Elgar Encyclopedia of Comparative Law, Second Edition
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Elgar Encyclopedia of Comparative Law, Second Edition

Edited by Jan M. Smits

Written by leading authorities in their respective fields, the contributions in this accessible book cover and combine not only questions regarding the methodology of comparative law, but also specific areas of law (such as administrative law and criminal law) and specific topics (such as accident compensation and consideration). In addition, the Encyclopedia contains reports on a selected set of countries’ legal systems and, as a whole, presents an overview of the current state of affairs.
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Chapter 22: Criminal law and criminal procedure*

Thomas Weigend


Traditionally, criminal law was regarded as deeply rooted in a country’s social mores and cultural preferences, defying transnational assimilation and harmonization. The purpose of studying and comparing foreign systems of criminal justice was therefore seen as academic rather than practical: looking at other nations’ criminal laws was to help better understand and put into context one’s own laws; comparison could also demonstrate the relativity of legal solutions to social problems (cf. Eser, 1998, pp. 1510–20; Pradel, 2008, p. 11; Beck, 2011, pp. 67–72; Kremnitzer, 2011, pp. 30–32). Criminal courts, in contrast to their civil counterparts, do not normally apply foreign criminal law. When they have jurisdiction over an offence they will apply domestic law, both substantive and procedural. There are only a few exceptional situations when foreign law has to be taken into account. In many legal systems, an offender who has acted outside the jurisdiction of the forum state will be punished only if the act in question is criminal both in the forum state and in the state where it was committed.

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