Henrique Carvalho

This paper engages with dialectical critical realism to reflect on the problems and limitations regarding our contemporary justice practices and understandings. Our starting point is the idea that contemporary approaches to justice in liberal democratic settings are predominantly hostile; they are overly focused on episodic injustices, and dominant forms of addressing these injustices are pervaded with punitive logics. This pathological character of contemporary justice is linked to how it is socially experienced, imagined and reproduced as an absent presence: something that is already ‘there’, taken for granted, and only relevant when it is seen to be violated. Against this, we argue that concrete justice is mostly lacking in our social world, and that to tackle this lack, we need to reimagine and re-experience justice as a present absence. The paper then suggests that this alternative, lived sense of justice can be pursued through an engagement with the dialectics of belonging.

Through a theoretical examination of the preventive turn in criminal law and justice which has gained momentum in Anglo-American criminal justice systems since the late-twentieth century, The Preventive Turn in Criminal Law demonstrates how recent transformations in criminal law and justiceare intrinsically related to and embedded in the way liberal society and liberal law have been imagined, developed, and conditioned by its social, political, and historical context. Henrique Carvalho identifies a tension between the idea of punishment as an expression of individual justice, andprevention as a manifestation of the need for security and the promotion of welfare. Tracing this tension back to an intrinsic ambivalence within the modern conception of individual liberty, which is both repressed and preserved by liberal conceptions of responsibility and punishment, Carvalhoproves that as long as this ambivalence remains unexamined, liberal law has the potential to both promote and undermine individual justice.Engaging with the dominant contemporary literature on criminal law, prevention, risk, security, and criminalisation, this volume deploys a theoretical perspective developed through a critical analysis of both classical and contemporary works of social and political theory. The book reveals that thepervasiveness of prevention in 21st century criminal justice systems represents not only the consequence of new and unprecedented features of contemporary politics and society, but also the manifestation of essential aspects of the liberal legal and political tradition.

This paper critically examines our relationship with justice in contemporary western liberal settings, with a particular focus on why our pursuit of justice is intimately entangled with punitive logics. It does so by defining this approach to justice as predominantly pathological, in the sense that it follows a logic that is akin to that displayed in our contemporary sensibilities regarding bodily pain. We deploy the concept of ‘dys-appearance’ used by Drew Leder in the context of his theory of embodiment to discuss how, in western liberal societies, justice is primarily experienced and paid attention to when it appears negatively as a phenomenon; that is, we only become conscious of justice in our lived experiences through the painful and episodic experience of injustice. This phenomenological quality of justice, we argue, is intrinsically linked to how the pursuit of justice in these settings predominantly takes a hostile, punitive aspect.

In this paper, I provide an extensive examination of the political theory of Thomas Hobbes in order to discuss its relevance to an understanding of contemporary issues and challenges faced by criminal law and criminal justice theory. I start by proposing that a critical analysis of Hobbes’s account of punishment reveals a paradox that not only is fundamental to understanding his model of political society, but also can offer important insights into the preventive turn experienced by advanced liberal legal systems. I then suggest that the main importance of an analysis of Hobbes’s theoretical framework lies in how it reveals an inextricable and problematic link between individual autonomy and political authority in the normative conception of the modern liberal state, grounded on the notion of insecurity. By exploring how legal scholars have recently engaged with aspects of this problematic in criminal law and punishment posed by Hobbes’s work, I argue that the paradox found in punishment is such that it both legitimates the criminal law and undermines its normative aspirations, particularly the possibility of securing individual liberty against the power of the liberal state.