The Dual Penal State: The Crisis of Criminal Law in Comparative-Historical Perspective

The Dual Penal State 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 barely constrained violence where radical and prolonged interference with citizens, upon whose autonomy the legitimacy of state power supposedly rests, has been utterly normalized. At its heart, the crisis of modern penality is a crisis of the liberal project itself and the penal paradox is 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 the book adopts a fresh approach. It uses historical and comparative analysis to reveal the fundamental distinction between two conceptions of penal power - penal law and penal police - that runs through Western legal-political history: one rooted in autonomy, equality, and interpersonal respect, and the other in heteronomy, hierarchy, and patriarchal power. This dual penal state analysis illuminates how the law/police distinction manifests itself in various penal systems, from the American war on crime to the ahistorical methods of German criminal law science.

About the Author :
Markus D. Dubber, Professor of Law and Director of the Centre for Ethics, University of Toronto Markus D. Dubber is Professor of Law and Director of the Centre for Ethics at the University of Toronto. Much of Markus's scholarship has focused on theoretical, comparative, and historical aspects of criminal law. He has published, as author or editor, twenty books as well as over eighty papers; his work has appeared in English and German, and has been translated into Arabic, Chinese, Italian, Korean, Persian, Portuguese, and Spanish. His publications include The Oxford Handbook of Legal History (with Christopher Tomlins) (2018); Criminal Law: A Comparative Approach (with Tatjana H�rnle) (2014); The Oxford Handbook of Criminal Law (with Tatjana H�rnle) (2014); Foundational Texts in Modern Criminal Law (2014); The New Police Science: The Police Power in Domestic and International Governance (with Mariana Valverde) (2006); The Police Power: Patriarchy and the Foundations of American Government (2005); and Victims in the War on Crime(2002).

Review :
" Compelling reading even for those unfamiliar with penality in Germany and the US. And the fruitfulness of his comparative-historical study commends the critical tools that he employs." -- James Monaghan, Sydney Law Review "The book is a good read not only for legal comparatists or legal historians, but also for the criminal law scholars themselves." -- Kimmo Nuotio, Bergen Journal of Criminal Law and Criminal Justice "Markus Dubber's unparalleled comparative and historical scholarship on criminal law takes readers to the heart of the fundamental tension between the project of building liberal democratic societies and the state's power to punish. The Dual Penal State is essential reading for anyone grappling with how to move forward from the manifest disaster of excessive punishment and mass incarceration in the United States and its imitators around the globe." -- Jonathan Simon, Adrian A. Kragen Professor of Law, Berkeley Law "Markus Dubber illuminates paradoxes of state power and challenges for the project of liberal criminal law. The book must attract the attention of a wide readership across legal systems and legal traditions. The concept of a dual penal state proves a useful instrument to shed a critical light on historical developments in criminal law and criminal law science, both in Germany and the United States." -- Tatjana H�rnle, Professor of Criminal Law, Comparative Criminal Law, and Penal Philosophy, Humboldt University, Berlin "This book is an important summary and development of Dubber's ongoing interrogation of the relationship between police and law. The primary focus of the book is the crisis of liberal penality, which he sees in the prima facie illegality of state penal violence and the continuing failure of liberal criminal law theory adequately to address this. Over the course of his exploration of the development of US and German criminal law, he develops a powerful and wide-ranging, critique of the evasions and diversions of contemporary criminal law theory - and how these evasions contribute to the lack of scrutiny of penal power." -- Lindsay Farmer, Professor of Law, University of Glasgow