Foundations of State Punishment in Modern Liberal Democracies: Toward a Genealogy of American Criminal Law
Foundations of State Punishment in Modern Liberal Democracies: Toward a Genealogy of American Criminal Law
This chapter focuses on how we should conceive of the inquiry into the foundations of criminal law, whether legal, philosophical, historical, genealogical, or political. It argues that we cannot hope to develop a foundational account of the criminal law without an account of what, if anything, legitimizes the state power that underlies the criminal law — an inquiry that has mostly escaped the attention of American thinkers both at the time the nation was founded and in the years since. The chapter is organized as follows. Section 1 considers various ways of conceiving of an inquiry into the foundations of criminal law. Section 2 explores the distinction between modes of foundational inquiry by considering the significance of the Rechtsgut principle in German criminal law science, on one hand, and in the jurisprudence of the German Constitutional Court, on the other. Section 3 presents preliminary remarks on an inquiry into the foundations of American criminal law.
Keywords: American criminal law, foundational inquiry, Rechtsgut principle, German criminal law
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