1. Introduction

The body of contemporary criminal law falls into substantial and procedural criminal law. This division is relatively recent and not to be taken absolutely. Even in the German speaking tradition, where it is developed in a rather clear manner, there is a latent interplay between these branches, for the main procedural endeavour of gathering evidence is reflected in substantial law. If substantial law provides too many obstacles to gathering evidence, substantive norms are often eroded by interpretation or amended to ease evidence. In German law, where a substantive offence (“Tatbestand”) is in general designed to secure a specific legal interest (“Rechtsgut”), one finds exceptions of criminal offences that are designed to secure the interest of getting evidence (“Ermittlungstatbestände”), most prominent in the offence of money laundering (“Geldwäsche”, § 261 StGB).

Apart from the far-reaching division between substantive law and procedural law in the German speaking tradition, there are major legal systems where the division is not as strict. In a more procedural perspective, substantive matters are dealt with in a more pragmatic way. Thus, the separation of justification and excuse, a landmark in German criminal law, is less important in this perspective. This may be illustrated by the fact that the French and the Common Law doctrine has been so influential in International and European criminal law.

Legal practitioners almost naturally defend a pragmatic approach.