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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 Model Penal Code and the War on Crime

The Model Penal Code and the War on Crime

(p.207) 7 The Model Penal Code and the War on Crime
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 7 brings the narrative of modern American penality up-to-date, following on the heels of the discussion of Jefferson’s Virginia criminal law bill of 1779 in Chapter 6. Chapter 7 focuses on the Model Penal Code of 1962, which was far superior to Jefferson’s draft in every respect but one: it, too, failed to integrate state punishment into the American legal-political project, leaving the penal paradox unaddressed and unresolved to this day.

Keywords:   Criminal law, punishment, dual penal state, legal history, longue durée, Model Penal Code, war on crime, war on terror, overcriminalization, mass incarceration

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