A Consequentialist Framework for Prevention
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.
criminal prevention, consequentialist, culpability
Law and Philosophy
Mayson, Sandra G., "A Consequentialist Framework for Prevention" (2022). Faculty Scholarship at Penn Carey Law. 2907.