New Legal Science in the Dual Penal State

The first part 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. This, second, part 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 4 applies the distinction between law and police as fundamental modes of governance set out in Chapter 3 to the penal realm and explores the tension between penal law and penal police as constituting the dual penal state.

Dual Penal State: The Crisis of Criminal Law in Comparative-Historical Perspective 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 little constrained violence, where radical and prolonged interference with the autonomy of the very persons upon whose autonomy the legitimacy of state power is supposed to rest has been utterly normalized. At bottom, this crisis of modern penality is a crisis of the liberal project itself; the penal paradox is merely 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, Dual Penal State leaves behind customary temporal and parochial constraints, and turns to historical and comparative analysis instead. This approach reveals a fundamental distinction between two conceptions of penal power, penal law and penal police, that run through Western legal-political history, one rooted in autonomy, equality, and interpersonal respect, and the other in heteronomy, hierarchy, and patriarchal power. Dual penal state analysis illuminates how this distinction manifests itself in the history of the present of various penal systems, from the malign neglect of the American war on crime to the ahistorical self-satisfaction of German criminal law science.

This chapter uses comparative-historical analysis to discuss criminal process in the context of penal power in the modern liberal state as penal law and penal police—the dual penal state. Focusing on Germany and the United States, it considers two ways of thinking about criminal process, from parallel perspectives that correspond to two modes of state governance: law and police. The first is characteristic of the law state (Rechtsstaat) and the second, of the police state (Polizeistaat). The emphasis is on the criminal process that is consistent with the pursuit of the ideal of liberal law to which states that regard themselves—or wish to be regarded by others—as participants in the modern liberal legal-political project are committed.

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.

This paper uses comparative-historical analysis to discuss criminal process in the context of penal power in the modern liberal state as penal law and penal police – the dual penal state. Focusing on Germany and the United States, it considers two ways of thinking about criminal process, from parallel perspectives that correspond to two modes of State governance: law and police. The first is characteristic of the law state (Rechtsstaat) and the second, of the police state (Polizeistaat). The emphasis is on the criminal process that is consistent with the pursuit of the ideal of liberal law to which States that regard themselves – or wish to be regarded by others – as participants in the modern liberal legal-political project are committed.

This essay has two parts: In Part 1, I consider the need for a new approach to the study of law beyond traditional parochial boundaries, explore how one might go about developing such an approach, and outline what such an approach might look like (New Legal Science). The point of the New Legal Science is to bridge the divide between the study of law in common law and civil law countries, marked by the abandonment of the project of legal science in the former and its continued pursuit in the latter, and thereby to facilitate the transformation of law from a parochial into a global discipline. In Part 2, I briefly illustrate this approach by applying it to the study of penal law, as part of a comprehensive critical analysis of state penal power from the perspectives of law and police (the Dual Penal State).

In the following I’m going to deal with a theme which has been frequently debated during recent years, but which I still think important though to discuss nationally as well as internationally. Briefly, it is about the practical requirement for and the theoretical problems involved in studying modern legal systems within new categories of ‘legal science’ which cannot be distinctly defined either as legal-dogmatic in the current sense of the word or as purely sociological, economic or the like(1).

Mediation as a method of conflict resolution also applicable to conflict resulting from an offences is the alternative of legal solution of disputes, a technique shared by various models that promote the use in practice of consensus. This novel plocedure fot conflict resolution (which is however derived from the traditions of the oldest societies) - a consensual one, based on agreement between parties - has been developing most dynamically over the recent decades, and pervaded all branches of the law in most legal systems (H. Jung, T. Marshall). In the specific context of criminal justice, mediation does not necessarily aim at conflict resolution. For this reason, it is defined as a process, where parties to proceedings are offered the possibility to actively participate in resolving issues that result from the offence, and are assisted in so doing by an impartial third person or mediator. Mediation may take a variety of forms (direct or indirect); it may be conducted by professional or lay mediators, under auspices of the law enforcement agencies or by an independent social organization, and the parties to it may include not only the victim and the offender but also their relatives and other supporters as well as representatives of the criminal justice system. As has already been mentioned, the origins of mediation between the offender and his victim date back to the oldest past when all issues related to harm involved in acts that are today treated as offences were adjusted in the course of negotiations by those directly concerned assisted by their families and clans. The offences was seen as a conflict between the victim and the perpetrator, with due consideration to the social context. Once the function of reacting to crime was taken over by the state, the reactions initially resembled the modern rules of civil law. Later on, when crime was interpreted as violation of the order established by the ruler, penal sanctions aimed not only at compensating the victim but also at supporting the authority of the state. Although Nils Christie's picture of the state stealing the conflict is a convincing illustration of this situation, the fact should be borne in mind that the state's taking over of the function of punishing was an immense cultural achievement of its time, especially for those members of the conmunity who were too weak to vindicate their claims (B.-D. Meier). Solutions that provide for specific forms of consensus can also be found in modern legal systems. In the area of mediation between the victim and offender, the practice outpaced theory. It was inspired, among other things, by examples of "community justice'' of non-Western cultures; by the movement on behalf of victims, the progress of victimology, the diversion conception, and abolitionism; by the theory of social peace and conflict resolution and by the conception of reparatory justice. This latter conception deals with most problems posed by the other ones. It is, however, difficult to define, and its essence is difficult to explain, especially if we try to embrace threads important for all the trends on which it bases. Thus in the end, a simpler definition suggested by T. Marshall won general acceptance: "reparatory justice is an approach to crime, oriented on solving the problem, which engages perionally all parties involved in it as well as the community, in active relation to the public sector institutions. It is not a specific activity but a set of ruled that may set the direction of the bulk of actions of all institutions or groups related to crime. Reparatory justice is a process in which all parties involved in a specific offence meet to reach a joint solution of the issue of effects of crime and conclusions for the future". This definition was subsequently modified somewhat by other authors. In particular, it was accepted by an international body - the International Research Network on Reparatory Juvenile Justice in its Leuven Declaration of May 1997 concerning advisability of promoting the reparatory approach to juvenile delinquency. Reparatory justice is discussed as a specific trend, approach, philosophy or even idea; according to most authors, however, it has not yet developed into a consistent theory, although incessant efforts are made towards this aim. The term "reparatory justice'' is attributed to R. Barnett; H. Zehr's contribution is the first general model of that justice as an "alternative paradigm of justice" whose main principles are opposed to those of the traditional retributive justice. Also J. Braithwaite's idea of "reintegrating confusion'' was of importance for the development of the reparatory justice conception. It is associated e.g. with Hirschi's theory of control, Matza's neutralization theory, Luhmann's systemic theory, and also with the traditional penal law theories under which evil has to be compensated by punishment, but compensation involving suffering prohibits a better arrangement of social relartions. Instead, reparatory justice balances the harm involved in crime through action aimed at compensation and “doing good” (Ch. Pelikan, B.D. Meier). M. Wright stresses that this conception largely tallies with the common-sense ideas as to how society should react to crime, supported by appropriate actions, analysis, and studies. Mediation and other restorative reactions are sometimes shown as responses that function instead, parallel or within the traditional justice system. Much speaks, however, for integration of reparatory justice with the criminal justice system. The approach that isolates mediation altogether from criminal justice pays insufficient attention to the danger of inequality of the parties to mediation in the area of efficient execution of their conflicting interests. Thus public interest requires that the course and results of mediation proceedings be supervised. The manner in which reparatory justice may replace repressive one depends first and foremost on the seriousness of crime. It is not in all cases that a purely reparatory reaction should be recommended as sufficient. This is among the frequent arguments of critics of reparatory justice (although even its supporters accept the existence of limits to its application). Skeptics also stress that reparatory justice violates a number of generally accepted rules of procedure, especially that of equality before the law (which, however, could be disputed) and the offender’s procedural rights due to him in criminal proceedings (which is in fact a weakness of reparatory justice, but collisions might be solved by appropriate rules and standards of the reparatory process or e.g. by judicial review of negotiated solutions). The conception of reparatory justice is often explicated through opposition of the basic models of reaction to crime (although faulty in some respects, this method well illustrates the most fundamental features). Reparatory justice is sometimes called the "third path'', an alternative to the (neo-) retributive penal law and the rehabilitation model which proves ineffective, and a fully mature self-standing model (L. Walgrave, I. Aertsen). M. Wright stressed two spccial ideas that distinguish reparatory justice from the traditional criminal justice system. The first of them is that the process itself constitutes an essential element of the reaction, that it is constructive and may even have a therapeutic importance. The other idea is compensation interpreted in a much broader sense - from symbolic actions such as work to those reducing the risk of the offender relapsing into crime. The justification and legitimization of mediation in criminal cases bases not only on new theorietical conceptions. Such justification can also be found in the assumptions of the traditional justice system. This is what B.D. Meier did assuming as his point of departure the penal law system's public function, including in particular that of restoring public order that has been violated through crime, and also that of preventing repeated violations. The traditional systems have always provided for two or three different models of reaction to crime. Prevalent is punishment imposed on the person who has been found guilty. The second model involves imposition of special measures irrespective of the offender's liability (security and preventive measures). The third model, of crucial importance for legitimization of mediation in the criminal justice system, consists in renouncing formal proceedings, e.g. in view of slight social harmfulness of the act, the fact that no public interest is involved in the imposition of penalty, or reasons of general and special prevention. According to T. Marshall, justifications of reparatory justice (fulfilled i.a. through mediation) should be sought in the community nature of the offence and its effects. Explaining the theoretical foundations of mediation between the victim and the offender is a complex task because of the multitude of its sources as well as theories and conceptions quoted, and particularly because of the lack of agreement as to the essence of the usually quoted conception of reparatory justice and as to its treatment as "competitive'' with fespect to traditional justice or (for which interpretation I would like to declare) as that system's highly profitable logical supplementation, improvement and expansion. Also in Poland, the practice of actions involving mediation have outpaced the theory: for several years now, there has been quite a rapid growth in its application in practice. In both spheres, there are many problems and challenges worth taking up. At the same time, expanding the theory is of importance for the practice. Explanation of the ideas, aims and foundations of mediation and of its position with respect to traditional justice is paramount for the institution's reasonable development, evaluation and shaping towards its meeting the expectations.

The Nigerian criminal jurisprudence is a product of colonial legacy. Over the years, outdated provisions of the English received laws had continued to remain intrinsic in our legal system. Provisions on “Idle Person” and “Vagabond” are examples of such laws that the Penal laws in Nigeria had maintained beyond independence. This paper took a look at the provisions of the Plateau State Penal Code Law, 2017 on “Idle Person” and “Vagabond”. The doctrinal research methodology is used, as the history, statutory provisions, and penalty of the offences are x-rayed. A critique of the provision of the penal code law is made and a clarion call made for the abolition of vagrancy laws as it runs contrary with the provisions of Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (As amended).

The article is devoted to classifications of modern legal systems. The relevance of this topic is associated with changes in the legal map of the world. There are also new needs in legal science and legal practice. The author examines various types of modern legal systems. He describes the characteristic features of the typology of legal reality, which acts as a kind of loose classification. A mixed type of legal systems occupies a special place among other types. The importance of typology in legal science and legal education is emphasized. The author describes parameters of classifications of legal systems. He also analyzes individual classifications, describes view of different scholars. During the study, prospects for development of classifications of legal systems were identified. A relationship between comparative jurisprudence and other humanities needs to be considered. The author uses national and foreign legal experience.

Acting in my capacity as secretary general of the International Association of Penal Law (AIdP) and as professor of criminal law at the university of Luxembourg, it is an honour to contribute a welcome note to the establishment of the russian Law Journal. In fact, English language periodicals from russia in the field of comparative law are long overdue in the international legal debate where the reception of russian legal thinking does hardly correspond to the eminent political role that russia is traditionally playing in the world. one of the main reasons for this lamentable gap is simply the language barrier. In penal law – the discipline I represent – internationalisation has been a particularly recent phenomenon. Not only has penal law long been a domestic phenomenon largely communicated in our respective mother tongs. Beyond that, penal law has always been looked at – and defended – as a cornerstone of national sovereignty. that we as penal law scientists have to express our thoughts in a foreign language is, thus, a fairly new experience to all of us. Apart from the pioneers of the AIPd with their genuine interest in legal comparison, the emergence of international criminal justice after the second world war and, then again, after the end of the Cold war, as well as the ongoing process of European integration fueled this development to reach the present level. Against this background, I look at the russian Law Journal not only as a most welcome enrichment of our common legal culture but, moreover, as a long missing link for legal science in Europe, Asia, and the world. I personally had the privilege to experience the vivid and inspiring exchange with russian colleagues on the occasion of the preparatory colloquium of the AIdP titled ‘Information society and Penal Law’ that took place 24–27 April 2013 in Moscow. Not only did this colloquium prompt considerable intellectual gain, but moreover left us with numerous personal friendships as a prosperous platform for future dialogue. I wish this publication all the success that it surely deserves and look forward to many interesting discussions, contributions and insights provided accordingly.

In the article, the authors analyze the genesis of the principles of national civil procedure based on the analysis of Roman law. It is noted that the principles of civil procedure of Ancient Rome laid the foundation for most modern legal systems around the world. The Roman legal tradition, with its complex structures and convincing philosophy, is an important source of knowledge not only for scholars and higher education students, but also for practicing lawyers. The principles of civil procedure in ancient Rome stem from a comprehensive understanding of how the legal system functioned. At the heart of these principles is a complex system designed to uphold justice, promote fairness, and ensure access to the courts for all citizens. In ancient Rome, judicial proceedings were governed by a set of principles that were known primarily from customary practice and later codified in sources of law such as the Corpus Juris Civilis. These principles were intended to balance the scales of justice among the competing interests of various stakeholders, including individual litigants, the state, and society as a whole. Each principle functioned not only as a rule, but also as a reflection of broader societal values encompassing the concepts of fairness, accountability and integrity of the judicial process. In this article, the authors analyze the rule of law, the principle of dispositivity, the principle of competition, the principle of publicity, the principle of transparency, and the principle of justice. Based on a critical analysis of the views of scholars presented in legal science, the authors conclude that it was the Roman civil procedure that became the foundation for the formation of the principles of civil procedure of many modern legal systems, which provide invaluable insights into the nature of justice, formalism and the role of law interpretation. Roman law remains an important topic in legal research, providing fundamental knowledge about the evolution of legal institutions and procedures. It allows modern lawyers to understand the reasons for many modern legal innovations. As legal systems continue to evolve, the principles of civil justice originating in ancient Rome will undoubtedly influence current discussions about justice, equality, and the rule of law.

Dual Penal State is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states. The introduction introduces key notions that frame the discussion throughout the book, including the dual penal state and the concepts of penal law and penal police that constitute it, and the idea of the penal paradox of state punishment in a modern liberal democracy ostensibly grounded in the fundamental commitment to the autonomy of each person as such. The introduction also introduces the comparative-historical approach driving the book’s analysis and lays out the basic argument of the book, divided into three parts.

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.

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 6 undertakes a critical analysis of Jefferson’s 1779 draft of a criminal law bill for the State of Virginia, concluding that it fell well short of a criminal code that reflected the ideals of the American legal-political project as spelled out, for instance, in Jefferson’s Declaration of Independence of 1776.