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A Legal Theoretical Approach to Criminal Procedure Law: The Structure of Rules in the German Code of Criminal Procedure

Published online by Cambridge University Press:  06 March 2019

Matthias Mittag

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In 1969, the language philosopher John R. Searle published his book “Speech Acts: An Essay in the Philosophy of Language,” wherein he developed the theory of speech acts of John L. Austin into a more normative direction. Though the philosophy of language is not the main issue of this article, Searle spoke out, for the first time, on a fundamental distinction between two different kinds of rules, namely constitutive and regulative rules. Actually, since that time the distinction between these two different types of rules has become fairly common in legal theory, but not in criminal procedure law or in the theory of procedure law. Only sporadically have German legal scholars gone into this distinction. This is astonishing with regard to criminal procedure law in particular because, even before 1969, some scholars had construed procedural rules as rules of a game. In doing so, they addressed an important characteristic of constitutive rules, namely the expression of the conditions of a certain result. However, the construction of procedural norms as rules of a game is imprecise because not all procedural norms actually work in this way. This becomes clear when one transfers Searle's distinction to criminal procedure law.

Type
Articles
Information
German Law Journal , Volume 7 , Issue 8 , 01 August 2006 , pp. 637 - 645
Copyright
Copyright © 2006 by German Law Journal GbR 

References

1 John R. Searle, Speech Acts: An Essay in the Philosophy of Language (1969).Google Scholar

2 John L. Austin, How to do Things with Words (1962).Google Scholar

3 See John R. Searle, supra, note 1, 33–42. However, in 1955 John Rawls had already distinguished in a similar sense between a “summary view” (his equivalent to regulative rules) and “rules of practice” (his expression for constitutive rules), see John Rawls, Two Concepts of Rules, 64 Philosophical Review 3, 22 and 25 (1955). Eight years before Searle, H.L.A. Hart described the contrast between rules which are “mandatory in the sense that they require people to behave in certain ways,” and rules which prescribe procedures, formalities, and conditions for a certain result (e.g. marriages, wills, and contracts), “indicate what people should do to give effect to the wishes they have”, see H.L.A. Hart, Concept of Law 9 (1961). We will see that this is very similar to Searle's distinction between regulative and constitutive rules.Google Scholar

4 See, e.g., George P. Fletcher, Basic Concepts of Legal Thought 45 (1996), Anthony Dickey, The Concept of Rules and the Concept of Law, 25 American Journal of Jurisprudence 89, 90 (1980), or from German literature Klaus F. Röhl, Allgemeine Rechtslehre 205 (2nd ed., 2001): “imperative and constitutive rules”. Critical of this distinction, see G. J. Warnock, The Object of Morality 37 (1971).Google Scholar

5 See Philipps, Lothar, Wann beruht ein Strafurteil auf einem Verfahrensmangel?, in Festschrift für Paul Bockelmann 831, 840 (Arthur Kaufmann et al., eds., 1979); Knut Amelung, Normstruktur und Positivität strafprozessualer Beweisverbote, in Festgabe für Hilger 327, 330 (Wolter et al., eds., 2003). However, this does not mean that this distinction was not used for other issues, see for instance Knut Amelung (Irrtum und Täuschung als Grundlage von Willensmängeln bei der Einwilligung des Verletzten 14 [1998]), which made use of the distinction between these two kinds of rules in order to clarify that the rules of the Willenserklärung (declaration of intention, see § 104 German Civil Code [BGB]) are not able to solve the problems of the unregulated Einwilligung (consent to an injury).Google Scholar

6 See, e.g., Goldschmidt, James, Prozeß als Rechtslage 257 (1925); Eberhardt Schmidt, Lehrkommentar zur StPO vol. 1 annotation 41 (2nd ed., 1964); see also Niklas Luhmann, Legitimation durch Verfahren 103 (1983); Andreas Popp, Verfahrenstheoretische Grundlagen der Fehlerkorrektur im Strafverfahren 259 (2005).Google Scholar

7 Grundgesetz (GG) (Basic Law) art. 20 para. 3 demands such statutorily authorizations, which are again compatible with the constitution. All statutes mentioned in this article are available at: http://www.iuscomp.org/gla/.Google Scholar

8 However, there is not a logical connection between a regulative rule and a sanction, but rather a practical connection. See, Anthony Dickey, supra, note 4, 101. We will see there are regulative rules without a sanction in a literal sense.Google Scholar

9 See, Knut Amelung, supra, note 5, 330.Google Scholar

10 Searle explains constitutive rules for social interactions through the well-known example of the rules of chess: Moving certain figures on a board can be classified as playing chess if and only if there are rules which make such a classification possible, see, John R. Searle, supra, note 1, 34.Google Scholar

11 Constitutive rules thereby do often form complete systems, see, Anthony Dickey, supra, note 4, 97.Google Scholar

12 For objections from a philosophical point of view see Christopher Cherry, Regulative Rules and Constitutive Rules, 23 The Philosophical Quarterly 301 (1973).Google Scholar

13 See Warnock, G. J., supra, note 4, 37; see also Joseph Raz, Practical Reason and Norms 109 (1999).Google Scholar

14 Therefore, it is not accidental whether or not a norm is formulated as a constitutive rule; for a different position see G. J. Warnock, supra, note 4, 37–38. For the same reasons, the further objections of Warnock can be refused.Google Scholar

15 This question has been raised and affirmed by, e.g., Joseph Raz, supra, note 13, 109; Anthony Dickey, supra, note 4, 108; see also Fernando Atria, On Law and Legal Reasoning 15 (2001).Google Scholar

16 This must not be confused with the issue of different authorizations for interventions in constitutional rights serving different purposes. There are norms that serve, e.g., preservation of evidence, protection of criminal proceeding, or protection of the enforcement. Furthermore, there are even norms which allow averting dangers, e.g., the arrest ground “danger of recurrence” (Wiederholungsgefahr) in § 112a para. 1 StPO. In contrast, the following paragraph deals with the issue, which proposes one and the same norm serve inside and outside of criminal proceedings.Google Scholar

17 See Grunst, Bettina, Prozeßhandlungen im Strafprozeß 97 (2002); Dencker, Friedrich, Verwertungsverbote im Strafprozeß 23 (1977). Different from this point of view attributes Werner Niese in his book Doppelfunktionelle Prozeßhandlungen (1950) several functions to the measures (not to the norms). However, the norm, not the measure by itself, fulfills, as mentioned above, specific functions. The constable, e.g., does not search a house in order to fulfill elements of § 123 StGB, but rather to secure evidence.Google Scholar

18 However, the distinction between constitutive rules and regulative rules does not draw the line between substantive and procedural law. Here, it might be sufficient to say that norms of the StPO work in the context of procedural law as well as substantive law, see Sec. C. I. Beyond this, it seems unnecessary to think about such a bright-line between procedural and substantive law.Google Scholar

19 See Amelung, Knut, supra, note 5, 332.Google Scholar

20 Id., at 332. Actually, an act of state is generally granted such a leap of faith by the German public law. Other examples are Verwaltungsakte (administrative acts) or formelle Gesetze (statutes).Google Scholar

21 § 337, para. 1 StPO has the following wording: “An appeal on law may only be filed on the ground that the judgment was based upon a violation of the law.”Google Scholar

22 § 338 StPO begins with the following section: “A judgment shall always be considered to be based on a violation of the law: …”Google Scholar

23 § 102 StPO has the following wording: “A body search, a search of the property and of the private and other premises of a person who, as a perpetrator or as an inciter or accessory before the fact, is suspected of committing a criminal offense, or is suspected of accessoryship after the fact or of obstruction of justice or of handling stolen goods, may be made for the purpose of his apprehension and in the cases where it may be presumed that the search will lead to the discovery of evidence.”Google Scholar

24 § 105, para. 1 StPO has the following wording: “Searches shall be ordered by the judge only and, in exigent circumstances, also by the public prosecution office and officials assisting it (§ 152, Courts Constitution Act). Searches pursuant to § 103 para. 1, second sentence, shall be ordered by the judge; the public prosecution office shall be authorized to order searches in exigent circumstances.”Google Scholar

25 See Knut Amelung, supra, note 5, 335.Google Scholar

26 Art. 13, para. 2 GG has the following wording: “Searches may be authorized only by a judge or, when time is of the essence, by other authorities designated by the laws, and may be carried out only in the manner therein prescribed.”Google Scholar

27 § 258, para. 1 StPO has the following wording: “After the taking of evidence has been concluded, the public prosecutor and subsequently the defendant shall be given the opportunity to present their arguments and to file applications.”Google Scholar

28 Art. 103, para. 1 GG has the following wording: “In the courts every person shall be entitled to a hearing in accordance with law.”Google Scholar

29 Nevertheless, note the characteristics of constitutional rules in context of criminal proceeding (Sec. C. II., supra).Google Scholar

30 The unconstitutionality is, of course, not a sanction in a literal sense, see, supra, note 8.Google Scholar

31 See for further information Knut Amelung, Prinzipien der strafprozessualen Verwertungsverbote, in Gedächtnisschrift für Ellen Schlüchter 417 (Duttge et al., eds., 2002).Google Scholar

32 Sec. B., supra.Google Scholar

33 Sec. C. III., supra.Google Scholar

34 See Denninger, Erhard, in Handbuch des Staatsrechts vol. 5 § 113, annotation 8 (Josef Isensee & Paul Kirchhof eds., 1992); see also Martin Böse, Wirtschaftsaufsicht und Strafverfahren 39 (2005) and in context of administrative law, see Daniel Bergner, Grundrechtsschutz durch Verfahren 109 (1998).Google Scholar

35 For an approach in this direction, see Burhoff, Detlef, Durchsuchung und Beschlagnahme – Bestandsaufnahme zur obergerichtlichen Rechtsprechung, Strafverteidiger Forum 140 (2005), similarly, for arbitrary violations of constitutional rights, see Ulrich Schroth, Beweisverwertungsverbote im Strafverfahren – Überblick, Strukturen und Thesen, Juristische Schulung 969, 976 (1998).Google Scholar

36 For the specific procedural consequences, see Knut Amelung & Matthias Mittag, Beweislastumkehr bei Haussuchungen ohne richterliche Anordnung gemäß § 105 StPO, Neue Zeitschrift für Strafrecht 614 (2005).Google Scholar