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Weigend, Thomas --- "Criminal Law and Criminal Procedure" [2006] ELECD 171; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 20

Section Title: Criminal Law and Criminal Procedure

Author(s): Weigend, Thomas

Number of pages: 14

Extract:

20 Criminal law and criminal procedure*
Thomas Weigend


1 The relevance of comparative criminal law
1.1 Practical relevance
Comparative criminal law has traditionally been of mainly academic inter-
est. Criminal law was regarded as deeply rooted in a country's social mores
and cultural preferences, defying transnational assimilation and harmon-
ization. The purpose of studying foreign systems of criminal justice was
therefore seen as more educational 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. Pradel, 1995, p. 10; Neumann, 2000, p. 128; Reichel,
2005, pp. 4­5).
Criminal courts, as opposed to their civil counterparts, do not normally
apply foreign criminal law. When they have jurisdiction over an offence they
will apply their national law, both substantive and procedural. There are
only a few exceptional situations when foreign law has to be taken into
account. These apply to offences committed abroad: in many legal systems,
an offender acting outside the jurisdiction of the forum state will be pun-
ished only if the act in question is criminal both in the forum state and in
the state where it was committed. Similarly, `double criminality' has been a
traditional requirement for extraditing suspects; only if the act is punish-
able in both the requesting state and the requested state will extradition be
granted. In such instances, it has always been necessary for courts to take
...