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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.

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.

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.