Trust, Distrust and Reassurance: Diversion and Preventive Orders Through the Prism of Feindstrafrecht
| Author | Daniel Ohana |
| Published date | 01 September 2010 |
| Date | 01 September 2010 |
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00816.x |
Trust, Distrust and Reassurance: Diversion and Preventive
OrdersThrough the Prism of Feindstrafrecht
Daniel Ohana
n
This article cons iders Gˇnther Jakobs’ controversial theory of ‘the criminal law of the enemy’
(Feind strafrecht ). Taking an interpretive perspective that is anchored in social theory, rather than
normativeprinciples, the article traces the implications of Jakobs’ce ntralclaims concerning trust
relations in society as mediated by the criminal lawa nde ndeavours to articulate their relevance
for English law, particularly as regards the growing role of diversion and preventive orders in
criminal justice. It identi¢es the various ways in which these current alternatives to the criminal
sanctioning process li nk with neo-liberal technologies of government by connecting Jakobs’
thoughts on trust with key themes in the Foucauldian governmentality literature and recent
research on the ascent of auditing as a meta-regulatory mechanism.
INTRODUCTION
Just over a decade ago, Gˇnther Jakobs, the prominent and in£uential German
legal theorist, sparked a storm of controversy in his homeland when he set forth
his theory of ‘the criminal law of the enemy’ (Feindstrafrecht).
1
Membersofsociety
whose conduct signals their disloyal attitude towards the law, such as predatory
sex o¡enders and terrorists, Jakobs argued, should be made subject to a special
paradigm of criminal law. Signi¢cantly, substantive and procedural due process
guarantees that apply as a rule within the criminal law could be relinquished in
this framework for the sake of defending society against citizens whose conduct
suggests that they no longer consider themselves bound by its norms. Recently,
the controversysurrounding Feindstrafrecht hasfanned out from Germany to other
European jurisdictions, spawning a £urry of commentary. This development is
hardly surprising, given that the turn of the millennium in many European jur-
n
Teaching Fellow, Institute of Cr iminology and Faculty of Law, Hebrew University of Jerusalem;
Faculty of Law,Tel Aviv University. The ¢ nancial support of the DAAD Center for G erman Studies
at the European Forum of the HebrewUniversity of Jerusalem is appreciatively acknowledged.I am
grateful for the hospitality of K nut Amelung dur ing my vi sit at theTechnische Universita
ºt Dresden,
and for the comments of Leslie Sebba, Miriam Gur-Arye and the anonymous reviewers.
1Jakobspresented his theory at a majorco nferenceconcerni ng‘the German science of criminal law
at the turn of the century.’ G.Jakobs,‘Selbstversta
ºndnis der Strafrechtswissenschaft vor den Her-
ausforderungen der Gegenwart (Kommentar)’ in A. Eser,W. Hassemer,and B. Burkhardt (eds),
Die DeutscheStrafrechtswissenschaftvor derJahrtausendwende (Mˇnchen: Beck, 2000) 47. In the paper
presented at the conference,Jakobs developedthe notionof Feindstrafrechtwhich he ¢rst conceived
about ¢fteen years earlier, without subsequently expanding upon it at length. Surprisingly,
Jakobs made a volte-face, as the idea of Fei ndstrafrech t originally conveyed his opposition to the
extension of the criminal law through the criminalisation of courses of conduct that on lyprese nt
a remote threatof harm. See G. Jakobs,‘Kriminalisierung imVorfeldei nerRechtsgutsverletzung’
(198 5) 9 7 Zeitschrift fˇr die gesamte Strafrechtswissenschaft 751. On the German notion of ‘science of
criminal law’see generally M. D. Dubber,‘The Promise of German Crimi nal Law:AScience of
Crime and Punishment’(2005) 6 German LawJournal 104 9.
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2010) 73(5) 721 ^751
isdictions has been characterised by the enactment of a spate of legal measures
bearing the imprint of the patterns of lawmaking sketched out by Jakobs.
Discussion thus far of Jakobs’theory has primarily concerned those aspects of it
which o¡era warrantfor the di¡erentialtreatmentof actors brandedas e nemiesof
society. This article, however, takes a di¡erent approach by focusing on the con-
stitution of the responsible citizen in Jakobs’ account as a loyal member of the
polity who autonomouslycultivates a readiness to follow the norms of the crim-
inal law, thereby upholding its power to command authority and facilitate inter-
action between anonymous actors in society. It endeavours to articulate the
relevance of Jakobs’ account to English law, particularly as regards the growing
role of diversion and preventive orders. It looks broadlyat the historical, political
and social conditions under which these alternatives to the criminal sanctioning
process emerged, and explores the ways in which they connect with prevailing
practices of governance and intellectual ideas.
2
To be sure, Jakobs himself does
not discuss the wider historical, political and socio-economic context when
addressing recent legal developments in crime prevention policy ^ short of a few
£eeting comments bemoaning the breakdown of national identity, family values
and state-sponsored religion in the wakeof increasing globalisation and multicul-
turalism.
3
Yet, by tracing the implications of Jakobs’ central claims concerning
trust relations in society as mediated by the criminal law, I argue that the broad-
ening of the use of diversion and preventive orders constitutes a visible represen-
tation of part of a wider transformation which has been taking place in trust
relations between, on the one hand, the state and its citizens (vertical trust rela-
tions), and, on the other, amongst members ofsociety (horizontal trust relations).
This transformation forms part of a pattern of major change in government and
the provision of its services over the past few decades, as neo-liberal governance
has displaced Keynesian welfarism, ushering in a new regulatory state.
4
Though
the rise of neo-liberalism to the position of a dominant political, economic and
regulatory paradigm constitutes a complex and multi-faceted phenomenon, this
paper focuses on two strategies characteristic of this mode of governance: ¢rst,
encouraging individuals to take responsibility for shaping their life-project and
to manage its attendant risks by curbing state interventions designed to alleviate
socio-economic disadvantage and protect against the vicissitudes of the market;
and, second, inducing the private sector to assume functions and deliver services
previously o¡ered by the state, while the state takes on a supervisory role, govern-
ing at a distance its newfound ‘partners’ via such mechanisms as the audit and
enforced self-regulation.
The argument proceeds as follows. I begin by presenting the main tenets of
Jakobs’theory of criminal law and punishment, and then review the numerous
grievances that have been voiced against Jakobs’theory of Feindstrafrecht inthe Ger-
man criminal lawliterature. Theremainder of the paperdiscusses the relevance of
2See generally N.Lacey,‘LegalConstructions of Crime’ in M. Maguire,R. Morgan and R.Reiner
(eds),The Oxford Handbookof Criminology (Oxford:Oxford University Press, 4
th
ed, 2007) 179.
3G. Jakobs,‘Selbstversta
ºndnis der Strafrechtswissenschaft vor den Herausforderungen der Gegen-
wart (Kommentar)’n 1 above,52.
4See generally J.Braithwaite,‘TheNew Regulatory State and theTransformationof Cr iminology’
(2000) 4 0 BritishJournalof Criminology222.
Trust,Distrust and Reassurance
722 r2010The Author. Journal Compilation r2010The Modern Law ReviewLimited.
(2010)73(5) 721^751
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