Preventive justice, the courts and the pursuit of legitimacy

Abstract

The role of the courts in the preventive justice enterprise is particularly important from a rule of law perspective. They can provide an institutional check on the exercise of actions that are potentially highly disruptive or invasive. This chapter explores this tension and, particularly, what preventive justice might mean for the legitimacy of the courts as an institution. Rather than exploring the operation or constitutionality of such measures, this chapter unpacks the delicacy of the courts' role and the legitimacy crisis that preventive justice potentially poses. The involvement of the judiciary in reviewing preventive justice measures, such as control orders, is clearly important. The courts can provide an independent and impartial check on the exercise of powers which have the potential to undermine individual liberty in a raw sense. Unravelling the implications for judicial legitimacy is the key, as the judiciary is increasingly playing central roles in preventive justice regimes.