A.  Introduction

The system of German criminal law is the product of a centuries-long project of scientific discovery undertaken by scholars who traditionally have defined the science of criminal law (Strafrechtswissenschaft) in contradistinction to the markedly unscientific business of criminal justice policy (Kriminalpolitik).  Insular and formalistic by design, the resulting highly differentiated taxonomy of doctrinal categories can claim only a loose connection to rules of positive law as codified in the general part of the German Criminal Code and instead derives more directly from scientific inquiries into the ontology of crime dating back to the early decades of the twentieth century. 

While this approach to law may strike Anglo-American observers as foreign, perhaps even as anachronistic, some features of German criminal law theory have attracted considerable attention among Anglo-American criminal law scholars, most notably the German system for the analysis of criminal liability, or “criminal offense system” (Straftatsystem).  The Straftatsystem distinguishes between three levels of inquiry:  satisfaction of all offense elements as defined in the statute (Tatbestandsmäßigkeit), wrongfulness (Rechtswidrigkeit), and culpability (Schuld).  This general analytic system applies to all questions of criminal liability, no matter what the offense.  Underlying it is the notion that there is such a thing as a general part of criminal law – and of a criminal code – that contains the general principles of criminal liability governing all offenses defined in the criminal law’s – and the criminal code’s – special part. 

Traditionally Anglo-American criminal law has broadly distinguished between elements of an offense (actus reus and mens rea), on one hand, and defenses, on the other, even if the question of what exactly counts as an offense element and what does not is often open to debate.  (E.g., does mistake negate an offense element or does it constitute a separate defense?  Is non-consent an offense element that is negated by consent or is consent a separate defense?)  The German scheme, however, insists on a...