The Dual Penal State: American Penality between Law and Police (Pt. 3)

Abstract

This book is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states.

The first part of the book investigated various ways in which criminal law doctrine and scholarship have managed not to meet this continuing struggle to legitimate state action that is so patently illegitimate on its face: the violent violation of the very autonomy of the very persons upon whose autonomy the legitimacy of the state is supposed to rest in a law state, or state under the rule of law. Part 1 focused primarily on German criminal law, and German criminal law science, with regular comparative glances from outside the German penal system.

The second part explored an alternative approach to criminal law discourse — among scholars, practitioners, officials, and “lay” persons — that puts the legitimacy challenge of modern penal law front and center. Part 2 was about a way of thinking, and talking, about criminal law: critical analysis of criminal law in a dual penal state. It set out this approach, and illustrated it by applying it to a range of issues in state penality. The point was to frame questions, to lay out tools for answering them, rather than to provide the answers ready-made. The approach in part 2 was systemic; it focused on the shared ideal and history of states that constitute the modern liberal legal-political project.

The third, and last, part, of the book will use dual penal state analysis to generate a comparative-historical analysis of American penality. With comparative glimpses at Germany and, to a lesser extent, England. it will distinguish 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 (U.S.) and of modern state power in general (England) and (2) the failure to address the legitimatory challenge of modern state penal power as a continuous and comprehensive existential threat to the legitimacy of the state (Germany).

Keywords: criminal law, law, police, critical analysis of law, dual penal state

JEL Classification: K14