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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

Law and Police as Modes of Governance

Law and Police as Modes of Governance

(p.99) 3 Law and Police as Modes of Governance
The Dual Penal State

Markus D. Dubber

Oxford University Press

Part I of Dual Penal State investigated various ways in which criminal law doctrine and scholarship (or “science”) have failed to address the challenge of legitimating penal power in a modern liberal democratic state. Part II explores an alternative approach to criminal law discourse that puts the legitimacy challenge of modern penal law front and center: critical analysis of criminal law in a dual penal state. Dual penal state analysis differentiates between penal law and penal police, two conceptions of penal power, and state power more generally, rooted in autonomy, equality, and interpersonal respect, on one hand, and in heteronomy, hierarchy, and patriarchal power, on the other. Chapter 3 introduces the distinction between law and police as fundamental modes of governance rooted in the beginnings of Western political history, the Greek city-state and its distinctions between (public) agora and (private) oikos, and between (subject) oikonomikos and (object) oikos.

Keywords:   criminal law, punishment, liberalism, police power, rule of law, Rechtsstaat, law state, police state, dual penal state, longue durée

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