Penal Law and Penal Police in the Dual Penal State

2018 ◽  
Author(s):  
Markus D. Dubber
Keyword(s):  
Criminal Law ◽  
Critical Analysis ◽  
The Other ◽  
Liberal Democratic ◽  
Democratic State ◽  
Alternative Approach ◽  
Penal State ◽  
Penal Law ◽  
Patriarchal Power ◽  
Modes Of Governance

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.

Law and Police as Modes of Governance

2018 ◽  
Author(s):  
Markus D. Dubber
Keyword(s):  
Criminal Law ◽  
Greek City ◽  
Liberal Democratic ◽  
Democratic State ◽  
Alternative Approach ◽  
Penal State ◽  
Penal Law ◽  
City State ◽  
Patriarchal Power ◽  
Modes Of Governance

Part I 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. Part II 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 3 introduces the distinction between law and police as fundamental modes of governance rooted in the beginnings of Western political history, the Greek city-state and its distinctions between (public) agora and (private) oikos, and between (subject) oikonomikos and (object) oikos.

Thomas Jefferson’s Virginia Criminal Law Bill

2018 ◽  
Author(s):  
Markus D. Dubber
Keyword(s):  
Criminal Law ◽  
Critical Analysis ◽  
Criminal Code ◽  
The State ◽  
Modern State ◽  
Historical Account ◽  
Liberal Democratic ◽  
Democratic State ◽  
Penal State ◽  
State 1

Part III of Dual Penal State uses dual penal state analysis to generate a comparative-historical account of American penality. With comparative glimpses at Germany and, to a lesser extent, England, it distinguishes between two responses to the shared challenge of legitimating state penal power in a modern liberal democratic state: (1) the failure to appreciate the legitimatory challenge of modern state penal power in particular (United States) and of modern state power in general (England); and (2) the failure to address the legitimatory challenge of modern state penal power as an ongoing existential threat to the legitimacy of the state (Germany). Chapter 6 undertakes a critical analysis of Jefferson’s 1779 draft of a criminal law bill for the State of Virginia, concluding that it fell well short of a criminal code that reflected the ideals of the American legal-political project as spelled out, for instance, in Jefferson’s Declaration of Independence of 1776.

The Dual Penal State

2018 ◽  
Author(s):  
Markus D. Dubber
Keyword(s):  
Criminal Law ◽  
Personal Autonomy ◽  
Wide Field ◽  
Liberal State ◽  
Political Issues ◽  
Penal State ◽  
Penal Law ◽  
War On Crime ◽  
History Of ◽  
Patriarchal Power

Dual Penal State: The Crisis of Criminal Law in Comparative-Historical Perspective addresses one of today’s most pressing social and political issues: the rampant, at best haphazard, and ever-expanding use of penal power by states ostensibly committed to the enlightenment-based legal-political project of Western liberal democracy. Penal regimes in these states operate in a wide field of ill-considered and little constrained violence, where radical and prolonged interference with the autonomy of the very persons upon whose autonomy the legitimacy of state power is supposed to rest has been utterly normalized. At bottom, this crisis of modern penality is a crisis of the liberal project itself; the penal paradox is merely the sharpest formulation of the general paradox of power in a liberal state: the legitimacy of state sovereignty in the name of personal autonomy. To capture the depth and range of the crisis of contemporary penality in ostensibly liberal states, Dual Penal State leaves behind customary temporal and parochial constraints, and turns to historical and comparative analysis instead. This approach reveals a fundamental distinction between two conceptions of penal power, penal law and penal police, that run through Western legal-political history, one rooted in autonomy, equality, and interpersonal respect, and the other in heteronomy, hierarchy, and patriarchal power. Dual penal state analysis illuminates how this distinction manifests itself in the history of the present of various penal systems, from the malign neglect of the American war on crime to the ahistorical self-satisfaction of German criminal law science.

The Model Penal Code and the War on Crime

2018 ◽  
Author(s):  
Markus D. Dubber
Keyword(s):  
Penal Code ◽  
Modern State ◽  
Model Penal Code ◽  
State Punishment ◽  
Liberal Democratic ◽  
Democratic State ◽  
Penal State ◽  
War On Crime ◽  
Integrate State ◽  
State 1

Part III of Dual Penal State uses dual penal state analysis to generate a comparative-historical account of American penality. With comparative glimpses at Germany and, to a lesser extent, England, it distinguishes between two responses to the shared challenge of legitimating state penal power in a modern liberal democratic state: (1) the failure to appreciate the legitimatory challenge of modern state penal power in particular (United States) and of modern state power in general (England); and (2) the failure to address the legitimatory challenge of modern state penal power as an ongoing existential threat to the legitimacy of the state (Germany). Chapter 7 brings the narrative of modern American penality up-to-date, following on the heels of the discussion of Jefferson’s Virginia criminal law bill of 1779 in Chapter 6. Chapter 7 focuses on the Model Penal Code of 1962, which was far superior to Jefferson’s draft in every respect but one: it, too, failed to integrate state punishment into the American legal-political project, leaving the penal paradox unaddressed and unresolved to this day.

scholarly journals Remarks by Sinara Gumieri

2018 ◽  
Vol 112 ◽  
pp. 90-91
Author(s):  
Sinara Gumieri
Keyword(s):  
Criminal Law ◽  
Reproductive Rights ◽  
Critical Perspective ◽  
Expressive Function ◽  
Central Aspect ◽  
Penal State ◽  
Penal Law ◽  
Gender Based ◽  
The Impact ◽  
Sexual And Reproductive Rights

The organizations I work with share a critical perspective toward the use of criminalization even as a response to violations of sexual and reproductive rights. This critical perspective holds, even as we operate in a field, and in political contexts, where the symbolic or expressive function of criminal law is often seen as a central aspect of its role in protecting rights, particularly for women. We have come to this critical perspective through reflection and experience: we see the practice of feminists resorting so often and so strongly to calling for criminalization and more severe penalties for gender-based violations, despite discouraging evidence of the impact of penal law. From this, we conclude that through our invocations to the penal state, we may be losing sight of our work to call out the state's responsibilities to address the root causes of the violations we seek to prevent and address.

America’s Internal Penal Exceptionalism

2018 ◽  
Author(s):  
Markus D. Dubber
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Modern State ◽  
Historical Account ◽  
State Punishment ◽  
Liberal Democratic ◽  
Democratic State ◽  
Criminal Justice Systems ◽  
Penal State ◽  
State 1

Part III of Dual Penal State uses dual penal state analysis to generate a comparative-historical account of American penality. With comparative glimpses at Germany and, to a lesser extent, England, it distinguishes between two responses to the shared challenge of legitimating state penal power in a modern liberal democratic state: (1) the failure to appreciate the legitimatory challenge of modern state penal power in particular (United States) and of modern state power in general (England); and (2) the failure to address the legitimatory challenge of modern state penal power as an ongoing existential threat to the legitimacy of the state (Germany). Chapter 5 differentiates between external and internal American penal exceptionalism. External exceptionalism focuses on the comparative harshness of American state punishment compared to other countries’ criminal justice systems. Internal exceptionalism, by contrast, highlights the exceptional status of state penal power within the American legal-political project.

The Place of Proportionality in Penal Theory

2019 ◽  
pp. 76-96
Author(s):  
Matt Matravers
Keyword(s):  
Public Policy ◽  
Political Theory ◽  
Criminal Law ◽  
Central Feature ◽  
Alternative Account ◽  
Liberal Democratic ◽  
Democratic State ◽  
Crime Seriousness ◽  
Justification Of Punishment

The idea that the severity of punishments ought to be proportionate to the seriousness of crimes is an established and central feature of much of the literature on the justification of punishment of the last several decades. Yet in practice, sentencing is an inexact science, and the project of developing metrics of both penal severity and crime seriousness is burdened by substantial theoretical difficulties. The focus on an individualistic, moralized account of criminal law exacerbates these issues both by making proportionality more central than it needs to be in penal theory and by making the metrics harder to determine. An alternative account can be premised on a view of criminal law and punishment as an institution of public policy addressed to the need to sustain the fragile achievement of the modern liberal democratic state. The questions of metrics and of proportionality appear somewhat differently in such a political theory and in ways that allow us to overcome some of the difficulties that afflict current theorizing about punishment.

scholarly journals Punishing (Non-)Citizens

2016 ◽  
pp. 28-38
Author(s):  
Michał Peno
Keyword(s):  
Civil Society ◽  
Criminal Law ◽  
Criminal Liability ◽  
The State ◽  
Self Control ◽  
Control Mechanisms ◽  
Liberal Democratic ◽  
Democratic State ◽  
Spatial Isolation ◽  
State Of Affairs

If sociologists are to be trusted, reflexivity, focused on itself and devoid of any religious or at least ideological framework, leads to the weakening of control mechanisms. Such changes are accompanied by the polarization of social classes and by the exclusion of the so-called underclass (which certainly includes a vast majority of criminals) from the civil society. In the doctrine of criminal law of “mature modernism”, within the framework of a liberal-democratic state, the civil society, together with the idea of communication, is supposed to constitute a central reference point in the research on criminal liability. Reflexivity brings up new problems. New citizen-oriented criminal law is being shaped, based upon mediation and communication (e.g. restorative justice, Expressive Theory). The civil society does not include the area of politics or political nature of things, where the problem is not the justification of the punishment but the effectiveness of mere spatial isolation. In this sense, it is difficult to talk about the merits of the emancipation of an individual from the limitations imposed by the society. The weakening of any external authority and of political duties owed to the state is replaced by self-control proper to reflexive modernity only in cases where the individuals have adequate intellectual and ethical predispositions. Disappearance of the influence of external rules and values together with the mechanism of exclusion from the civil society results in the weakening of self-control and in selfish care only about one’s own perspective (but also in repressive subordination by the state). Such a state of affairs creates favourable conditions for objectifying criminal liability, abandoning the concept of guilt, and for attempts to provide an ethical justification of penalty – which are concepts taken from the “world of citizens”.

scholarly journals Penalty of Semi-Intentional Killing Offence according to the Egyptian and Algerian Penal Law: An Evaluative Study from the Islamic Viewpoint

2020 ◽  
Vol 31 (4) ◽  
pp. 13-25
Author(s):  
Muhammad Gabr Al-Said Abdu-Allah Gameel
Keyword(s):  
Criminal Law ◽  
Islamic Law ◽  
The Other ◽  
Practical Significance ◽  
Analytical Methodology ◽  
Evaluative Study ◽  
Theoretical Significance ◽  
Penal Law ◽  
Comprehensive Picture ◽  
Blood Money

The study aims at  evaluating  the penalty of  semi- intentional killing felony in the Egyptian and Algerian criminal law following the Islamic Law (Shari'a). The  study used the descriptive, evalutive and analytical  methodology  to  reach the topic in question. To meet the theoretical significance of the study, much data has been collected to give a comprehensive picture about the topic under examination. As for the practical significance of the study, it helps the juridical power to reconsider and phrase the legal materials of the semi-intentional killing penalty based on the Islamic law. The study has come to the conclusions that the Islamic Law (Shari'a) imposes a compensation (blood-money) to be given to the deceased family and an act of expiation as a  penalty against those who proved committed of intentional killing felony. However, the Egyptian Penal Law imposes hard labor/imprisonment as an alternative penalty against this felony. On the other hand, the Algerian Criminal law  imposes imprisonment as an alternative penalty to this felony. Consequently, the penalties prescribed by both Egyptian and Algerian Laws contradict with what Islamic Law (Shari'a) necessitates. The  study  recommended  that  the Egyptian and the Algerian Criminal laws to activate the Islamic law represented by the compensation (blood-money) and act of expiation as a penalty to this crime.

Das neue Strafrecht

2020 ◽  
Vol 103 (3) ◽  
pp. 246-253
Author(s):  
Karl-Ludwig Kunz
Keyword(s):  
Criminal Law ◽  
The Other ◽  
Criminal Prosecution ◽  
Loss Of Control ◽  
Attribution Of Responsibility ◽  
Other Hand ◽  
Penal Law

A new kind of penal law seems to emerge. Since the late 1970s, the idea of prevention has gained importance beyond the discussion of the purpose of a penalty for a specific offence. Penalizing is now understood as a reasonable action to avert prospectively anticipated dangers to society. Informal loss of control and mega-dangers demand more control through criminal law. Alongside technical prevention a striking penal attribution of responsibility is demanded. Thus, punishing becomes potentially excessive because it refers to an imaginary, not precisely assessable threat whose definite neutralization is sought. The search for the most comprehensive precaution possible favors the tendency to expand the scope and to tighten the sanctions of criminal law. On the other hand, the criminal prosecution becomes more flexible through practices of diversion, informal agreements, early and discreet dispositions of proceedings.

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