Democratic limits to preventive criminal law

Recent criminal legislation has been characterized by offences intended to pre-empt the causing of harm by criminalizing purely preparatory acts, possession or breach of preventive orders. The chapter argues that although this legislation is sometimes thought of as an illiberal outcome of democratic politics, it is better understood as resulting from the pursuit of a liberal principle to the point of undermining the possibility of collective self-government. The chapter first examines the ambiguous position of these offences in liberal criminalization theory. Then it is argued that the political independence of the citizenry from government is a precondition of truly democratic representation and that the pre-emptive offences violate the conditions that ensure that political independence.