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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: 29 November 2021

America’s Internal Penal Exceptionalism

America’s Internal Penal Exceptionalism

(p.177) 5 America’s Internal Penal Exceptionalism
The Dual Penal State

Markus D. Dubber

Oxford University Press

Part III of Dual Penal State uses dual penal state analysis to generate a comparative-historical account of American penality. With comparative glimpses at Germany and, to a lesser extent, England, it distinguishes between two responses to the shared challenge of legitimating state penal power in a modern liberal democratic state: (1) the failure to appreciate the legitimatory challenge of modern state penal power in particular (United States) and of modern state power in general (England); and (2) the failure to address the legitimatory challenge of modern state penal power as an ongoing existential threat to the legitimacy of the state (Germany). Chapter 5 differentiates between external and internal American penal exceptionalism. External exceptionalism focuses on the comparative harshness of American state punishment compared to other countries’ criminal justice systems. Internal exceptionalism, by contrast, highlights the exceptional status of state penal power within the American legal-political project.

Keywords:   Criminal law, punishment, state power, liberalism, police power, rule of law, Rechtsstaat, legal history, comparative law, police, police power, law state, police state, dual penal state, dualistic analysis, legal history, longue durée, Thomas Jefferson, Model Penal Code, war on crime, war on terror, overcriminalization, mass incarceration

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