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.

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.