Should Criminal Law Focus Solely on Preventing Risks?

The primary function of criminal law has long been the protection of society from harmful actions. By deterring, punishing, and preventing behaviour that endangers others, criminal law ensures social peace and order. However, in recent decades, there has been a noticeable shift toward what some scholars call the preventive turn in criminal law. Rather than simply responding to past wrongdoing, modern criminal law increasingly focuses on preventing risks and potential future harms. This trend raises the question: should criminal law only be concerned with preventing risks, or does this approach come at too high a cost?

The Rise of Risk Prevention in Criminal Law
Historically, criminal law was primarily concerned with punishing individuals for intentional wrongdoing. The principle of mens rea (a guilty mind) was central, requiring that a person not only commit a wrongful act (actus reus) but also have the intent to do so. Over time, however, criminal law has evolved, and risk prevention has become an essential feature of legal frameworks worldwide.

This shift is partly a response to modern society's increasing complexity. With advances in technology, environmental concerns, terrorism, and other global challenges, states are facing new types of risks. Laws have emerged that target behaviours or conditions that, while not always resulting in immediate harm, pose significant threats to public safety. For instance, strict liability offences, where intent is irrelevant, are now common in areas like environmental protection, public health, and national security. These laws aim to prevent risks before they materialise, emphasising deterrence over punishment for moral wrongdoing.

The Appeal of Preventive Criminal Law
The appeal of a preventive approach to criminal law is clear. By focusing on risk, the law can address emerging threats before they lead to harm. It provides a framework for addressing behaviours that, while not inherently harmful, create conditions for future damage. For example, enforcing strict liability for environmental violations forces corporations to exercise a higher level of care, even if the harm has not yet occurred. Likewise, laws targeting terrorism, drug trafficking, and public health prioritise risk management to protect society from significant harm.

This approach aligns with the state's responsibility to ensure the safety and security of its citizens. Criminal law, from this perspective, is not just a reactive tool but a proactive one. It allows the state to respond to public demand for security in an increasingly uncertain world. In essence, by preventing risk, the law can help maintain social peace and public confidence in the legal system.

The Costs of Overemphasising Risk Prevention
While the preventive turn in criminal law offers benefits, it also raises concerns. Critics argue that focusing too heavily on risk prevention undermines core principles of justice. One of the most significant criticisms is that it erodes the requirement of mens rea. In strict liability offences, individuals can be punished for their actions even if they were unaware that what they were doing was wrong. This approach challenges the traditional notion that criminal liability should only attach to those who intentionally commit wrongful acts.

This shift raises the risk of punishing individuals who are not morally culpable. For example, a person who unknowingly violates a regulatory law might face criminal sanctions even though they had no intent to break the law. The absence of a requirement for intent in these cases means that criminal law becomes less about moral wrongdoing and more about enforcing standards of behaviour. As a result, criminal liability becomes more about risk management than about individual responsibility and blameworthiness.

This has broader implications for fairness. If criminal law's purpose is primarily to prevent risks, it may start to punish people for actions they could not reasonably foresee as wrong. In doing so, it undermines the principle of autonomy, which holds that individuals should be free to make their own choices as long as they do not harm others. Criminal law traditionally respects this freedom by punishing those who knowingly or recklessly choose to violate the law. Risk-based criminal law, however, shifts the focus away from individual freedom and toward collective security.

Balancing Prevention and Justice
The preventive approach in criminal law undoubtedly has its merits, especially in a world where new risks, from cybercrime to global terrorism, pose significant challenges to public safety. However, it must be balanced with considerations of justice and fairness. Criminal law should not simply become a tool for managing risk at the expense of punishing intentional wrongdoing.

A fair legal system must strike a balance between preventing harm and respecting individual rights. This balance can be achieved by limiting the use of strict liability offences to cases where the risk to public safety is exceptionally high, such as in areas of environmental regulation, food safety, or terrorism. In these cases, the law can justify imposing liability without intent because the potential harm is so severe that it outweighs concerns about individual fairness.

At the same time, criminal law should remain focused on moral wrongdoing. The principle of mens rea should continue to play a central role in most criminal cases, ensuring that people are only punished for intentional, reckless, or negligent actions. This balance would allow criminal law to fulfil its role of protecting society from risks without sacrificing the core principles of justice, fairness, and individual responsibility.

While risk prevention is a necessary and valuable function of modern criminal law, it should not be the law’s sole focus. A legal system that overemphasises risk prevention risks punishing individuals who are not morally responsible for their actions. The challenge for modern criminal law is to find a balance between the need to prevent harm and the obligation to ensure that individuals are only punished for intentional or reckless wrongdoing. Criminal law should ultimately serve as both a shield that prevents harm and a sword that punishes those who intentionally violate society's norms.