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The Dual Penal State - The Crisis of Criminal Law in Comparative-Historical Perspective (Paperback)
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The Dual Penal State - The Crisis of Criminal Law in Comparative-Historical Perspective (Paperback)
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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.
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