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.
The genealogy of pecuniary punishments is a story of constant reformulation in response to shifting political pressures, changes in institutional and administrative arrangements, and intellectual developments that changed ideological commitments of legislators and practitioners. Within this chronicle of reformulation, broad transformations since the late 17th century are discernible. These legal transformations, most of which have been widely discussed and debated, help delimitate old and new forms of punishment and, to some degree, different modes of constructing punishment inside the criminal law. Based on the notion that the legal discussions during the 19th century set the stage for the profound reforms initiated by the emergence of consumer societies, the discourses that unfolded from around the end of early modern times until now are analyzed, even though few could have predicted the increase in the use of fines and confiscation that would occur throughout the 20th century. For the fine to reach such a state of ubiquity, one of its most criticized characteristics derived from its monetary nature had to undergo a severe scrutiny: the unequal impact on offenders caused by the unequal distribution of money between individuals in society. Confiscation, on the other hand, after having being extensively used by the Nazi, fascist, and Francoist regimes against “people’s enemies” and political opponents, was rediscovered as one of the most powerful weapons in the fight against organized crime during the war on drugs in the 1980s. In the 21st century it has become increasingly important for countries to be able to freeze and confiscate property related to the committing of an offense, thus depriving criminals of their illicitly obtained assets.
Political violence includes an array of conducts and events that defy unilateral examination. It may be authorized or unauthorized violence, and while the latter is almost always associated with crime, the former is normally deemed an expression of the legitimate monopoly in the use of force characterizing modern societies. There are institutional and anti-institutional forms of political violence, namely violence of the authority and violent expressions of defiance against authority. Both have been the object of analysis by sociologists and criminologists, with some contending that theories of “common” violence should be applied to the analysis of political violence. It is assumed, for example, that both types of violence possess a goal-directed character: achieving results, extracting something of value from others, or exercising justice by punishing wrongdoers. Other analysts, however, link political violence with social conflict derived from collective grievance around inequality and injustice, thus locating this type of violence within the tradition of social movement analysis and the dynamics of collective action. Conflict theory provides a prime framework for this type of analysis, which focuses on contentious issues, organizational matters, and the shaping of identities that lead aggrieved groups to turn to violence. Sociological and criminological theories also offer a rich analytical patrimony that helps focusing on political crime committed by states and their representatives occupying powerful social positions. Many contributions, in this respect, cover atrocities perpetrated by institutional actors and the different forms of conscious, unconscious, personal, cultural, or official denial accompanying such atrocities. The term political crime, therefore, ends up relating to state crime, political and administrative corruption, and a variety of crimes of the elite normally included under the umbrella definition “the crimes of the powerful.” Conversely, when the focus moves onto political violence perpetrated by anti-institutional or non-state actors, the term “terrorism” is usually referred to, a term that is not likely to meet universal acceptance or unquestioned adoption due to the difficulties social scientists find in defining it. In sum, political violence and crime present scholars and practitioners with the same ambiguity that connotes definitions of social behavior and the processes of its criminalization. Such ambiguity becomes clear if, as proposed in the following pages, political violence and crime are examined through multidisciplinary lenses, particularly those offered by social theory, philosophy, and political science, along with criminology.