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The Dual Penal StateThe Crisis of Criminal Law in Comparative-Historical Perspective$
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Markus D. Dubber

Print publication date: 2018

Print ISBN-13: 9780198744290

Published to Oxford Scholarship Online: November 2018

DOI: 10.1093/oso/9780198744290.001.0001

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Penal Law and Penal Police in the Dual Penal State

Penal Law and Penal Police in the Dual Penal State

Chapter:
(p.121) 4 Penal Law and Penal Police in the Dual Penal State
Source:
The Dual Penal State
Author(s):

Markus D. Dubber

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198744290.003.0005

The first part of Dual Penal State investigated various ways in which criminal law doctrine and scholarship (or “science”) have failed to address the challenge of legitimating penal power in a modern liberal democratic state. This, second, part explores an alternative approach to criminal law discourse that puts the legitimacy challenge of modern penal law front and center: critical analysis of criminal law in a dual penal state. Dual penal state analysis differentiates between penal law and penal police, two conceptions of penal power, and state power more generally, rooted in autonomy, equality, and interpersonal respect, on one hand, and in heteronomy, hierarchy, and patriarchal power, on the other. Chapter 4 applies the distinction between law and police as fundamental modes of governance set out in Chapter 3 to the penal realm and explores the tension between penal law and penal police as constituting the dual penal state.

Keywords:   criminal law, punishment, liberalism, police power, rule of law, Rechtsstaat, comparative law, dual penal state, longue durée

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