The Dual Penal State

- Project in Progress Page -

Markus Dubber

Table of Contents

0. Preface

1. Introduction

  • A. Overview
    • A Political Theory of Criminal Law: Autonomy and the Legitimacy of State Punishment (download draft)
  • B. Methodology
    • Foundations of State Punishment in Modern Liberal Democracies: Toward a Genealogy of American Criminal Law (download draft)
    • Grounding Criminal Law: Foundational Texts in Comparative-Historical Perspective (download draft)
    • Comparative Criminal Law (download draft)
    • The Promise of German Criminal Law: A Science of Crime and Punishment (download draft)
    • Modern Penality in Interdisciplinary Perspective: Toward a Critical Analysis of the American Penal State (download draft)
    • New Legal Science and the Dual Penal State (download draft)
    • New Historical Jurisprudence: Legal History as Critical Analysis of Law (download paper)
    • Paradigms of Penal Law (download draft)
  • C. Law and Police
    • Perspectives on the Power and Science of Police (with Mariana Valverde) (download draft)
    • Policing the Rechtsstaat (with Mariana Valverde) (download draft)
    • ‘The Power to Govern Men and Things’: Patriarchal Origins of the Police Power in American Law (download draft)
  • D. Penal Law and Penal Police
    • Two Modes of Penality
      • The New Police Science and the Police Power Model of the Criminal Process (download draft)
      • Criminal Police and Criminal Law in the Rechtsstaat (download draft)
      • The Right to Be Punished: Autonomy and Its Demise in Modern Penal Thought (download draft)
    • Related Concepts
  • E. Penal Law as Public Law

2. Preliminary: Foundations and Frameworks

  • A. Constitutional Foundations
    • United States
      • Criminal Justice in America: Constitutionalization Without Foundation (download draft)
      • ‘An Extraordinarily Beautiful Document’: Jefferson’s Bill for Proportioning Crimes and Punishments and the Challenge of Republican Punishment (download draft)
      • Toward a Constitutional Law of Crime and Punishment (download draft)
    • Germany
      • Policing Morality: Constitutional Law and the Criminalization of Incest (download draft)
      • Ultima Ratio as Caveat Dominus: Legal Principles, Police Maxims, and the Critical Analysis of Law (download draft) (in Portuguese)
  • B. Principle of Legality (nulla poena)
    • Domestic Criminal Law
      • The Legality Principle in American and German Criminal Law: An Essay in Comparative Legal History. (download draft)
      • Commonwealth v. Keller: The Irrelevance of the Legality Principle in American Criminal Law (download draft)
    • International Criminal Law
      • Common Civility: The Culture of Alegality in International Criminal Law (download draft)
  • C. Codification
    • The Model Penal Code, Legal Process, and the Alegitimacy of American Penality (download draft)
    • Penal Panopticon: The Idea of a Modern Model Penal Code (download draft)
    • The Historical Analysis of Criminal Codes (download draft)
    • The Model Penal Code and European Criminal Law (download draft)
  • D. Jurisdiction
    • Criminal Jurisdiction and Conceptions of Penality in Comparative Perspective (download draft)

3. General Part: Principles of Liability

  • A. Personhood
  • B. Empathy
  • C. Corporations
    • The Comparative History of Corporate Criminal Liability in German and American Law (download draft) (in German)

4. Special Part: Specific Offenses

  • A. Offense: Substantive and Formal Aspects
    • Rechtsgut
      • Theories of Crime and Punishment in German Criminal Law (download draft)
    • The Possession Paradigm: The Special Part and the Police Power Model of the Criminal Process
      • Policing Possession: The War on Crime and the End of Criminal Law (download draft)
  • B. Offenses
    • Controlled Substances
    • Incest
      • Policing Morality: Constitutional Law and the Criminalization of Incest (download draft
    • Treason
      • The State as Victim: Treason and the Paradox of American Criminal Law (download draft)
    • Terrorism

5. Punishment, Process, Prison

  • Overview
    • Criminal Process in the Dual Penal State: A Comparative-Historical Analysis (download draft)
  • A. Punishment
    • Quality and Quantity
      • Capital punishment, indeterminate sentencing, gross disproportionality
    • Labels: Punishment, treatment, measure, penalty, penance
    • Collateral: Disenfranchisement, forfeiture of citizenship
  • B. Imposition
    • The Criminal Trial and the Legitimation of Punishment (download)
    • Miscarriage of Justice as Misnomer (download)
    • What's Wrong with Wrongful Convictions?
    • American Plea Bargains, Germany Lay Judges, and the Crisis of Criminal Procedure (download paper)
    • The Schizophrenic Jury and Other Palladia of Liberty: A Critical Historical Analysis (download draft)
  • C. Infliction
    • Penal Execution between Police and Law