Max Planck Institute for Foreign and International Criminal Law

In times of advancing globalization, people from different countries and cultures encounter one another more and more frequently. In the process, differing assessments of human behavior become apparent, knowledge of which is not only of academic but also of practical significance.

The concept "honor" applies to an area in which differing ideas often coexist. Honor and the violation thereof can play a role in numerous areas: in the context of offenses that involve insults; incurred or feared violations of honor as a motive for committing a crime; in the context of the criminal process; and in sentencing. There is almost no comparative legal research on the role of honor in the criminal law of the countries of origin of the major foreign populations in Germany, namely, Turkey, the successor countries of the former Yugoslavia, Italy, and Spain. Relevant research on more distant cultures, such as the East Asian, is completely lacking.

The purpose of this project is to ascertain how other legal systems view the role of honor in their criminal law. In the process, information about the differing emphases placed on honor and the violation thereof in various societies is expected that will lead not only to new academic insights but also to the promotion of mutual understanding among these societies.

In this project, a total of 13 country reports were prepared – mostly by external staff – on the following countries: Australia, Brazil, Croatia, France, Germany, Israel, Italy, Japan, Norway, Poland, Spain, Turkey, and the USA. An overview of honor killing in the countries of the Near East was also included. On the basis of these reports, a cross-sectional comparative legal analysis was prepared.

Whereas on the whole the protection of honor is weak in common law countries, including the USA, a detailed instrumentality for the protection of honor exists in continental European law – even if it is increasingly asserted through civil and media law. The German system, with its threefold division into insult (Beleidigung), malicious gossip (üble Nachrede), and defamation (Verleumdung), is rather the exception. A dichotomous system consisting of Beleidigung and üble Nachrede is more typical. In most countries, knowledge of the falsehood of an asserted matter – the essential element of Verleumdung in German law – plays a role only in the determination of sentence. In many countries, it is the imputation to another of a defamatory or otherwise negative fact that is the decisive element of üble Nachrede, while the characteristic element of Beleidigung is the disparaging value judgment. A different approach can be found, for example, in Italian law: there, a finding of üble Nachrede depends on the number of persons the offender involves when violating the honor of a third party. Protection of the deceased and of legal entities also varies. As far as content is concerned, the categories that are viewed as a violation of honor are largely similar: the claim a crime was committed, a wrongful or indecent action engaged in, or a duty culpably left unfulfilled. How these elements are, in fact, to be satisfied strongly depends on each individual country and its prevalent social conditions.

Honor killings occur not only in the Near East and Turkey but also among immigrants in countries such as Germany and Sweden. In the Near East, the sentences of offenders who have committed such crimes are mitigated considerably, even today. In none of the other countries participating in this study is a mitigated punishment for such an offender accepted, even if the legal instrumentality would permit it.

In criminal procedure, the regulations that can be regarded as protective of honor are relatively similar. Some stem from the presumption of innocence; others protect the privacy of defendants or witnesses. Aside from special cases where the publication of the judgment is possible, punishments with a (potentially) shaming effect are no longer imposed – with one exception: in the USA, so-called "shaming sanctions" are being imposed more and more frequently.

Country Reporters

Australia: Dr. Greg Taylor; Brazil: Fauzi Hassan Choukr; Germany: Dr. Thomas Winter; France: Dr. Xavier Pin (country report in French); Israel: Dr. Khalid Ghanayim; Italy: Prof. Dr. Giulio de Simone, Stefano de Francesco; Japan: Prof. Dr. Mitsumasa Matsuo; Croatia: Dr. Igor Bojanić; Norway: Bjørnar Bornik (country report in English); Poland: Dr. Ewa Weigend, Prof. Dr. Eleonora Zielińska; Spain: Prof. Dr. Enrique Bacigalupo, Teresa Manso Porto; Turkey: Dr. Silvia Tellenbach; USA: Prof. Dr. Camille Nelson (country report in English).