When Risk and Populism Collide

Abstract

From the 1980s, risk-driven penal arrangements have come to play an increasingly significant role in the jurisdictions of the main Anglo-American societies. In various ways, these innovative measures have undermined the framework on which criminal law and punishment had been built in modern society. Their emphasis is on efficient risk protection, if necessary at the expense of previously unbreachable constraints such as nulla poena sine lege. In such ways, these measures can be seen as helping to sustain the economic and social reconstruction of these societies during this era—a way of managing the divisions and inequalities that have come with this. While individuals have been expected to take more responsibility for their own risk protection, these interventions demonstrate its willingness to take action against those risks that are seemingly uninsurable against and likely to cause irreparable harm. Prioritizing public safety over individual rights becomes a way of bolstering social cohesion while demonstrating that governments are still steering the ship of state. But what happens when risk collides with the populist forces that have recently surfaced? These demand an end to risk and insist that life should be knowable and predictable again: security of jobs and wages and the restoration of a homogeneous national identity. As a consequence, the category of those thought to put public safety at risk has broadened to include immigrants, asylum seekers, refugees and so on. The likely outcome is that criminal law and punishment will become still more diverse and amorphous while soaking up these new suspect populations. Furthermore, the anti-science and anti-Establishment thrust of populism is likely to further cement in the redefinition of human rights that risk control has been engineering: from protecting individual rights against excesses of state power, to using such excesses to protect public safety from those who put this at risk.