Paper's abstract

Michael Köhler, Criminal Law Between Public and Private
One could raise the critical hypothesis that in the civil society private law cannot be distinguished from public law by their conceptual content but only through their form. The private law of free persons in community or society develop into the systems of distributive, commutative and retributive justice whose legal and general form is public law, whereas constitutional law entails the organisation of the political State. Criminal law concerns the constitutional community in its substantiality, because crime questions the constitutional relationship. For this reason, criminal law is a public law in front of constitutional law - the legal alternative to a return to the state of nature. Thus criminal law is on the one hand strictly necessary. Generally speaking, it could not be replaced with damages, it is therefore only a speciality of police law. On the other hand, it represents a juridical relationship which categorically includes the offender as autonomous element of law. This distinguishes it completely from private revenge which designates as well under the "stately" form - as new retributivism of pure repression - the illegitimacy of the state of nature.

Key Words : crime, public, private, state of nature
t. 41, 1997 : p. 199-206