Criminal law is being broadened from its normative and moral response to wrongdoing to include the capacity to act as a preventive force. As well as reacting to crime that has been committed, it also attempts to control the risk of future crime. In so doing, preventive criminal law makes use of hybrid and retrospective legislation, while reversing or lowering burdens of proof if these are thought to unfairly advantage offenders/defendants, raising important human rights issues. We argue that this emphasis on controlling risk was the response to issues of uncertainty and insecurity generated by post-1970s economic and social restructuring. Where, though, do these criminal law characteristics of “risk society” now sit, given the contemporary rise of populist politics? Populism promises an end to risk and its attendant uncertainties and anxieties, but it is already extending rather than reversing the preventive capacity of criminal law. This is because populism continuously needs to find new victims that it embraces and pledges to defend against their assailants, law-breakers or otherwise, real or imagined. The focus of risk control thus embraces new populations—refugees, asylum seekers, immigrants of all kinds, legal or otherwise. Conventions such as the rule of law and the separation of powers that might previously have limited such interventions are brushed aside as outmoded examples of elitist thinking. Instead, security is prioritized over residual concerns about due process, while also prioritizing public protection over individual rights.
Contrary to the assumption that authoritarian authorities are insensitive to popular demands for justice, the Chinese penal regime has been highly attentive and responsive to public sentiments since its early days. As an instrument for the authorities to govern the country in the name of the people, capital punishment functioned as a tool for political struggles in Maoist China and later served as a tool to fight crimes in Deng’s reform era. Nowadays, the demands of the masses for revenge, justice and equality have been translated into a fervent passion for capital punishment for certain offences and offenders. By reaching out to satisfy these public demands and sentiments, the party-state hopes to enhance its political legitimacy. In this sense, the death penalty serves as a populist mechanism to strengthen the resilience of the authoritarian party-state by venting public anxiety and resentment towards social problems created in the processes of China’s rapid modernization and social fragmentation.
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