The dual penal empire: Emergency powers and military courts in Palestine/Israel and beyond

2021 ◽  
pp. 146247452110403
Author(s):  
Smadar Ben-Natan
Keyword(s):  
Case Studies ◽  
British Empire ◽  
Criminal Law ◽  
War On Terror ◽  
Penal System ◽  
Political Resistance ◽  
Emergency Powers ◽  
The Us ◽  
Penal State ◽  
Enemy Combatants

This article explores the duality of emergency powers and criminal law in old and new formations of empire. Set against the backdrop of the US “war on terror,” I link discussions around current articulations of empire and the treatment of “enemy combatants,” illuminating new connections between empire, emergency, and “enemy penology.” Focusing on Palestine/Israel, I explore the duality created by emergency powers and criminal law from the late British Empire to contemporary Israel/Palestine as an “imperial formation.” Through a genealogy of emergency legislation, military courts, and two case studies from the 1980s Israel, I show how emergency powers constitute a penal regime that complements ordinary criminal law through prosecutions of racialized enemy populations under a distinct exclusionary and punitive legality. Building on Markus Dubber's Dual Penal State, I demonstrate how the—openly illiberal—dual penal empire (i) suppresses political resistance (insurgency, rebellion, and terrorism) and (ii) institutionalizes enemy penology through emergency statutes and military courts. Thus, in imperial formations, such as Israel and the US—which deny their illiberal features—emergency powers are framed as preventive security and denied as part of the penal system, while enemy penology operates in plain sight.

The Rhetoric of Criminal Law

2018 ◽  
Author(s):  
Markus D. Dubber
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Liberal Democracy ◽  
State Power ◽  
Penal System ◽  
Rhetorical Strategies ◽  
State Punishment ◽  
The Rule Of Law ◽  
Fundamental Challenge ◽  
Penal State

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 first part of the book investigates various ways in which criminal law doctrine and scholarship have managed not to meet the continuing challenge of legitimating state penal power: the violent violation of the autonomy of the very persons upon whose autonomy the legitimacy of state power supposedly rests in a state under the rule of law (Rechtsstaat). Part I focuses primarily on German criminal law, and German criminal law science, with regular comparative glances beyond the German penal system. Chapter 2 highlights several key rhetorical strategies in modern criminal law doctrine that divert attention from the troubling—and possibly irresolvable—paradox of state punishment in a modern liberal democracy.

Engaging Scholarship

2018 ◽  
Author(s):  
Markus D. Dubber
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
State Power ◽  
Penal System ◽  
The Rule Of Law ◽  
Fundamental Challenge ◽  
Penal State

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 first part of the book investigates various ways in which criminal law doctrine and scholarship have managed not to meet the continuing challenge of legitimating state penal power: the violent violation of the autonomy of the very persons upon whose autonomy the legitimacy of state power supposedly rests in a state under the rule of law (Rechtsstaat). Part I focuses primarily on German criminal law, and German criminal law science, with regular comparative glances beyond the German penal system. Chapter 1 explores the failure of a parochial and self-referential conception of criminal law as science to engage with fundamental questions of legitimacy.

War and Terror

2017 ◽  
Author(s):  
Avinash Paliwal
Keyword(s):  
War On Terror ◽  
Global War On Terror ◽  
Military Action ◽  
Global Trend ◽  
The Us ◽  
The World ◽  
Global War

The Taliban’s destruction of the Bamiyan Buddha in March 2001 outraged India (and the world). It killed any scope for conciliation with the Taliban. In this context, the US decision to take military action in Afghanistan after the 9/11 attacks was welcomed by many in India. However, Washington’s decision to undertake such action without UN approval (which came only in December 2001) sparked another round of debate between the partisans and the conciliators. As this chapter shows, the former were enthusiastic about supporting the US in its global war on terror, but the latter advocated caution given Washington’s willingness to partner with Islamabad. Despite the global trend to ‘fight terrorism’, the conciliators were successful in steering India away from getting involved in Afghanistan militarily.

Deterrence and Democracy

2018 ◽  
Author(s):  
Richard A. Falkenrath
Keyword(s):  
War On Terror ◽  
Terrorist Attacks ◽  
Global War On Terror ◽  
Counter Terrorism ◽  
Liberal Democratic ◽  
The Us ◽  
Democratic Societies ◽  
Global War ◽  
Taking Action ◽  
The Given

This chapter examines strategy and deterrence and traces the shift from deterrence by ‘punishment’ to deterrence by ‘denial’ in Washington’s conduct of the Global War on Terror. The former rested on an assumption that the consequences of an action would serve as deterrents. The latter may carry messages of possible consequences, but these are delivered by taking action that removes the capabilities available to opponents – in the given context, the Islamist terrorists challenging the US. Both approaches rest on credibility, but are more complex in the realm of counter-terrorism, where the US authorities have no obvious ‘return to sender’ address and threats to punish have questionable credibility. In this context, denial offers a more realistic way of preventing terrorist attacks. Yet, the advanced means available to the US are deeply ethically problematic in liberal democratic societies. However, there would likely be even bigger questions if governments failed to act.

Thomas Jefferson’s Virginia Criminal Law Bill

2018 ◽  
Author(s):  
Markus D. Dubber
Keyword(s):  
Criminal Law ◽  
Critical Analysis ◽  
Criminal Code ◽  
The State ◽  
Modern State ◽  
Historical Account ◽  
Liberal Democratic ◽  
Democratic State ◽  
Penal State ◽  
State 1

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.

The Dual Penal State

2018 ◽  
Author(s):  
Markus D. Dubber
Keyword(s):  
Criminal Law ◽  
Personal Autonomy ◽  
Wide Field ◽  
Liberal State ◽  
Political Issues ◽  
Penal State ◽  
Penal Law ◽  
War On Crime ◽  
History Of ◽  
Patriarchal Power

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.

Penal Law and Penal Police in the Dual Penal State

2018 ◽  
Author(s):  
Markus D. Dubber
Keyword(s):  
Criminal Law ◽  
Critical Analysis ◽  
The Other ◽  
Liberal Democratic ◽  
Democratic State ◽  
Alternative Approach ◽  
Penal State ◽  
Penal Law ◽  
Patriarchal Power ◽  
Modes Of Governance

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.

Consensus by Schooling and Power: The Indoctrination of the Elites

2018 ◽  
Author(s):  
Louçã Francisco ◽  
Ash Michael
Keyword(s):  
Case Studies ◽  
Chicago School ◽  
Ruling Class ◽  
Government Institutions ◽  
The Us ◽  
History Of ◽  
Hearts And Minds

Chapter 7 describes the origins of the Chicago School and its successful projection into the hearts and minds of the global ruling class. Working chronologically, there is a description of how this program took root in Chicago and how some of its central figures, Friedman and Harberger, undertook a hemispheric campaign to capture both academic and government institutions. A history of the deregulation movement in the US and case studies of Mexico, Chile, Argentina, and Brazil highlight the breadth and depth of the campaign. The chapter closes in Europe where the neoliberal insurgency faced more-developed social states. Its success varied in Britain, France, and Germany.

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