Preventive Justice, Autonomy and Rehabilitation: A Contribution Toward a Critical Theory of Law

The thesis investigates the legitimacy of preventive justice, understood as those legal frameworks that seek to reduce the risk of crime. A critical theory approach is adopted which is based on the work of Axel Honneth. In particular, the thesis adopts Honneth’s intersubjective account of autonomy, and his more recent notion of social freedom developed in Freedom’s Right, as providing a normative basis for critique.  The thesis also draws on the critical theory of law as developed by Jürgen Habermas and which is largely adopted by Honneth. This approach involves evaluating the legitimacy of law both in terms of its effectiveness as a form of social co-ordination and from the perspective of its normative validity. Another element of this theoretical understanding of law is the recognition of a necessary, internal relationship between the legitimacy of law and autonomy: that law simultaneously provides for and depends on the exercise of autonomy.  Although the form of freedom provided for by law is a major achievement of modernity, it involves an abstraction from the social contexts and intersubjective relations that are necessary for autonomy and social freedom. For Honneth, both theory and social reality are damaged when the form of legal freedom is mistakenly understood to comprise the whole of freedom. This insight will be central to the contribution that a critical theory of law can make to the question of the legitimacy of preventive justice.  The thesis also adopts Honneth’s model of critical theory that proceeds by way of a detailed, empirically informed examination of social institutions. Rather than attempting to constructively derive normative principles which are then applied to social reality, Honneth argues that theory must instead proceed by way of a social analysis: an examination of the norms and values that are already operative in social institutions.  Applying this method of normative reconstruction to the domain of preventive justice will involve a close analysis of existing laws in Australia and Germany that coercively restrict freedom on the basis of a person’s risk of reoffending. This examination reveals that these laws are designed and implemented on the basis that ‘liberty’, which largely corresponds to Honneth’s concept of legal freedom, is the fundamental normative principle. The result of this one-dimensional interpretation of freedom, and it’s correspondingly inadequate understanding of autonomy, is that these coercive preventive measures produce paradoxical effects that undermine both their normative validity and social effectiveness.  As an alternative, drawing on Honneth’s accounts of autonomy and social freedom, it is argued that a reconstructed concept of rehabilitation, focussed on promoting the development of offenders’ autonomy capacities and providing protection from institutionalised practices of misrecognition, can provide a basis for the legitimation of preventive justice.