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Punitive and Preventive Justice in an Era of Profiling, Smart Prediction and Practical Preclusion: Three Key Questions

Beyleveld, Deyck; Brownsword, Roger

Punitive and Preventive Justice in an Era of Profiling, Smart Prediction and Practical Preclusion: Three Key Questions Thumbnail


Authors

Roger Brownsword



Abstract

In the context of a technology-driven algorithmic approach to criminal justice, this paper responds to the following three questions: (1) what reasons are there for treating liberal values and human rights as guiding for punitive justice; (2) is preventive justice comparable to punitive justice (such that the guiding values of the latter should be applied to the former); and (3) what should we make of preventive measures that rely not so much on rules and orders, but on ‘technological management’ (where the preventive strategy is focused on eliminating practical options)? Responding to the first question, a Gewirthian-inspired theory of punishment is sketched – a theory that is, broadly speaking, supportive of liberal values and respect for human rights. What makes this theory apodictic for any human agent is that it demands respect for the very conditions on which any articulation of agency is predicated. With regard to the second question, we indicate how a Gewirthian view of the relationship between punitive and preventive justice supports the logic of referring to the principles that guide the former as a benchmark for the latter; and we suggest some particular principles of preventive justice where the restrictions are targeted at individual agents (whether in their own right or as members of classes). Finally, we suggest that, although technological management of crime changes the complexion of the regulatory environment in ways that might be a challenge to a Gewirthian moral community, it should not be categorically rejected. Crucially, technological management, like other preventive strategies, needs to be integrated into the community's moral narrative and authorised only to the extent that it is compatible with the governing moral principles.

Citation

Beyleveld, D., & Brownsword, R. (2019). Punitive and Preventive Justice in an Era of Profiling, Smart Prediction and Practical Preclusion: Three Key Questions. International Journal of Law in Context, 15(2), 198-218. https://doi.org/10.1017/s1744552319000120

Journal Article Type Article
Acceptance Date Feb 13, 2019
Online Publication Date Jun 20, 2019
Publication Date Jun 30, 2019
Deposit Date Feb 21, 2019
Publicly Available Date Mar 29, 2024
Journal International Journal of Law in Context
Print ISSN 1744-5523
Electronic ISSN 1744-5531
Publisher Cambridge University Press
Peer Reviewed Peer Reviewed
Volume 15
Issue 2
Pages 198-218
DOI https://doi.org/10.1017/s1744552319000120

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Copyright Statement
This article has been published in a revised form in International journal of law in context https://doi.org/10.1017/S1744552319000120. This version is free to view and download for private research and study only. Not for re-distribution, re-sale or use in derivative works. © Cambridge University Press





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