Grace (law)

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In jurisprudence, grace is the power to wholly or partially remit a legally recognized penalty in individual cases, to commute it or to suspend its enforcement. According to its structure, the right of grace is the competence to dispose of the state criminal claim in an individual case. On the other hand, an amnesty regularly affects a large number of people and is based on the law. However, grace and amnesty have in common that they only affect the sanction imposed , without the person concerned being apologized .

In the secular state, the validity ground for grace, which is not linked to a religious concept , is human dignity , as it is anchored in Article 1, Paragraph 1 of the Basic Law.

Language history

The German word grace is derived from Old High German  ginada and Middle High German  genade . In terms of linguistic history, it is related to the Germanic stem neth , the Indo-European * net and the ancient Indian nath , which means something like 'to ask for help'.

European legal history

Roman antiquity

In the Roman Empire at the beginning of the principate, the strict, inflexible nature of law ( rigor juris ) prevailed . A pardon was not provided - at least during peacetime. With Ulpian, the lawyers' trust in the efficiency of the rigor juris gave way to a more critical point of view that emphasized freedom. With it, the pardon developed in the form of a procedural option, through which above all restoration to the previous status could be granted. In contrast to the rigor iuris, grace was assigned to another facet of law, namely equity or aequitas .

middle Ages

In medieval canon law, grace was an essential part of the ecclesiastical penal procedure and is still an internal legal part of the Codex Iuris Canonici , which in the first part of the sixth book contains its own title for the pardon ( dispensation ). In addition, the doctrine of grace, which was aimed at regaining the divine grace forfeited through sin, is a central theme of Christian theology.

In secular law, too, a criminal judge could determine through a first judgment whether he wanted to continue the proceedings according to law or according to grace . In the latter case, he was free to refrain from imposing penalties or to impose sanctions (“judging by grace” or “judging by grace”). With the centralization of political rule and the separation of powers between legislation and jurisprudence, the principle that the right to pardon can only be granted to the sovereign will prevail.

In the world court games of the Middle Ages, the principle "grace before justice" is illustrated. Often, however, the right is valued with the argument that grace has priority in cases of hardship. Up to the theater of the Renaissance , reflexes of this argument can be seen in Shakespeare's The Merchant of Venice , 1605.

absolutism

The assignment of the privilege of grace as the right of majesty was justified with the princely sovereignty and the divine right of grace , of which it was a self-evident expression, and a duty of care of the sovereign derived from natural law for his subjects. The courts only had the right to appeal and retrial. The combination of powers of rule and pardon in a sovereign above the law led to the saying that grace takes precedence over law. One example is the decision of Frederick the Great in the Müller-Arnold case .

Emancipation aspirations turned against this idea of grace, of the peasant wars until the French Revolution . As a result, the guaranteed right becomes more attractive than the dependence on government grace. The Enlightenment rejected the idea of ​​grace as an expression of arbitrariness and lawlessness. David Hume took a famous enlightenment point of view towards the middle of the 18th century .

Modern times

In the course of this development, the pardon in the general land law for the Prussian states and in all constitutions of the German states of the 19th century as well as in the Bismarck Empire constitution of 1871 as prerogative of the monarch was preserved, but legally regulated. With the change in social conditions and with the development of a judicial authority that was otherwise separate from state authority and independent of the ruler, the pardon, in addition to its original meaning, also acquired the meaning of a means to compensate for the hardship of the criminal law and to justify doubts about the correctness of the criminal court decisions to be able to. Nevertheless, the monarch's right to pardon was still a reflection of the charismatic spirit: the monarch also exercised his right to pardon on the occasion of special events in the ruling family or on other occasions related to his person, such as the individual pardon of 24,000 civilians by Kaiser Wilhelm II . the occasion of his 25th jubilee.

20th century

According to Article 49, Paragraph 1 of the Weimar Constitution (WRV), the Reich President exercised the right of pardon for the Reich. He was directly elected by the German people and was democratically legitimized (Art. 41 Para. 1 WRV).

After the death of Paul von Hindenburg to let Adolf Hitler with referendum to merge the offices of of 19 August 1934 by the German population Chancellor and the Reich President on his person as a leader and Chancellor confirm. With the Führer decree of February 1, 1935, the right of grace in criminal and official matters was transferred primarily to the Reich Ministry of Justice . However, Hitler reserved the decision on exercising the right to pardon in the event of death sentences or high treason and treason as well as other individual cases. From 1943 onwards, the chances of those sentenced to death, which were already very slim, were almost zero. Since the decision of the Greater German Reichstag on April 26, 1942 , Hitler was also the “supreme court lord” and determined all (legal) questions without restriction and as the sole authority.

In the Basic Law of 1949, the power to pardon is regulated by law ( Art. 60 (2) and (3) GG, § 452 StPO ), without the pardon decision having lost its peculiarity as a non-justiciable corrective of legal decisions by extra-legal means. It is subsidiary to the benefits regulated by law, such as exemption from detention , suspension on probation or retrial in favor of the convicted person.

Often associated with the concept of grace are privileges or disadvantages associated with one's own ancestry, which can not be influenced - especially since the 19th century, when they were increasingly questioned. The associated relief from responsibility still appears in more modern concepts such as the “ grace of late birth ”.

The prisoner ransom of political prisoners from the GDR by the Federal Republic of Germany was legalistic in part a parole, in part, a pardon of individual prisoners ahead. Citizens with West German citizenship were considered foreigners in the GDR and were usually expelled.

The former chancellor secretary and GDR spy sentenced to 13 years in prison, Günter Guillaume , was pardoned by Federal President Karl Carstens in 1981 after more than seven years in prison .

literature

  • Dimitri Dimoulis: The pardon in a comparative perspective. Legal philosophical, constitutional and criminal law problems. Duncker & Humblot, 1996.
  • Kurt Andermann (ed.): “Robber barons” or “righteous people from the nobility”? Aspects of Politics, Peace and Law in the Late Middle Ages. Thorbecke, Sigmaringen 1997.
  • Dieter Trauden: mercy before justice? Investigations into the German-language world court games of the Middle Ages. Rodopi, Amsterdam 2000.
  • Hartmut Fischer: Legitimation of “grace” and “amnesty” in the rule of law. Neue Kriminalpolitik 2001, pp. 21-25.

Web links

Wikiquote: Grace  - Quotes

Remarks

  1. ^ Christian Waldhoff: pardon in: Staatslexikon, ed. by the Görres-Gesellschaft , Herder-Verlag, October 22, 2019.
  2. ↑ Sebastian Schwab: Rethinking grace. The concept of grace under the German Basic Law. Max Planck Institute for Social Anthropology , Working Paper No. 186, 2007.
  3. ↑ Johann Christoph Adelung : Grammatical-critical dictionary of the high German dialect. Volume 2, pp. 736-738 ( Digitale-sammlungen.de ).
  4. ↑ grace. In: Jacob Grimm , Wilhelm Grimm (Hrsg.): German dictionary . tape 8 : Glibber – Gräzist - (IV, 1st section, part 5). S. Hirzel, Leipzig 1958, Sp. 505-560 ( woerterbuchnetz.de ).
  5. ↑ Mommsen, Roman Criminal Law. In: Binding (Hrsg.): Systematic Handbook of German Law, 1899, 1st book, 3rd section, p. 32, fn. 1; von Mayenburg, pardon from a legal historical perspective. In: Waldhoff (Hrsg.): Grace before law - law through grace? 2014, p. 33 (49)
  6. ↑ cf. Ulpian D.40.5.24.10: […] nec enim ignotum est, quod multa contra iuris rigorem pro libertate sint constitula .
  7. ↑ cf. Corpus Iuris Civilis , Book IX, Title 51 of the Codex Iustinianus, which regulated restitution to the previous state (de sententiam passis et restitutis, translated: By the condemned and reassigned to the previous state); see. Otto / Schilling / Sintenis (eds.), Das Corpus Juris Civilis, 6th volume, 1832, p. 404ff.
  8. ↑ cf. Dispensation Brockhaus Bilder-Conversations-Lexikon, Volume 1. Leipzig 1837, p. 574. zeno.org, accessed on May 14, 2020.
  9. ↑ cf. Federal Constitutional Court, decision of 23 April 1969 to 2 BvR 552/63 paragraph. 29
  10. ↑ Dieter Trauden: Mercy Before Right? Investigations into the German-language world court games of the Middle Ages . Rodopi, Amsterdam 2000.
  11. ↑ Schepper, Privileg and Gratia in the Burgundian-Habsburg Netherlands, 1400– 1621. A historical-theoretical consideration in: Dölemeyer / Mohnhaupt (Ed.): The Privilege in European Comparison, Volume 2, 1999, p. 225 (232f.)
  12. ↑ Dombois, right of grace. In: Karrenberg (Ed.): Evangelisches Soziallexikon ,. 5th edition. 1965, col. 533.
  13. ↑ See for example Robert J. Fogelin: Defense of 'Hume on Miracles'. University Press, Princeton 2003.
  14. ↑ cf. v. Hippel, German Criminal Law, 1930, Volume II, p. 574.
  15. ↑ Decree of the Führer and Reich Chancellor on the exercise of the right of grace of February 1, 1935, RGBl, p. 74.
  16. ^ Sarah Schädler: 'Judicial Crisis' and 'Judicial Reform' in National Socialism. The Reich Ministry of Justice under Reich Minister of Justice Thierack (1942–1945), Mohr Siebeck, 2009, p. 322.
  17. ↑ cf. Sandra Wiontzek: Handling and effects of the right of grace. Criminal Law in Research and Practice, Volume 123. Hamburg, 2008, ISBN 978-3-8300-3501-5 .
  18. ↑ cf. BVerfG, decision of April 23, 1969 - 2 BvR 552/63
  19. ^ Natalie Blaich: System and constitutional design of the right of grace. Univ.-Diss., 2012, p. 109 f.
  20. ↑ cf. Detlev W. Belling : The constitutionalization of the right to pardon 5. The legal development in the GDR, pp. 81 ff, 89 ff., 99 ff.
  21. ↑ Guillaume: Who was the villain? Der Spiegel , December 26, 1988.
  22. ↑ Stramme List Der Spiegel , October 5, 1981.