The project describes changes in the practice of criminal defense in their societal context. Building on this is a discussion of the theoretical prerequisites for a criminal defense practice based on critical legal and critical state systems theory.
Department: Criminal Law (Prof. Sieber) Status of project: Ongoing Research focuses: Functional limits of criminal law and new forms of social control Project duration: Project start: 2013
Project end: 2018
In Germany, the practice of criminal defense is once again an increasingly popular topic of basic research. In this context, important questions concerning general changes in criminal defense arise. Ultimately, three fundamental changes can be identified as historical trends that have been particularly apparent since the 1970s.
First, changes in the essence of criminal defense, which consists in the securing and guaranteeing of the freedom of the practice of law as a fundamental achievement of the free and democratic Rechtsstaat. Although this essence has in fact become self-evident, it continues to be the subject of serious threats. Thus, it is necessary to emphasize that for defense attorneys everything is permissible that is not prohibited by law. Second, the ever-increasing professionalization of law, illustrated, for example, by the advent of legal subspecialties. Mastery of the growing internationalization and Europeanization of criminal law and criminal procedure is possible only with a high degree of professionalism and thus presents formidable challenges to criminal defense practitioners. Third, a change in function that has taken place since the 1970s. The prevailing “classical” practice of criminal defense as it existed prior to the 1970s has since been incrementally replaced by a “modern,” “flexible,” and “globalized” practice. This development is the result of a number of influences, including (criminal) policy as well as socio-economic, media-related, and digital factors. Effects of these factors can be seen in the transformation of the substantive and procedural environment. Metaphorical descriptions of these conditions include “harmonization and business-like conduct instead of confrontational defense.” “Modern” defense attorneys are active in a broad range of areas – some old and familiar, some completely new, and some that combine the old and the new – and take on divergent roles. The “new archetype” of conflict-friendly, conflict-seeking defense attorney that developed parallel to the RAF case in the 1970s seems more and more fragile.
The finding that changes in the practice of criminal defense reflect changes in the relationships among culture, power and economy, social division of labor, and mediation is associated with a historio-legal perspective and linked to a sociological approach to research on professionalization. The concrete historical conditions, in turn, determine which defense attorneys satisfy these conditions. The assumption that societal conditions must be evaluated critically gives rise to the task of defining in more detail the archetype of a discriminating defense attorney capable of solving present and future challenges. In addition, the relationship between criminal defense and legal criticism within the scope of critical systems theory must be examined.
Findings of the project include the following fundamental characteristics of a critical system of criminal defense:
1. Criminal defense is critique of the state. This follows from the emancipatory ideal of critical systems theory as “the stabilization of normative resistance in praxi” (Fischer-Lescano).
2. Criminal defense is representation of the interests of the client. This is where its emancipatory, resistant aspect is particularly apparent, expressed through effective, zealous advocacy for the legal concerns of the client, not least in clashes with judicial institutions.
These two characteristics of a critical system of criminal defense are as yet most effectively described in the image of the attorney as a “legal advocate and social counterweight” (“Rechtshelfer sozialer Gegenmacht,” Holtfort).
Results to date have been presented during the relevant time period in six separate publications (most recently Arnold, ZIS 2017, 621–628). A comprehensive publication will complete the project. The project “European Criminal Defense – Counsel for the Defense in Transnational European Criminal Proceedings" was completed in 2015. The projects supplement one another.