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The Dual Penal StateThe Crisis of Criminal Law in Comparative-Historical Perspective$
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Markus D. Dubber

Print publication date: 2018

Print ISBN-13: 9780198744290

Published to Oxford Scholarship Online: November 2018

DOI: 10.1093/oso/9780198744290.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 18 January 2022

The Rhetoric of Criminal Law

The Rhetoric of Criminal Law

Sloganism and Other Coping Mechanisms

Chapter:
(p.33) 2 The Rhetoric of Criminal Law
Source:
The Dual Penal State
Author(s):

Markus D. Dubber

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198744290.003.0003

Dual Penal State 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 investigates various ways in which criminal law doctrine and scholarship have managed not to meet the continuing challenge of legitimating state penal power: the violent violation of the autonomy of the very persons upon whose autonomy the legitimacy of state power supposedly rests in a state under the rule of law (Rechtsstaat). Part I focuses primarily on German criminal law, and German criminal law science, with regular comparative glances beyond the German penal system. Chapter 2 highlights several key rhetorical strategies in modern criminal law doctrine that divert attention from the troubling—and possibly irresolvable—paradox of state punishment in a modern liberal democracy.

Keywords:   criminal law science, German criminal law, comparative criminal law, complicity, Tatherrschaft, Rechtsgut, positive general prevention, punishment theory, legal science, criminal law

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