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

This article examines the cultural limits on uniformity and formalism in the German penal code. In an era in which prosecutorial power appears to be expanding exponentially in common law countries such as the US and the UK, 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. This paper demonstrates 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 prosecutors routines of practice. The author argues 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. Rather, their decisions are shaped by practice routines that are influenced by political, cultural, and organizational processes at both the regional and local levels. Adapted from the source document.