Criminal law theory has difficulty in accommodating much of what is done by the modern state in the criminal context, difficulties which are especially stark where the state seeks not to respond to crime but to prevent it, sometimes invoking the civil process rather than the criminal. One response might be to argue that theoretical perspectives on criminal law need not address such devices. Regulatory offences are not really criminal law; preventive orders imposed by criminal courts are subversions of it; preventive orders imposed by civil courts have nothing to do with it – unless, at least, they are properly to be regarded as punitive in nature and so a disguised attempt to use the criminal law while circumventing the procedural protections normally attendant on it.
Such a response may be legitimate on its own terms, and criminal law theory's coherence may be all the better for it. But the broad reach of the preventive state is a reality, and one where there is an anxious need for proper work on its scope, theoretical underpinnings and constraints. No-one doubts that restrictions of liberty resulting from criminal conduct require convincing justification. Restrictions which seek to prevent, rather than respond to, such conduct raise yet more difficult questions; even more so when they seek to prevent hypothetical harms which may not themselves amount to criminal offences, or be brought about by culpable actors. While individual elements of preventive justice (most famously, the antisocial behaviour order) have received considerable attention, overarching work on preventive justice has been relatively limited.
Ashworth and Zedner's Preventive Justice is the culmination of a project running over several years which has sought to address this difficulty. It is historically and theoretically informed and thoroughly convincing. As the authors show, although much scholarship treats the development of the modern preventive state as “a new departure or paradigm shift” (49), it in fact has strong historical roots in eighteenth and nineteenth century approaches to criminal justice. Modern practices are, of course, rather different, with a striking feature of some aspects of preventive justice being the reliance on – and faith in – techniques of risk assessment. As the authors show (ch 6), this raises serious difficulty: the efficacy of such techniques is limited even at the group level. Their use to predict behaviour in respect of individuals may involve the...
