A new legal science with an old aftertaste

Opposing a good old liberal self to the degraded image of a coercive present is a recurrent argumentative tool in criminal law scholarship. In an important new book, Markus Dubber attempts to make use of a more complex dualistic framework to better achieve the same objective – namely, subjecting penal power to a normative analysis of legitimacy. He argues that criminal law scholars on both sides of the Atlantic have failed to acknowledge the fact that penal power is constantly shaped by two concurring modes of thought: law and police. Thus, subjecting penal power to a reconstruction of the way in which they find their way into institutional reality would offer a path forward for a legal scholarship truly committed to a legal ideal of legitimacy. This review essay focuses on criticizing this diagnosis. It contends that the image of legitimacy analysis offered by the model neglects many of the most pressing issues faced by modern criminal justice. Thus, despite the convincing criticism to which some forms of scholarship are subjected, the book ends up producing an image of legitimacy analysis that is strikingly similar to its departure point.