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PREVENTION AND THE LIMITS OF THE CRIMINAL LAW
This page intentionally left blank
Prevention and the Limits
of the Criminal Law
Edited by
ANDREW ASHWORTH
LU CIA ZEDNER
and
PATRICK TOMLIN

1
 3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
# The several contributors, 2013
The moral rights of the authors have been asserted
First Edition published in 2013
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
British Library Cataloguing in Publication Data
Data available
ISBN 978–0–19–965676–9
Printed and bound in Great Britain by
CPI Group (UK) Ltd, Croydon, CR0 4YY
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
 Acknowledgements
The editors wish to express their thanks to the Arts and Humanities Research
Council for generously funding the three-year ‘Preventive Justice’ Project (AHRC
Project Number AH/H015655/1) from which this volume arose. We also thank
Dr Ambrose Lee, Post-Doctoral Research Officer on the project for his excellent
research and organizational help; Gabrielle Watson for her superb editorial assist-
ance; and Alex Flach, Natasha Flemming, and colleagues at OUP for seeing this
volume through to production. We are grateful to all those who participated in the
two Preventive Justice seminars held at All Souls College, Oxford in September
2011 and January 2012. Particular thanks go to those who acted as formal
respondents to the papers upon which these chapters were based: James Edwards,
Cécile Fabre, Andreas von Hirsch, Murray Hunt, Nicola Lacey, Ian Loader,
Laurence Lustgarten, and Shlomit Wallerstein. Last but certainly not least, we
thank all the authors whose chapters appear here for devoting their very consider-
able acumen and insight to the questions of preventive justice that we posed to
them and, in so doing, helping to further the aims of our Preventive Justice Project.
This page intentionally left blank
 Contents
List of Contributors ix

Introduction 1
Andrew Ashworth, Lucia Zedner, and Patrick Tomlin
1. The Ubiquity of Prevention 10
Frederick Schauer
2. Preventionism and Criminalization of Nonconsummate Offences 23
Petter Asp
3. Preventive Justice: The Quest for Principle 47
Markus D Dubber
4. Responsibility to Protect and Preventive Justice 69
Klaus Günther
5. Preventive Justice and the Rule-of-Law Project 91
David Dyzenhaus
6. Pre-Trial Detention and the Presumption of Innocence 115
RA Duff
7. Controlling Risk 133
Victor Tadros
8. Restraining Orders, Liberty, and Due Process 156
James W Nickel
9. Preventive Detention as Punishment? Some Possible Obstacles 178
Douglas Husak
10. Proportionality as a Limit on Preventive Justice: Promises and Pitfalls 194
Carol S Steiker
11. Democratic Limits to Preventive Criminal Law 214
Peter Ramsay
12. On Preventive Justice 235
Matt Matravers
viii Contents
13. Punitive Preventive Justice: A Critique 252
Bernard E Harcourt
14. The Politics of Mass Preventive Justice 273
Pat O’Malley

Index 297
 List of Contributors
Andrew Ashworth is Vinerian Professor of English Law in the University of Oxford and a
Fellow of All Souls College.
Petter Asp is Professor of Criminal Law at Stockholm University and the holder of the
Torsten and Ragnar Söderberg Chair of Legal Science.
Markus D Dubber is Professor of Law, University of Toronto.
R A Duff is a Professor in the Law School, University of Minnesota and Professor Emeritus
in the Department of Philosophy, University of Stirling.
David Dyzenhaus is Professor of Law and Philosophy at the University of Toronto.
Klaus Günther is Professor of Legal Theory, Criminal Law and Criminal Procedure at the
Faculty of Law, Goethe University of Frankfurt.
Bernard E Harcourt is the Julius Kreeger Professor of Law and Criminology and Professor
and Chairman of the Department of Political Science at the University of Chicago.
Douglas Husak is a Professor of Philosophy, Rutgers University.
Matt Matravers is Director of the Morrell Centre for Toleration and of the School of
Politics, Economics and Philosophy, both at the University of York.
James W Nickel is Professor of Philosophy and Law at the University of Miami.
Pat O’Malley is Professorial Research Fellow in Law at the University of Sydney and
Visiting Professor in the Department of Sociology, Social Policy and Criminology, Univer-
sity of Liverpool.
Peter Ramsay is a Senior Lecturer in Law at the London School of Economics.
Frederick Schauer is David and Mary Harrison Distinguished Professor of Law at the
University of Virginia and Visiting Professor of Law at Columbia University.
Carol S Steiker is the Henry J. Friendly Professor of Law at Harvard Law School.
Victor Tadros is Professor of Criminal Law and Legal Theory at the University of Warwick.
Patrick Tomlin is a Lecturer in Political Theory at the University of Reading.
Lucia Zedner is Professor of Criminal Justice in the Faculty of Law at the University of
Oxford and Conjoint Professor in the Faculty of Law at the University of New South Wales.
This page intentionally left blank
 Introduction
Andrew Ashworth, Lucia Zedner, and Patrick Tomlin

This book arises from a three-year study of Preventive Justice, generously funded by
the Arts and Humanities Research Council. The project’s main objective is to
develop an account of the principles and values that should guide and limit the
state’s use of coercive preventive techniques. Central to the project is an inter-
disciplinary and cross-jurisdictional approach, developed with the collaboration of
scholars from a variety of disciplinary backgrounds, jurisdictions, and legal cultures.
This book is the product of two seminars held at All Souls College, Oxford, at
which 14 leading international scholars in the fields of criminal law, public law,
legal theory, criminology, philosophy, and political theory presented and discussed
early drafts of what were to become the chapters collected in this volume. Each
draft paper was subject to detailed commentary by a designated respondent and
then subject to searching analysis by the invited seminar participants. Their
collective contributions advanced the debate and undoubtedly enriched the final
chapters in this volume. The contributing authors are all world-renowned scholars
in their respective fields. They include leading academics from the US, Canada,
Australia, South Africa, the UK, and continental Europe.
Understood simply, the criminal law is a backward-looking institution. What-
ever its overarching rationale or justification, in its implementation the core of the
criminal law punishes persons for their past behaviour. However, this simple
backward-looking story has never fully captured what the criminal law is or seeks
to achieve, and increasingly states use the criminal law or criminal law-like tools to
try to prevent or reduce the risk of (anticipated) future harm. Such measures
include the criminalization of ordinarily harmless and seemingly innocent behav-
iour in order to allow authorities to intervene at an early stage; the incapacitation of
suspected future wrongdoers; and extended sentences for past wrongdoers on the
basis of their predicted future conduct.
There are good reasons to justify state use of coercion to protect the public from
harm. And yet, although the rationales for and justifications of state punishment
have been explored extensively, the scope, limits, and principles of what we term
preventive justice—the use of the criminal law and related coercive measures in a
directly preventive way—have attracted little doctrinal or conceptual analysis (save
in respect of counterterrorist measures). The chapters in this book seek to reassess
the foundations for the range of coercive measures that states now take in the name
2 Andrew Ashworth, Lucia Zedner, and Patrick Tomlin
of prevention and public protection. Among the recent legal developments dis-
cussed below are the extension of criminal liability to merely preparatory and pre-
inchoate acts, technologies of prevention relating to road traffic offences, specially
restrictive measures against suspected terrorists, restraining measures that make use
of civil procedures, expanding pre-trial detention, preventive detention of ‘danger-
ous’ offenders, and so on. In this Introduction, we outline the main contributions
made by each chapter, and then explore some core themes.
The first five chapters examine the nature and historical antecedents of prevent-
ive justice and its relationship with criminal law and punishment. In the first
chapter, Schauer questions the dichotomy assumed to exist between ex ante and
ex post punishment. He argues that all judgements of guilt and all punishments have
a probabilistic component and that, by accepting proof beyond reasonable doubt
rather than requiring certainty, we place a probabilistic assessment at the heart of
criminal justice. Given that we accept an error rate in respect of conviction,
objections to preventive measures arise only if the error rate in respect of prediction
of future crimes is higher. What is different about, and wrong with, preventive
measures is less that they are preventive, than that they are often based on lower
probabilities than the criminal law would demand. There are also non-probabilistic
differences between ex ante and ex post measures. However, to the extent that they
are relevant, Schauer argues, there may be a greater wrong in restricting someone on
account of doing something they did not in fact do, than in denying someone who
will probably offend in the future the chance to do wrong. His message is that
preventive justice and probabilistic assessments are all around us, and when we
object to them we must be precise about the nature of our objection.
Asp identifies a general trend toward ‘preventionism’, by which he means the
criminalization of nonconsummate offences. Asp recognizes that prevention and
criminalization are closely linked conceptually but argues that prevention poses
difficulties for the distribution of punishment because it departs from the ordinary
requirements and limits of deservedness. His particular concern is with the risks
associated with preventionism and, in particular, in respect of complex noncon-
summate offences, namely those that require ulterior intent. Although Husak has
argued that a high culpability requirement helps justify criminalization of non-
consummate offences,1 Asp regards this requirement as problematic because it
holds the actor ‘partially responsible for something that he or she has not done
yet’ and, in so doing, alters the scope and gravity of the offence for which an
offender will face punishment.
Dubber’s chapter contends that much contemporary scholarship on preventive
justice pays insufficient heed to the historical antecedents of preventive endeavour
and consequently overplays the novelty of present developments. It follows, he
argues, that scholars are misguided in attempting to evaluate preventive endeavours
by reference to the principles of penal justice without first seeking to understand the
historical origins of the penal state. Dubber’s argument builds upon the contention,

1 D Husak, ‘The Nature and Justifiability of Nonconsummate Offences’ (1995) 37 Arizona Law

Review 151–83; D Husak, Overcriminalization. The Limits of the Criminal Law (2008) 159 ff.
 Introduction 3

developed in his earlier works (most notably The Police Power)2 that the ideal of the
Rechsstaat or ‘law state’ must be set against the historical exercise of the police
power, which, insofar as it is concerned with the maintenance of peace and good
order, is largely synonymous with prevention. From the perspective of the police
power, ideas of justice and legitimacy have no purchase, argues Dubber, because the
exercise of the police power is unconstrained by principles of any kind. He
concludes that measures of preventive justice are less departures or deviations
from justice, rather they result from a distinction ‘between law and police as
basic modes of governance’. Dubber thus offers an intriguing historical explanation
for the relative ease with which states have developed preventive measures in a
seemingly untrammelled manner.
Günther, building on the work of David Garland,3 among others, claims that
there has been a ‘paradigm change’ in criminal justice. Governments are increas-
ingly focused on the protection of innocent citizens, who see such protection as a
right, whereas constitutional and human rights documents traditionally seek to
limit the state’s power to punish by protecting the rights of suspected, accused, and
convicted offenders. In investigating the significance of this shift, Günther explores
the relationship between the Responsibility to Protect (RTP), an influential norm
in international public law, and preventive justice. He takes RTP out of its
international context and uses it, instead, as a lens through which to explore the
preventive state. He traces the normative foundations of RTP to the contractualist
justifications of the state found in Hobbes and Locke. In such theories, citizens give
up their duty of self-protection to the state, which must then protect them, but,
Günther argues, in democratic societies, this responsibility is passed back to the
citizens. One danger of the preventive state is that, in tension with a democratically
founded RTP, it encourages us to view ourselves as the ‘good’ in need of protection
from the ‘dangerous’ and to seize human rights as a tool with which to do so. This
responsibility to protect the majority against the minority of criminal offenders,
argues Günther, ‘changes the anti-majoritarian meaning and direction of human
rights into a majoritarian right to protection’.
In his contribution, Dyzenhaus explores the implications of preventive justice
for the larger ‘rule-of-law project’, namely the attempt to ensure that the decisions
of public officials comply with values and principles that should be exhibited by a
legal order. Key to his analysis is an insistence that legitimacy is achieved not merely
by meeting formal or procedural conditions but that it also requires compliance
with substantive or moral conditions. Dyzenhaus argues that legitimacy is attained
when legislatures determine appropriate legal resolutions to contemporary prob-
lems and officials implement those resolutions according to law and principles of
legality. There is, says Dyzenhaus, a ‘surplus value created by the conversion of
public policy into law’. He goes on, however, to identify a series of hazards
particularly germane to preventive endeavours that range from the creation of
legal black holes, such as Guantanamo Bay; legal ‘grey’ holes that give the appearance

2 MD Dubber, The Police Power: Patriarchy and the Foundations of American Government (2005).
3 D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (2001).
4 Andrew Ashworth, Lucia Zedner, and Patrick Tomlin
of legality but mask substantive black holes and are, therefore, even more dangerous;
and, perhaps most dangerous, the ‘veneer of legality’ that conceals questionable
executive decision-making. Avoiding these hazards requires a high degree of vigilance
by the legislature, judiciary, and other public officials if the ‘virtuous cycle of legality’
is to be maintained even in the most security-sensitive cases.
The next three chapters focus upon particular exemplars of preventive endeav-
our. Duff ’s chapter examines the pre-trial detention of those denied bail, a long-
existing facet of the criminal justice system that has received little attention from
normative theorists. Pre-trial detention is problematic, argues Duff, because it
treats the defendant as guilty ahead of trial, fails to treat the individual as a
responsible agent, and seems to be inconsistent with the presumption of inno-
cence. Duff regards the neglect of this category as odd, observing ‘why should the
detention of those suspected of involvement in something as seriously threatening
as terrorism provoke so much louder protest than the far more frequent detention
of those charged with, but not convicted of, far less serious crimes?’ His chapter
examines the ‘instrumental, consequentialist rationale’ for pre-trial detention; it
explores whether it is possible to provide principled justifications; and, in par-
ticular, whether it is possible to reconcile pre-trial detention with the presump-
tion of innocence. While acknowledging that becoming a defendant in the
criminal process attracts ‘certain new duties or responsibilities’ that, in turn,
justify different kinds of restriction of which detention is only the most onerous,
Duff concludes that pre-trial detention is morally problematic in ways we rarely
acknowledge.
In Tadros’ chapter the related issues of preventive detention and the justifica-
tion of intervention on grounds of risk coalesce around the problem of Control
Orders, now Terrorism Prevention and Investigation Measures (TPIMs), used to
detain those suspected terrorists deemed to pose a risk to national security. Tadros
contends that there has been insufficient ‘systematic evaluation of the moral
significance of risk’ and that the consequentialist approach to risk, which underpins
these measures, has not been countered by a sufficient non-consequentialist account.
Tadros demonstrates persuasively that risk underpins the Control Order/TPIM
regime, yet the level of risk required is poorly specified and the requirement that
the order be ‘necessary’ is ambiguous. He goes on to explore questions relating to the
‘moral significance of risk prevention’, positing that a distinction between ‘open’ and
‘closed’ risks may be able to explain why we should be more troubled by harmful
preventive measures which eliminate a very small risk of a great harm than those that
prevent a certain small harm. Like many other contributors to this volume, Tadros
concludes that the philosophical groundwork for evaluating preventive measures is
underdeveloped.
Nickel’s chapter offers a critical examination of the features of restraining orders
and their growing use particularly in the USA and the UK. It explores the concept
of restraint, its impact on the liberty of the individual, and the sorts of procedural
protections that ought to apply. His analysis spans the most coercive exemplars,
such as quarantine orders, through to less invasive examples such as domestic and
workplace restraining orders. It considers their impact on liberty, deploying Pettit’s
 Introduction 5

conception of freedom as nondomination4 to tease out the variety and degree of

coercion entailed. Nickel goes on to explore the compatibility of restraining orders
with human rights protections and concludes that not only do rights violations
occur only rarely but that, at best, such orders ‘redistribute freedom from the
restrainee to the protectee(s) in ways that can increase freedom overall’.
The chapters by Husak and Steiker each address in different ways questions of
how preventive measures should be conceived, justified, and restrained. Against
those who have robustly objected to the ‘cloaking’ of preventive detention as
punishment,5 Husak has challenged the idea that preventive detention is conceptu-
ally distinct. Rather, he has argued that detention for preventive ends should be
understood as punishment and the conduct or traits of persons that lead to
detention should be constructed as crimes. By bringing preventive detention within
criminal law and criminal justice, Husak claims, it can be justified as retributive
punishment and be subject to the principled constraints that apply to such
punishment.6 In his chapter, Husak is primarily concerned to explore the concep-
tual and normative obstacles to doing this. By exploring and seeking to overcome
these obstacles, Husak seeks to show that preventive detention can be both
conceived of and justified as punishment. The most difficult element is that
preventive logic requires the punishment to be tailored to danger, not desert.
However, given the seriousness of crimes in view, Husak argues that in practice
the proportional sentence and that required for preventive purposes are unlikely to
differ.
Steiker’s focus is on the concept of proportionality, developed in respect of
punishment. She explores the possibility that proportionality might be adapted for
use in respect of prevention by focusing on the seriousness of the harm to be averted
and the probability of its occurrence in the absence of prevention. Steiker contends
that proportionality is not a justificatory theory of prevention any more than it is a
justificatory theory of punishment but that it may have a role to play as a constraint.
Thus conceived, proportionality might go some way to resolving questions of
duration, conditions of confinement, discriminatory operation, and perhaps ques-
tions of procedural form. Steiker also recognizes that there are limits to its reach and
its ability to provide clear guidance as to what may justly be done in the name of
prevention. She recognizes also that there are obvious pitfalls—not least, how to
measure the probability of future harm and, in particular, how to calibrate propor-
tionality in the case of low probability but high harm risks; resort to the pre-
cautionary principle and its problems; the hazards of pretextual uses of preventive
measures (for example the use of immigration detention and ‘material witness’
statutes in the USA immediately after 9/11); and the possibility of perverse
interactions with the criminal law. Steiker reveals herself to be sceptical about the

4 P Pettit, Republicanism: A Theory of Freedom and Government (1997).

5 PH Robinson, ‘Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice’
(2001) 114 Harvard Law Review 1429–55.
6 D Husak, ‘Lifting the Cloak: Preventive Detention as Punishment’ (2011) 48 San Diego Law

Review 1173.
6 Andrew Ashworth, Lucia Zedner, and Patrick Tomlin
uses of proportionality in respect of punishment and she concludes that proportion-
ality is unlikely to function as a robust constraint in respect of preventive measures.
The remaining chapters address very different aspects of the politics of preventive
endeavour. Critiques of the expansion of the scope of the criminal law beyond the
core of harmful behaviour, or behaviour closely related to harm, typically seek to
show them to be inconsistent with liberalism. Instead, Ramsay seeks to develop an
alternative political theory of preventive criminal law by exploring the extent to
which pre-inchoate criminal laws can be rendered consistent with representative
democracy. His chapter examines the grounds for and legal features of pre-inchoate
offences and it examines the application of liberal principles, and in particular the
harm principle, as a legitimating ground for pre-inchoate laws. Ramsay suggests
that the articulation of a ‘richer account of democracy’, which includes ‘a concept of
political self-government’ and respect for ‘the institutions of formal trust among
citizens’, might more effectively inform and limit the scope of the criminal law.
Matravers’ chapter provides a normative account of preventive justice that seeks
to overcome the assumed antinomy between prevention and justice. It does so not
by adopting a consequentialist account of prevention but by addressing the ques-
tions what is due to people and on what conditions can prevention be justified?
Following Scanlon, he articulates an account in which, rather than thinking of
prevention as a goal that must be constrained by concern for individual liberty or
justice, it should rather be regarded as both motivated by and properly pursued
through policies that respect the status of persons. Such an account places heavy
normative weight on seeing individuals as agents who make choices in accordance
with reasons. However, Matravers also contends that we are in the midst of a ‘crisis
in our understanding of agency’ in which we are more and more aware of ‘the
degree to which our fates are not fully our own or determined by our choices’.
Viewed from this perspective, Matravers argues, preventive policies may be seen in
a different light: instead of regarding preventive justice as a means of protecting the
public from those who threaten, it might better be thought of as protecting us all
from ourselves in circumstances that risk harm.
Harcourt’s chapter identifies the origins of contemporary preventive endeavour
in the work of the RAND Corporation in America, which developed highly
technical studies of crime prevention based upon systems analysis. Harcourt
suggests that RAND promoted a decidedly punitive style of prevention based
upon policing and punishment that is replicated in modern ‘punitive preventive
measures’. Harcourt subjects these measures to searching criticism, focusing on the
perils they pose and the weakness of their empirical foundations. Most worryingly,
for Harcourt, these measures typically claim an apolitical, neutral emphasis on
efficiency that fails to engage with the political values underlying them. In so doing,
it tends to displace much needed political debate about their justifiability.
O’Malley’s chapter builds upon his extensive writings on risk and its manage-
ment to examine the domain of traffic regulation, one in which, O’Malley observes,
‘preventive justice has made rapid and far-reaching advances’. His chapter addresses
the ways in which emerging technologies of prevention, risk assessment, and risk-
based laws relating to traffic offences form the basis for what he calls ‘mass
 Introduction 7

preventive justice’. The scale and volume of mass regulation requires a shift away
from individual defendants to ‘coded identifiers’ and ‘risk pools’ and away from
individualized punishment to fixed monetized sanctions. O’Malley’s contention is
that ‘the rise of mass preventive justice is part of the monetization of justice more
generally’: money sanctions make possible what O’Malley terms ‘massification’ and
the revenues derived are drivers of expansion. O’Malley explores forms of resistance
to mass preventive justice, including challenges to its claim to prevent harm and
concerns about the invasion of privacy entailed by new technologies of surveillance.
His chapter reveals the pervasive spread of preventive technologies; their ‘embedd-
edness in everyday life’; and how little opposition they have provoked.
As can be seen from these summaries, the chapters discuss a wide range of
preventive measures from a variety of theoretical perspectives. A volume of this kind
cannot present an integrated theoretical framework, but what it can do is to raise
and explore a number of central issues. Thus several themes emerge strongly from
this collection, themes that must be taken seriously by those wishing to advance the
study of preventive justice.
First, there is no doubt among the contributors that the state has a duty to
protect people from harm, a duty that may provide the justification for a wide range
of preventive measures (eg Matravers, Nickel, Günther). The precise contours of
the duty to protect are contestable, both in terms of what risks should be protected
against and in terms of what measures may properly be taken (Günther). In
particular, this raises further questions of two kinds—whether there are intelligible
distinctions between punishment and prevention, and what limits might properly
be placed on the pursuit of prevention.
The definitional question of how preventive measures can be distinguished from
punitive measures underlies several contributions. A preliminary task is that of
identifying how much prevention there is within conventional criminal law and
criminal justice and how far, therefore, preventive endeavours can be said to
constitute a departure from the norm (Schauer, Dubber). Related to this is the
question of how far prevention informs the substantive criminal law (Asp, Ramsay),
and whether and to what extent ‘preventionism’ is altering the scope of the criminal
law. The reverse question is how much punishment there is within measures
formally labelled preventive (Harcourt). These enquiries are essential if the defin-
itional question is to be placed in its full context. Indeed, they lead to a reconsider-
ation of whether prevention and punishment are really distinguishable at all,
particularly in respect of those measures at the most coercive end of the spectrum
such as preventive detention of the ‘dangerous’ (Husak). In view of the contem-
porary prevalence of preventive rationales for compulsory measures (Asp, Schauer),
are there convincing reasons for keeping the concepts separate?
The criminal law and punishment are certainly the paradigm forms of compul-
sory measure, and they typically carry with them a number of substantive
limitations and procedural safeguards, some deriving from human rights instru-
ments. Those particular limitations and safeguards tend not to apply to preventive
measures outside the criminal law and yet such measures also impose significant
detriments on those subject to them. This raises the question whether the legitimacy
8 Andrew Ashworth, Lucia Zedner, and Patrick Tomlin
of preventive endeavour is principally a question of procedure, a substantive issue, or
a matter of democratic mandate (Dyzenhaus). One concept that does duty as a
restraining principle in punishment theory is proportionality and Steiker’s contribu-
tion assesses the extent to which it can be mobilized to perform the same function
effectively for preventive measures. There may be other restraining principles, such as
requiring a preventive measure to be properly tailored to its objective (Dyzenhaus)
and to be the least restrictive of the appropriate alternatives. Nonetheless, the
difficulty of identifying restraining principles may result from the different logic of
prevention, which in its pure form insists that measures are selected for their
preventive efficacy rather than by any other metric, thereby focusing the choice of
measure purely on empirical questions rather than normative ones (Asp, Harcourt).
Indeed, some contributors identify the difficulties of constructing realistic limits
(Duff, Tadros), although others suggest that within existing human rights parameters
certain forms of preventive measure may be supported in a largely unmodified form
(Nickel). These are important lines of enquiry: the predominant critique has con-
sisted of liberal reservations about coercive preventive measures in and outside the
criminal law, whereas there may be situations in which reasonable preventive
endeavours are bound to reduce liberty if they are to exist at all.
To the extent that preventive measures can be justified, they will often depend
on a form of risk assessment and often on an estimation of probability (Schauer).
Dealing with probabilities is not alien to the criminal law—after all, a verdict of
guilty requires not certainty but proof ‘beyond reasonable doubt’—but the import-
ant questions concern the degree of probability required for the imposition of a
particular preventive measure, the robustness of the supporting evidence, and
whether or not it is consistent with the standards of the criminal process (Duff).
The general evidence in favour of the reductive effect of some ‘preventive’ strategies
in the road traffic sphere is doubtful (O’Malley), and the fragility of the evidential
basis for strategies such as ‘broken windows’ theory, profiling, and selective and
mass incarceration can be demonstrated (Harcourt). If the evidential foundations
are unconvincing, the case for preventive measures is weakened.
This gives good grounds for reconsidering the preventive uses of the criminal law
itself. It is accepted that many offences now impose criminal liability at an earlier
stage than the law of attempts, for conduct that is remote from the harm-to-be-
prevented. One argument is that this can be justified in view of the known frailty of
human nature and imperfect resistance to temptation: by imposing liability well
before harm is done (as in offences of possession, or the offence of ‘engaging in any
conduct in preparation for’ giving effect to an intention to commit an act of
terrorism), the law not only protects the general public but also protects defendants
from the ‘catastrophic consequences of their own behaviour’ (Matravers). This is an
argument that goes against the prevailing liberal theory and conception of the
person as an autonomous agent, which objects to the criminal law holding someone
liable for something that he or she has not done yet (Asp). But then it should not
be assumed that we are confined to or by the liberal critique. Ramsay urges us to
look beyond liberalism to other political theories, notably to the concept of
representative democracy, arguing that the concept of the citizen found therein
 Introduction 9

clashes with the way that some preventive measures require the state to see us, and
us to see each other, and therefore offers a platform for resisting certain aspects of
preventionism. Matravers, meanwhile, welcomes a questioning of the liberal view
of the person as a fully responsible autonomous chooser. Thus, as many of the
contributions suggest, the challenges posed by preventive justice are not to be
found on the fringes of legal or political theory but rather go to the very core of the
role of the state and the proper conception of the citizen.
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