Title: Principal Characteristics of Legal Policy in the Recent European Drafts of Criminal Laws: A Comparative Study
Abstract: The modern policies of criminal law are dominated by the individualization of criminal legislation. The rigid scheme should be abandoned, so far as compatible with legal policy, and the act should not be viewed by itself alone, but also from the standpoint of the law-breaker. The opportunity should exist, while judging the crime, to consider not only the circumstances under which the act took place, but also to allow for the personality of the defendant. In other words, as far as possible under our present form of legislation, a means is to be provided for the realization of the ideal of every criminal code, which is that the defendant may obtain justice. Our desire is not solely to punish the malefactor; we wish also to improve him and, if there is any possibility, to make him a useful member of society. The modern tendencv of European criminal legislation as it is expressed particularly in the German, Czechoslovakian and Swiss legislative drafts, is not, however, intended to endanger or surrender the public interest in the attainment of this great goal. This position is the logical consequence of the fundamental viewpoint of criminology with regard to this very problem of criminal legislation, as described briefly above. During the evolution from the rigid standards to an elastic system, the State is under an obligation to observe carefully the experiment which is in progress. It is only an experiment because thus far there are no conclusive results clearly indicating the way to be taken. Furthermore, the European criminal laws show, in their broad outline, the increasing consciousness that it is not solely the state's duty to punish crime in each individual case, but that it is one of her most noble duties to prevent altogether the commission of crime, as, for instance, by means of physical restraint of the individual if necessary.