The Theory of Vulnerable Autonomy and the Legitimacy of the Civil Preventative Order

30 Pages Posted: 26 Feb 2008

See all articles by Peter Ramsay

Peter Ramsay

London School of Economics - Law Department

Abstract

Criminologists and criminal law theorists have explained the ASBO and the terrorism Control Order as purely instrumental measures in the service of crime control. The political consent enjoyed by these new Civil Preventative Orders has for the most part been regarded in the expert literature as an example of penal populism which has thrown aside sound legal principles. This paper, by contrast, investigates a possible normative basis for these orders. It first analyses and reconstructs their substantive law, arguing that they impose a liability for manifesting a disposition which fails to reassure others. It then investigates the basis for this liability in official anti-social behaviour and counter-terrorism policy, both of which emphasise the vulnerability of normal citizens. The paper then proposes that the 'vulnerable autonomy' which these policies and legal instruments seek to protect is an axiomatic feature of the political theories of 'advanced liberalism'. Finally, the claim made by normative criminal law theorists that Civil Preventative Orders are illegitimate is reconsidered in the light of the theory of vulnerable autonomy.

Suggested Citation

Ramsay, Peter, The Theory of Vulnerable Autonomy and the Legitimacy of the Civil Preventative Order. LSE Legal Studies Working Paper No. 1/2008. Available at SSRN: https://ssrn.com/abstract=1091782

Peter Ramsay (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London, WC2A 2AE
United Kingdom

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