglo-American
criminal law is particularly resistant to comparative critical analysis, then
they needed different premises, and different arguments.
Still, even this narrower claim seems problematic. For after telling us
that Anglo-American criminal law is the exercise of police power and
that thereby it is incompatible with any criticism whatsoever (including,
a fortiori, comparative criticism), Heller and Dubber tell us:

At least since the completion of the Model Penal Code in 1962 and the wide
spread reform of American criminal codes in its wake, American criminal law
can no longer be regarded as a common-law subject. Instead, it is a collection of
self-standing code-based jurisdictions, dominated by the criminal law systems of
the fifty states and the District of Columbia, superimposed on which is the ever
growing body of federal criminal law. In teaching and in scholarship - though
decreasingly in judicial opinions, which by necessity concern themselves with
the criminal law of the jurisdiction in question - the subject of 'American crimi
nal law' survives as a form of domestic or internal comparative criminal law,
where norms from various American jurisdictions are compared, contrasted,
and (with difficulty) synthetized into a more or less coherent whole. (2)

As it turns out, then, American criminal law - surely a significant part

of 'Anglo-American' criminal law - is not 'incompatible' with compara
tive approaches after all, as Heller and Dubber had asserted on the same
page of their introduction. American criminal law, by their own admis
sion, is, in fact, comparative through and through (in spite of being 'an
exercise of the police power of the state,' etc.). Of course, there may
exist important differences between 'internal' or 'domestic' comparative
approaches, on the one hand, and the sort of 'external' comparativism
which Heller and Dubber claim American criminal law is resistant to, on
the other. But, first, Heller and Dubber should have told us something
about these differences: how do these two forms of comparativism actu
ally differ? What do they have in common? Are they mutually exclusive
(or mutually hindering)? Referring to the 'internal and domestic' com
parativism of contemporary American criminal law as 'implicit compara
tivism' (3) or opposing it to the 'systematic inquiry into foreign criminal
law' (3) of German Criminal law without telling us more about these dif
ferent types of comparativism is not sufficiently illuminating. (Canada,
we are told, falls 'somewhere in between these two forms of comparative
criminal law' (3).) Second, and more importantly, these two views seem

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 THE HANDBOOK OF COMPARATIVE CRIMINAL LAW 287

to me to be in too much tension. After all, Heller and Dubber believe

both that American criminal law is compatible with 'domestic' or 'inter
nal' comparativism and that American criminal law is incompatible with
any sort of comparative approach. I do not think that they can have it
both ways.
For these reasons, I think that Heller and Dubber's suggestions that
Anglo-American criminal law has 'no use' for comparative approaches
and that it is 'incompatible' with principled critique are not persuasive.
Heller and Dubber's take on German criminal law is unpersuasive as
well, although rather than being too dismissive (as when they discuss
Anglo-American criminal law), now they are too uncritical. Immediately
after summarily dismissing Anglo-American criminal law (in the way just
described), Heller and Dubber tell us that

comparative analysis fits more comfortably with a conception of criminal law as

law, which recognizes and attempts to meet the challenge of a system of state
punishment consistent with the state's function of safeguarding and manifesting
the autonomy of its constituents under the rule of law (i.e., in a Rechtsstaat). (2)

It is noteworthy that Heller and Dubber would choose to give us the Ger
man term for a concept that they could have captured perfectly well in
English: 'rule of law.' Needless to say, the use of a German term is not
enough to conclude that Heller and Dubber are, indeed, sublimating
German criminal law, though this becomes a bit more obvious if we also
note two additional points. First, they only mention one figure, the Ger
man PJA Feuerbach. Second, the only example of a comparative
approach to the criminal law which Heller and Dubber mention is a Ger
man effort (from over a century ago).6 This entirely German operation
sought (as its very title makes clear) to advance the reform of German
criminal law alone.

What in my opinion emerges from all this is that, for Heller and Dub
ber, there is a sharp contrast between 'criminal law as law' (German
criminal law) and 'criminal law as the exercise of the police power of the
state' (Anglo-American criminal law). Anglo-American, or at least Ameri
can, criminal law constitutes one extreme along the spectrum of existing
criminal law systems whose other extreme is German criminal law. Fur
thermore, Heller and Dubber see one of these extremes as bad (Anglo
American criminal law) and another extreme as good (German criminal

6 Vergleichende Darstellung des deutschen und auslandischen Strafrechts: Vorarbeiten zur

deutschen Strafrechtsreform, 16 vols (Berlin, 1905-9). As Jimenez de Asua points out, the
proportion of this work devoted to theoretical parts of the general part is relatively
small: of the sixteen volumes, one is an index and nine are devoted to the special part;
see, Asua, supra note 3, vol 1 at 319.

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288 UNIVERSITY OF TORONTO LAW JOURNAL

law); one extreme is all too quickly associated with the bad 'exercise of
the police power' and the other with the good Rechtsstaat, one extreme is
allegedly 'incompatible' with comparative analyses (other than 'internal'
or 'domestic' comparative analyses - though, as we just saw, this splitting
of comparativisms into different, better and worse, kinds is problematic),
whereas the other extreme is allegedly very welcoming of comparative
analyses.
This implausible picture contains exactly the sorts of normative over
simplifications which I think flow from the adoption of the binary dis
tinction about which I warned above.

rv The rule of law and comparative criminal law

Heller and Dubber's general thesis that comparative analysis 'sits more
comfortably with a conception of the criminal law as law ... in a Re
chtsstaat (2) seems at odds with the fact that whether or not a given
nation is receptive to (external) comparative approaches to the criminal
law has not at all correlated with whether this nation is a Rechtsstaat.

'Comparative criminal law' is a common title for books in the Spanish,

Italian, and French tradition - to mention but three traditions other
than the German. Indeed, a bibliography listing important works on
comparative criminal law written in different languages would have been
a welcome addition to Heller and Dubber's volume.7 Many countries be
longing to legal traditions in which comparative approaches to the crimi
nal law have been most welcome have not been good exemplars of a
Rechtsstaat.

Germany itself has not been an inspiring Rechtsstaat. German criminal

law, independently of whatever interest it may have had in comparative
criminal law, coexisted at times with a German state which constituted
one of the most grotesque antitheses to the Rechtsstaat the world has ever
seen. And German criminal-law professionals seemed not one bit more
protected from Nazi ideology than other segments of the German popu
lation, in spite of Heller and Dubber's allegation that German criminal
law has been (since at least '1871') 'remarkably systematic' in 'protecting
fundamental interests' (6).
The vulnerability of German criminal law to impoverished versions of
positivism, to conservatism, and to pernicious forms of nationalism is but
one part of the complicated explanation of the astonishing ease with
which Nazism swept through Germany. And Dubber himself has,

7 For such sources, see Asua, supra note 3.

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 THE HANDBOOK OF COMPARATIVE CRIMINAL LAW 289

elsewhere, discussed German criminal law's relationship with Nazism.8

But even putting aside the Nazi regime itself (which obviously constitutes
a Gargantuan feat of heavy lifting), throughout its history German crimi
nal law seems not to have been particularly interested in 'safeguarding
and manifesting the autonomy of its constituents' (2) or in 'protecting
fundamental interests' (6).9
If, in spite of these weaknesses, German criminal law still deserves to
be seen as the 'good extreme' of the binary opposition within which Hel
ler and Dubber operate, they should have offered an explanation as to
how an admirable criminal-law theory could have coexisted with not-so
admirable - and at times with abominable - German regimes. For what
ever is worth, I have elsewhere argued that important aspects of German
criminal-law theory do offer some advantages over its counterparts.10
But baldly to laud German criminal law for its 'safeguarding and mani
festing the autonomy of its constituents' (2), without placing this asser
tion within its most obvious historical context, is problematic. Problems
are, of course, further exacerbated when this assertion is presented in
tandem with the presentation of Anglo-American criminal law in a par
ticularly bad light.
I take aim here at the very model Heller and Dubber employ; even if it
were accurate, a spectrum with neatly defined (and evaluated) extremes,
strikes me as unhelpful. One reason for engaging in comparativism is to
avoid simplifications, particularly simplifications that stem from a lack of
familiarity with different traditions. This is not to endorse any form of re
lativism. Some things are, indeed, better than others; but when the
things compared are even a litde bit complex - say, like criminal law sys
tems - then the comparisons tend to be complicated: in some respects
some criminal law systems are, perhaps, better than others, but in other
respects they are not. The model for comparing criminal law systems
that Heller and Dubber appear to presuppose in their introduction, in
volving the twin enterprises of presenting Anglo-American criminal law
in a markedly negative light and German criminal law in a markedly pos
itive light, is, in my opinion, not good.

8 Markus Dirk Dubber, Judicial Positivism and Hitler's Injustice' (1993) 93 Colum L
Rev 1807. See also Francisco Munoz Conde, Edmund Mezger y el Derecho Penal de su
Tiempo (Valencia, Spain: Tirant LoBlanch, 2003).
9 Take but one single example, Germany finally decriminalized homosexual intercourse
in 1994, much later than many other nations. See, Susanne Zur Nieden, ed, Homosex
ualitat und Staatrason: Manlichkeit, Homophobie und Politik in Deutschland 1900-1945
(Frankfurt: Campus, 2005).
10 See e.g. Leo Zaibert, 'Philosophical Analysis and the Criminal Law' (2001) 4 Buff
Crim L Rev 100-39.

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290 UNIVERSITY OF TORONTO LAW JOURNAL

IV Epilogue

At this point, the reader may ask how, in light of these disagreements
with Heller and Dubber, I can have such a positive overall opinion of
their Handbook. I hope I only need to expand briefly on the answer to
this question, since, in embryo, it was already sketched out above. The
answer is that there is virtually no connection between the remarks by
Heller and Dubber in their introduction with which I disagree and any
thing discussed by the other contributors to the volume. The contribu
tors to this volume discuss criminal law proper. As noted above,
sometimes they even discuss matters which I have called meta-general,
but even these meta-general issues are more or less directly connected to
the criminal law. In other words, the Handbook is, appropriately, devoted
to questions clearly belonging to the criminal law. Heller and Dubber's
excursions into the police power, into the concept of autonomy (and
into which type of legal system better protects it), and into the nature of
the Rechtsstaat are disconnected from the rest of the contributions.
Unlike Heller and Dubber in their introduction, the authors of the
other chapters of the Handbook do not take sides as to which legal tradi
tion is better or which country better respects (the autonomy of) its citi
zens. (Incidentally, Heller's own chapter on 'The Rome Statute of the
International Criminal Court' is essentially non-partisan.)
But once I have answered this hypothetical question, a follow-up ques
tion immediately presents itself: why engage at all (or so much) with
those aspects of Heller and Dubber's introduction with which I disagree,
if they are so disconnected from the actual contributions in the Hand
book:? The answer is that these abstract or methodological issues are not
just off-putting or unsupported; they exemplify a real danger in the very
enterprise of comparativism: that we may (unconsciously or otherwise)
smuggle ethnocentric, anachronistic, or partisan elements into our
investigation. Luckily, given the disconnect between those aspects of Hel
ler and Dubber's introduction with which I disagree and the rest of the
Handbook, the danger did not, on this occasion, materialize - but this is
not a reason not to warn about its existence.11

11 Moreover, Heller and Dubber themselves do not need to be warned. Dubber, for one,
has written on comparative criminal law without exhibiting any of the shortcomings
that I detect in the introduction to the Handbook. For example, in his 'Comparative
Criminal Law,' Dubber offers a non-partisan and extremely nuanced overview of com
parative criminal law proper; Markus D Dubber, 'Comparative Criminal Law' in
Mathias Reimann & Reinhard Zimmerman, eds, The Oxford Handbook of Comparative
Law (Oxford: Oxford University Press, 2006) 1287. Oddly, in the Handbook, Heller
and Dubber do not refer to Dubber's apropos 'Comparative Criminal Law,' though
they do refer to Dubber's The Police Power: Patriarchy and the Foundations of American

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 THE HANDBOOK OF COMPARATIVE CRIMINAL LAW 291

One need not agree (though of course, on may) with any of Heller
and Dubber's views in their introduction in order to agree with them in
that it is likely that comparing criminal law systems will contribute to our
better understanding of any of those systems. And such better under
standing should in turn lead to progress in the development of the crimi
nal law and related fields. For years to come, any comparative approach
to the criminal law will have to involve in-depth consultation of Heller
and Dubber's Handbook.

Government (New York: Columbia University Press, 2005), which is not pertinent to the
discussion of comparative criminal law proper.

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