Polizei-Recht-Strafrecht (FS Lüderssen 2002)

This chapter is about a way of thinking about criminal process, with bits and pieces of criminal process making an appearance for illustrative purposes. Actually, it's about two ways of thinking about criminal process, from parallel perspectives that correspond to two modes of state governance, law and police, characteristic of the law state (Rechtsstaat) and the police state (Polizeistaat), respectively. Using comparative-historical analysis, this chapter, locates the study of criminal process within the two-track project of critical analysis of penal power in the modern liberal state as penal law and penal police: the dual penal state. Illustrations include lay participation, plea bargaining, the legality principle, habeas corpus, and possession offenses, among others.

TOA-MAGAZIN, 2018

This is the English and German translation of the article published in the German Restorative Justice Journal TOA-MAGAZIN on 3rd December 2018. The paper provides a friendly but critical account of Geoffroy De Lagasnerie (2018) Judge and Punish: The Penal State on Trial from an abolitionist perspective.

The Dual Penal State addresses one of today's most pressing social and political issues: the rampant, at best haphazard, and ever-expanding use of penal power by states ostensibly committed to the enlightenment-based legal-political project of Western liberal democracy. Penal regimes in these states operate in a wide field of ill-considered and barely constrained violence where radical and prolonged interference with citizens, upon whose autonomy the legitimacy of state power supposedly rests, has been utterly normalized. At its heart, the crisis of modern penality is a crisis of the liberal project itself and the penal paradox is the sharpest formulation of the general paradox of power in a liberal state: the legitimacy of state sovereignty in the name of personal autonomy. To capture the depth and range of the crisis of contemporary penality in ostensibly liberal states, The Dual Penal State adopts a fresh approach. It uses historical and comparative analysis to reveal the fundamental distinction between two conceptions of penal power - penal law and penal police - that runs through Western legal-political history: one rooted in autonomy, equality, and interpersonal respect, and the other in heteronomy, hierarchy, and patriarchal power. This dual penal state analysis illuminates how the law/police distinction manifests itself in various penal systems, from the American war on crime to the ahistorical methods of German criminal law science.

The Journal of Human Justice, 1994

Cet article constitue une proposition thdorique et mdthodologique afin d'dtudier les conditions menant r ia mise en oeuvre du droit et, plus particuli~rement, au ddclenchement du processus pdnal dans des situations concretes. En utilisant de nombreux travaux empiriques et thdoriques, les auteurs ont privildgid trois dimensions analytiques. Premi~rement, les ddterminants susceptibles d" affecter la raise en oeuvre du syst~me pg, nal seront examindes. En deuxi~ne lieu, une attention partieuli~rement sera accordde ~ l'identitd des renvoyants. Enfin, les motifs r I' origine de la ddcision de renvoyer une affaire vers le syst~me pdnal seront discutds. The study of law can be approached in various ways. First, in the classical perspective of legal studies, the study of law is normative and deductive. Analysis of the principles and foundations of the law and of punishment is intended to guide the legislative process and try to (re)construct the law in accordance with the principles. Opposed to this view is a more analytical and inductive approach, such as is dominant in the social sciences: contrary to the doctrinaire concept of the law, the law is seen as a social product. Hence, the criminal law can be the subject of analyses like any other social product. This first difference between the internal and external points of view in the study of law (Carbonnier 1978) is only one of several different approaches. Numerous distinctions can be made in social scientific analyses of the criminal law. We will retain a distinction here only between those studies examining the creation of the law and those focusing on the application of the law, a distinction that can immediately be likened to that generally established between primary criminalization and secondary criminalization (Laberge and Landreville 1993). For some years now, the studies on the creation of the law have expanded (Galliher 1980; Hagan 1980; Landreville 1990; Robert 1991), now constituting an important corpus of thought on highly diversified subjects, from prostitution to business crime, from juvenile delinquency to pollution (Cardinal 1993; Lascoumes 1985). This essay falls within the category of the second approach, that dealing with the application of the law or secondary criminalization. In other words, we will concentrate on how the penal system is really used. Under this broad heading, there are a great number of diverse studies that explain when, how, and under what conditions the penal law is

2017

Leslie Green begins his book on the authority of the state with the following observations: All modern states claim authority over their citizens, and that is one thing which distinguishes them from bands of robbers. … [T]he state ' s authority … also claims to be supreme … It claims to regulate [people ' s] most vital interests, and to do so with supremacy over all other mechanisms of social control. Sometimes these grandiose claims are hollow. In a society undergoing upheaval they cannot be made effective and quickly become legal fi ctions. Even when they are effective they may be unjustifi ed, for legitimacy is not among the existence conditions for a state. However-and here is the real importance of Weber ' s celebrated argument-a belief in its legitimacy tends to increase its stability and effectiveness. It is therefore a crucial question in what circumstances, if any, such beliefs are justifi ed. 1

If there is a mould and a tool that shaped western juridical modernity, it is difficult not to think of statute law. Concept and ideology, solution and problem at the same time, the statute law/legality builds paths of emancipation, of protection, of promotion, of limitations of rights and values. However, if the juridical project of modernity owes a great deal to the building of the political-ideological primacy of statute law and of the political will, which is at its base, beyond the statute law – title of this volume – instead, intends to raise the issue of the co-presence and integration in penal systems between formal theory of the sources and the actual existence of «grey areas» which contributed to rule (and do they still rule?), for certain aspects, strategic sectors: think, for example, of the construction of crime model fact situations, of the judiciary system, of public prosecution, of police institutions, of jail institutes. Sources of regulation positioned in order to “apply” the statute law in the most remote corners of the executive and “governmental” dimension – circulars, instructions, notes, accepted practices – contribute, considerably, to directly define the policies of law in fundamental spheres of the penal order. The system always starts from the dogma of the principle of legality, however it is as if, along the way, principles and guarantees of primary importance begin losing grip and efficaciousness. This opaque «administrative-isation» of the penal systems therefore seems to deserve deeper reflection.

Criminal Law and the Authority of the State

Leslie Green begins his book on the authority of the state with the following observations: All modern states claim authority over their citizens, and that is one thing which distinguishes them from bands of robbers. … [T]he state ' s authority … also claims to be supreme … It claims to regulate [people ' s] most vital interests, and to do so with supremacy over all other mechanisms of social control. Sometimes these grandiose claims are hollow. In a society undergoing upheaval they cannot be made effective and quickly become legal fi ctions. Even when they are effective they may be unjustifi ed, for legitimacy is not among the existence conditions for a state. However-and here is the real importance of Weber ' s celebrated argument-a belief in its legitimacy tends to increase its stability and effectiveness. It is therefore a crucial question in what circumstances, if any, such beliefs are justifi ed. 1

»I´ll be right back.« These are the words Solon, ruler of Athens, wrote at the top of Athen's first comprehensive positive law. Around 594 B.C.the traditional yet controversial date-he set his laws into writing. And then he left. The citizens had no other choice than to tackle the legal provisions on their own. For Solon had obtained a ten-year break from the Athenians in order to avoid the stampede of people who, when the laws of Solon [were] put into operation […] would come to him every day with praise or censure of them, or with advice to insert something into the documents, or take something out. Very numerous, too, were those who came to him with inquiries and questions about them, urging him to teach and make clear to them the meaning and purpose of each several item. (Plut. Sol. 25.4-5; 1 emphasis A.K.)

Starting from Kant's distinction between private and public reason, the idea is to challenge the meaning of political intervention today, political discourse. What is to be a scholar in the digital age? What are the limits of the law, and how can one speak of an alternative, unsovereign law? What is to resist subjection and build the new? True maturity and freedom cannot be reconciled with blind obedience and docility in the private sphere. Only lives guided by reason in Spinoza's sense can overcome the logics of coercion and consent, both leading into subjection and servitude. Yet, for this, it is necessary to think about the role of contingency and the desire for freedom.