Murder in England and Germany: note

This is a very brief note, following from the comments on the earlier entry.

Looking at the definitions is not enough – you need to look at textbooks too. Really, legal translation seems like reinventing the wheel every time. Maybe there are Dr. Phil. theses out there comparing the various criminal offences in common law and German systems. Comparative law books tend to give criminal law short shrift.

Anyway, the English and German definitions are both weird, but the courts have developed complex systems of assessing homicide based on those definitions.

The German definition dates from 1942 or thereabouts. Before then, the definition of murder was based on premeditation. It must have been more similar to the English definition.

This German definition defines not murder but ‘the murderer’. It is based on the idea that people can be fundamentally bad. It is also based on evil acts. Thus if you kill someone who is asleep, you are acting heimtückisch – treacherously – and it is murder.

In English law, malice aforethought means the form of mens rea (subjektiver Tatbestand) that makes something murder. It doesn’t imply cold-blooded premeditation. If you kill someone in a fight and just before killing you want either to kill him or to hurt him very seriously, that is murder in English law – but I don’t think it is in German law. It would be the equivalent of voluntary manslaughter there.

In English law, there are defences and justifications. In German law, there are also defences and justifications. In both systems, you can be incapable of murder for reasons of age or mental state.

What I don’t know is the significance in the present case of the part of the German definition of murder ‘to satisfy his sexual desires’. Would this be enough, even with the consent of the victim? I would need to know more about German law to answer that.

Perhaps a comparison will be made somewhere in the next weeks.

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