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Article

Susanne Krasmann

When Guenther Jakobs introduced the concept of “enemy criminal law” (Feindstrafrecht), or enemy penology, into the legal debate, this was due to a concern with the increasingly anticipatory nature of criminalization in German legislation in the last decades of the 20th century. Against the backdrop of a series of terror attacks in the West and the ensuing debates on how to deal with the dangers and threats of the new millennium, Jakobs’s theory gained new momentum in Germany’s public discourse and beyond. As it seems, the author himself turned the concept into a device for political intervention, declaring the notion of the enemy as indispensable for dealing with certain extreme crimes and notorious offenders, not only to prevent future crime and avert harm from society but also, and most notably, to preserve the established “citizen criminal law” (Bürgerstrafrecht): the enemy is the one to be isolated and excluded from the system. Enemy criminal law may be a peculiar legal concept. The logic of enemy penology, however, leads us to some more fundamental insights into the conundrums of liberal political thinking and attendant legal conceptions. It requires us to think about the enemy as a liminal figure that points to the preconditions and the paradoxes of our legal system. The history of criminology attests to the discipline’s struggle with penal law’s inherent limitations. And if we live today in times where exception and rule, internal security and external security, and military and police concerns increasingly overlap and intermingle in the face of ever new threats, the notion of enemy penology helps us to critically reflect on the mechanisms that drive these transformations.

Article

Critical race theory (CRT) concerns the study and transformation of relationships among race, (ethnicity), racism, and power. For many scholars, CRT is a theoretical and interpretative lens that analyzes the appearance of race and racism within institutions and across literature, film, art, and other forms of social media. Unlike traditional civil rights approaches that embraced incrementalism and systematic progress, CRT questioned the very foundations of the legal order. Since the 1980s, various disciplines have relied on this theory—most notably the fields of education, history, legal studies, feminist studies, political science, psychology, sociology, and criminal justice—to address the dynamics and challenges of racism in American society. While earlier narratives may have exclusively characterized the plight of African Americans against institutional power structures, later research has advocated the importance of understanding and highlighting the narratives of all people of color. Moreover, the theoretical lenses of CRT have broadened its spectrum to include frameworks that capture the struggles and experiences of Latinx, Asian, and Native Americans as well. Taken collectively, these can be regarded as critical race studies. Each framework relies heavily on certain principles of CRT, exposing the easily obscured and often racialized power structures of American society. Included among these principles (and related tenets) is white supremacy, white privilege, interest convergence, legal indeterminacy, intersectionality, and storytelling, among others. An examination of each framework reveals its remarkable potential to inform and facilitate an understanding of racialized practices within and across American power structures and institutions, including education, employment, the legal system, housing, and health care.