A Normal Anomaly in the Rule of law

Conceived as a contribution to a special issue devoted to the « reform of confinement conditions », this article examines the case of pre-trial detention (Untersuchungshaft) in the Federal Republic of Germany from World War 2 until today, starting with the observation that this regime has constantly been open to criticism. The excesses of as well as the shortcomings of the remand system have indeed continually been criticised since at least the order regulating this particular regime, whose first version dates back to 1953. Moreover, the critique of this « normalized exception » might end up calling into question the strength of the État de droit as a whole. Therefore, many reform proposals have been proposed over the last few decades, without changing much on the ground. Why is it that a system that is unanimously rejected as irregular and even outrageous persists as it does? In order to help to answer this question, this article first presents the principal motives structuring the critique of pre-trial detention: that it is a legal loophole; its disproportionate use; its judicial unfairness; the prison scandals; the sophistical control. It then tries to explain the notable decline in the number of remand prisoners over two decades by placing this quantitative trend in the framework of a global redistribution of state coercion.