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3 Eur. Crim. L. Rev. 3 (2013)

handle is hein.journals/euclr3 and id is 1 raw text is: 











The Legislation Critical Concept of Goods-in-law under Scrutiny


                                                                            Articles


    The Legislation Critical Concept of Goods-in-law under
                                       Scrutiny

                                       Claus Roxin1
 I. Introduction
   For almost ten years, the question of whether it is possible to curtail the state's
 penal powers by restricting them to the violation or endangerment of goods-in-law
 (Rechtsgiiter) has been the subject of lively discussion again in Germany.2 Hefendehl3
 has traced the newest developments until 2006. The debate then gained even
 greater importance due to the German Federal Constitutional Court's4 (Bundesver-
fassungsgericht) 2008 decision that no limits to the legislator's penal competences
could be derived from     the goods-in-law principle. In 20105, I then responded in a
detailed statement On the more recent development of the goods-in-law debate
( Zur neueren Entwicklung der Rechtsgutsdebatte) and insisted on the legislation critical
function of the goods-in-law approach.
   Abroad, too, the question of whether the tasks of criminal law can be determined
 by way of protection of goods-in-law is met with much interest and controversial
 echo. Thus, for instance, Bacigalupo6 writes that the concept of goods-in-law                is
 given a decisive legitimating function in Italy and Spain. This is confirmed by the
 fact that in the commemorative volumes dedicated to me in 2011, Romano7,
 PolainoNavarrete and Gimbernatconsidered the function of the good-in-law in crim-
 inal law. Also in Greece, the question is much discussed. While Androulakisl° denies
 that the protective goods-in-law principle has any restrictive effect on penalisation,


   ' Prof. Dr. Dr. h. c. mult. Claus Roxin, Professor Emeritus Ludwig-Maximilians-University Munich. Translation
 by Research Assistant Carl Robert Whittaker, B. A. (Oxon.), Ludwig-Maximilians-University (Munich).
 2 An important trigger for this was a 2002 conference on Die Rechtsgutstheorie (The Theory of Goods-in-Law),
 whose reports and discussions were published in 2003 by Hefendehl/von Hirsch/Wohlers in an anthology. In 2007, an
 extended edition of the anthology was also published in Spain. The discussion was continued in 2004. The reports
 and discussions of the follow-up conference were published in 2006 by von Hirsch/Seelmann Wohlers under the title
 Mediating Principles. Begrenzungsprinzipien bei der Strafbegrindung.
 3 Hefendehl, Goltdammer's Archiv ffir Strafrecht (- GA), 2007, 1 et seq.
 4 Entscheidungen des Bundesverfassungsgerichts (- BVerfGE) 120, 224 et seq.
 5RUir, Festschrift (- FS) Hassemer, p. 573 et seq.
 6 Bacigalupo, FS Jakobs, 2007, p. 1 et seq.
 7 Romano, ScientiaUniversalis, FS Roxin, 2011, p. 155 et seq.
    PolainoNaarrete, as fn. 6, p. 169 et seq.
    Gimbernat Festgabe ffir Claus Roxin zum 80. Geburtstag, GA, 2011, p. 284 et seq.
    Androulaki, FS Hassemer, 2010, p. 271 et seq. with reference to Manoledaki as a disciple of the allegedly
 critically functioning concept of goods-in-law (272, fn. 3).


EuCLR

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