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This chapter focuses on how we should conceive of the inquiry into the foundations of criminal law, whether legal, philosophical, historical, genealogical, or political. It argues that we cannot hope to develop a foundational account of the criminal law without an account of what, if anything, legitimizes the state power that underlies the criminal law — an inquiry that has mostly escaped the attention of American thinkers both at the time the nation was founded and in the years since. The chapter is organized as follows. Section 1 considers various ways of conceiving of an inquiry into the foundations of criminal law. Section 2 explores the distinction between modes of foundational inquiry by considering the significance of the Rechtsgut principle in German criminal law science, on one hand, and in the jurisprudence of the German Constitutional Court, on the other. Section 3 presents preliminary remarks on an inquiry into the foundations of American criminal law.

This chapter presents an account of the failure of American criminal law to rethink the patriarchal foundations of English criminal law in light of the liberal principles of the Revolution. Despite the Revolution's rights rhetoric, criminal law remained grounded in the state's sovereignty, with the public peace simply replacing the king's peace as the formal object of protection. Police power was the king's (and later the public's) patriarchal power to regulate, in Blackstone's words, “the individuals of the state, like members of a well-governed family.” The king's power to keep the peace in turn traced itself back to the householder's peace of medieval law and, eventually, to the power of the Roman paterfamilias over his familia and the Athenian oikonomikos over his oikos. Prisons, which emerged as the predominant American penal sanction, were organized like households, under the discretionary authority of the warden-householder. Drawing on prisoners' memoirs, among other sources, the chapter evokes the experience of objects of penal police in the early Republic, placing the prison household within a structure of patriarchal government ranging from the family and the plantation, the workplace and the church, the military and the city, to the macro household of the (invisible) American state.

This chapter discusses how current American criminal law often quietly defers to lay judgments of justice. It first considers three sorts of rules common in modern criminal codes that reflect a deference to lay judgments of justice: recognizing excuse defenses; failing to take account of factors relevant to coercive crime-control principles; and creating a false impression that resulting harm is significant by including result elements in offense definitions. It then discusses the vagueness of the standards used in doctrinal formulations and how it reinforces the deference to lay judgments. One plausible explanation for the deference to lay intuitions of justice is that the drafters understood, although they did not make it explicit, that a criminal code could not openly conflict with the community's shared intuitions of justice without losing moral credibility with the community it governs, and that such a loss of credibility would undermine the criminal law's crime-control power.

The chapter examines the causes of the formation of two different penological identities in Europe and the United States and their characteristics, focusing on the distinction between US pragmatism and European doctrinarism. It analyses the foundation of the International Union of Penal Law, the American Institute of Criminal Law and Criminology, the International Prison and Penitentiary Congresses, and other congresses and publications to show how the peno-criminological reform movement was driven by a renewed interest in legal comparison. The chapter also investigates how penal reformers and criminologists such as Liszt, Saleilles, Cuche, Pound, Ferri, and other adherents to the Italian Positivist School made a different use of legal history to uphold and legitimize their new proposals.

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.