A Consequentialist Framework for Prevention

Document Type

Article

Publication Date

2-11-2022

Abstract

Douglas Husak contends that both criminalization and punishment can serve preventive goals, so long as they respect retributive culpability constraints. This Essay draws on Husak’s work to argue that, while Husak is right to defend the legitimacy of criminal law as a (partly) preventive endeavor, preventive coercion is also permissible on consequentialist grounds alone, outside the culpability constraints of the criminal law. The Essay presents a unified consequentialist theory of preventive coercion, addresses deontological objections to ‘pure’ preventive detention, and argues that a consequentialist approach to prevention might ultimately be more protective of liberty and equality interests than the deontological ‘mad or bad’ approach that currently dominates Anglo-American jurisprudence and legal theory.

Keywords

criminal prevention, consequentialist, culpability

Publication Title

Law and Philosophy

Publication Citation

41 L. & Phil. 219 (2022).

DOI

https://doi.org/10.1007/s10982-021-09427-5

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