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Print Price: $36.50

Format:
Paperback
304 pp.
156 mm x 234 mm

ISBN-13:
9780192897732

Publication date:
February 2021

Imprint: OUP UK

The Dual Penal State

The Crisis of Criminal Law in Comparative-Historical Perspective

Markus D. Dubber

In The Dual Penal State, Markus Dubber addresses the rampant use of penal power in Western liberal democracies. The interference with the autonomy of the very persons upon whose autonomy the legitimacy of state power is supposed to rest is systemically normalized, rather than continuously scrutinized. The fundamental challenge of the penal paradox - the prima facie illegitimacy of modern punishment - remains unaddressed and unresolved.

Focusing on the United States and Germany, and drawing on his influential account of the patriarchal origins of police power, Dubber exposes the persistence of a two-sided criminal justice regime: the dual penal state. The dual penal state combines principled punishment of equals under the rule of law, on one side, with punitive discipline of others under the rule of police, on the other.

Slavery has long played a central role in drawing the line between the two sides of the dual penal state. In Europe, the slave appears in the classic and still foundational accounts of liberal punishment (from Beccaria to Kant) as the paradigmatic other beyond the protection of law, not a legal subject but a mere object of the master's or the state's discretionary discipline. In America, the patriarchal power to police portrays the continuum from the antebellum slaveholder's whipping of his slaves in private and the racial terror perpetrated by slave patrols in public, to the apartheid regime of Jim Crow and the treatment of prisoners as "slaves of the state," and eventually to the late 20th century's systemic racial violence of the "war on crime" and the widespread killing of Black suspects by an increasingly militarized and armed police force that triggered the global Black Lives Matter movement.

Readership : Postgraduate, research & scholarly.

Introduction: The Crisis of the Modern Penal State
PART I: CRIMINAL LAW SCIENCE AND ITS DIVERSIONS
1. Engaging Scholarship: Criminal Law and the Legitimation of Penal Power
2. The Rhetoric of Criminal Law: Sloganism and Other Coping Mechanisms
PART II: THE DUAL PENAL STATE: TOWARD A CRITICAL ANALYSIS OF CRIMINAL LAW
3. Law and Police as Modes of Governance
4. Penal Law and Penal Police in the Dual Penal State
PART III: AMERICAN PENALITY BETWEEN LAW AND POLICE: A CRITICAL GENEALOGY
5. America's Internal Penal Exceptionalism
6. Thomas Jefferson's Virginia Criminal Law Bill
7. The Model Penal Code and the War on Crime

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Markus D. Dubber is Professor of Law and Director of the Centre for Ethics at the University of Toronto. Much of his scholarship has focused on theoretical, comparative, and historical aspects of criminal law. He has published, as author or editor, over twenty books and more than eighty papers; he has been translated into German, Arabic, Chinese, Italian, Korean, Persian, Portuguese, and Spanish. His publications include The Oxford Handbook of Criminal Law (2014), Criminal Law: A Comparative Approach (2016, with Tatjana Hörnle), Foundational Texts in Modern Criminal Law (2014), and The Police Power (2005)

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Special Features

An incisive account of the two sides of the criminal justice regime: principled punishment and punitive discipline.
Explores the 'dual state' dilemma of meting out criminal justice in liberal polities.
Analyses the prima facie illegality of state penal violence and the continuing failure of liberal criminal law theory adequately to address this.