Before delving into the details of a specific German theory of sentencing, this first section attempts to very briefly outline the general framework of the sentencing process according to German law.
German law is codified law. This means that not only the individual crimes are laid down in the German Criminal Code, but also the general principles concerning sentencing are contained therein. The constitutional basis of the sentencing structure can be drawn from the notion of the Rechtsstaat, which can be translated with the term “rule of law.” This principle, which is laid down in Article 20 § 1 Grundgesetz (German Constitution – GG), encompasses the culpability-principle, under which the punishment must be proportionate to the individual guilt of the offender. Thus, section 46 § I of the Criminal Code (Strafgesetzbuch – StGB) reads: “the guilt of the perpetrator is the foundation for determining punishment.” The culpability-principle is a specific expression of the proportionality principle, which is also a constitutional requirement of the “rule of law.”