The cultural limits on uniformity and formalism in the German penal code

While German constitutional law underwent a profound change in the post-war period, the roots of the states' legal culture extend back to Europe's civil law tradition. In particular, the states' public law codes, which dated back to the late nineteenth century, aimed to circumscribe judicial discretion and create a legal system that honored the principle of legality. Germany's rededication to the continents' civil law tradition played a pivotal role in crafting the legal foundations of a post-war state. For many legal theorists, fidelity to the principle of legality is a key pillar of the Rechtsstaat. This formalistic view of the role of law in society reflects a philosophy of state authority in which the law sharply circumscribes state action. Pursuant to this vision, it is the legislature, rather than the courts, that bears the sole responsibility for law-making. This division of state authority aims to enhance the laws predictability and place a premium on legal certainty by preventing judges from interpreting the law. A key goal of Germany's institutional structure is to carefully circumscribe both judicial and prosecutorial discretion. In an era in which prosecutorial power appears to be expanding exponentially in common law countries such as the United States and the United Kingdom, a critical question is whether or not Germanys formalistic vision of the law and legal institutions succeeds in circumscribing prosecutorial discretion and in producing uniform outcomes. In this paper, I demonstrate that the answer to that question can be found, not in the content of the criminal law, nor in the structure of German federalism, but rather in prosecutor's routines of practice. I argue that the criminal law cannot produce uniform and predictable outcomes in the absence of consistent routines of practice. While the law specifies a range of possible outcomes for criminal offenses, the daily decisions made in prosecution offices throughout Germany ultimately shape the face of justice on the front lines. Rather than operating in an autonomous and predictable manner, the federal codes of criminal law and procedure function merely as loose constraints on decision-making. Accordingly, German prosecutors do not operate as detached legal scientists who simply apply the law to the facts of a particular case. Adapted from the source document.