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Criminal Process in the Dual Penal State: A Comparative-Historical Analysis

Oxford Handbook of Criminal Process, 2016

19 Pages Posted: 20 Jul 2017  

Markus D. Dubber

University of Toronto - Faculty of Law; University of Toronto - Centre for Ethics

Date Written: July 13, 2017

Abstract

This paper is about a way of thinking about criminal process, with bits and pieces of criminal process making an appearance for illustrative purposes. Actually, it’s about two ways of thinking about criminal process, from parallel perspectives that correspond to two modes of state governance, law and police, characteristic of the law state (Rechtsstaat) and the police state (Polizeistaat), respectively. Using comparative-historical analysis, this chapter, locates the study of criminal process within the two-track project of critical analysis of penal power in the modern liberal state as penal law and penal police: the dual penal state. Illustrations include lay participation, plea bargaining, the legality principle, habeas corpus, and possession offenses, among others.

Suggested Citation

Dubber, Markus D., Criminal Process in the Dual Penal State: A Comparative-Historical Analysis (July 13, 2017). Oxford Handbook of Criminal Process, 2016. Available at SSRN: https://ssrn.com/abstract=3002578

Markus Dubber (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

HOME PAGE: http://www.law.utoronto.ca/faculty-staff/full-time-faculty/markus-dubber

University of Toronto - Centre for Ethics ( email )

6 Hoskin Avenue
Toronto, Ontario M5S 1H8
Canada

HOME PAGE: http://ethics.utoronto.ca

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