'The Regulatory State, The Management of Risk and Preventive Justice by Design'

Professor Karen Yeung, Director, The Centre for Technology, Ethics, Law & Society ('TELOS'). The Dickson Poon School of Law, King's College London

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What role does the state play in contemporary industrialised democracies? In particular, what is the point and purpose of the state’s task in regulating the activities of others?

In this lecture, I will explore these questions through an examination of the so-called ‘regulatory state’. Although the functions of the regulatory state were originally understood in terms of redressing market failure, I will argue that the task of the regulatory state has evolved as the concept of risk and the practice and discourse of ‘risk management’ has risen to prominence in organisational life so that its justification and function are now understood primarily in terms of managing risk.

This lecture will explore the potential implication of this turn towards risk management. Of particular concern is the way in which the language of risk and risk management systems is being used to justify more aggressive and intrusive forms of regulatory intervention in particular contexts. This, I will argue, is giving rise to the emergence of the ‘preventive state’, one that seeks to prevent harm before it materialises.

In this lecture, I will explore the defining characteristics of the preventive state, focusing on the attractions of technological ‘design’ as an instrument for securing its preventive ambitions. The use of ‘design’ based techniques of control (that is, techniques which intentionally utilise design to shape the environment and the things and beings within it with the goal of directed designated activities towards publicly articulated ends), not only includes familiar strategies that focus on shaping the urban environment, but extends to the use of biological forms of control, including those which act directly on the physiological functioning of the human mind and body.

Although the use of design-based instruments of harm prevention has understandable attractions, it is far from unproblematic. Accordingly, I will suggest that the use of design-based approaches to harm prevention requires critical scrutiny. For liberal democratic states, the challenge is to clarify and articulate the content and contours of preventive justice: identifying both the extent to which liberal democratic states can legitimately pursue the preventive endeavour and the conditions under which resort to design-based techniques by reference to public protection is consistent with our moral, democratic and constitutional principles.