Dubber on The Legality Principle in American and German Criminal Law

The Legality Principle in American and German Criminal Law: An Essay in Comparative Legal History has just been posted by Markus D. Dubber, University of Toronto - Faculty of Law.  The abstract is too short, so here are the first two paragraphs:

This paper begins by briefly recounting the (non-)history of the principle of legality in American criminal law. This account of an absence of lawness is complemented by an account of the presence of policeness, the history of American penality being presented within the framework of the relationship and tension between law and police as two fundamental modes of governance. The predominant history of American penality turns out to be the history of American penal police, rather than of penal law, as the state’s power to punish is conceptualized as an instance of the state’s power to police.

The short history of the non-legality of American penality is then transformed, and expanded, into an exploration of the potential of comparative legal history as a tool of critical analysis of law, outlining the contours of a cross-temporal and cross-systemic analysis of the principle of legality, with the history of the principle of legality in German criminal law as a point of comparison.