Abstract

The essay "Practical Implications of 'A Theory of Preventive Confinement': Replies to Some Objections" replies to four criticisms of the theory developed in the first essay. The discussions amplify the background theory from which my solution to the problem of preventive confinement emerged, clarify my position on the status of gun control, curfew and quarantine laws, re-emphasize the narrow scope of the original arguments against restrictions which incapacitate individuals and the important role of the 'public justification' in determining the status of particular restrictions on liberty, and develop my views on when and why it is permissible to incapacitate individuals who are in the process of performing dangerous or criminal acts. ;In the essay "The Principle of Positive Government," I discuss Scanlon's defense of the Millian Principle and the Principle of Limited Government --legitimate government authority is limited to those powers over the individual that citizens can grant to the state and yet still view themselves as equal, rational, and autonomous. Attention is focused on a weakness in his argument--his failure to show why autonomy is important. An attempt is made to rectify this point by proposing a more complete concept of autonomy based on Kant's view of the person and by developing three additional Millian-type principles. Then, I argue that the principle of positive government--a government is legitimate only if it takes reasonable steps to ensure that its citizens are and will remain autonomous--can be derived from PLG and suggest ways in which the former principle could be applied. ;I attempt to challenge the charge of irrationality directed against anyone suggesting that, when preventive confinement is the only means of preventing certain extreme and clearly undesirable consequences, justice nevertheless requires us to refrain from acts of preventive confinement. I argue that persons, for whom the mere recognition that certain acts are required by law does not settle the issue of whether they will perform those acts, cannot concede to the state a right to confine them on the basis of their merely predicted violations of the law. Instead, they must insist on the principle of preventive incapacitation: a justification for imposing a legal restriction R on a person P cannot appeal to the fact that imposing R on P has the consequence of, temporarily or permanently, rendering P incapable of performing a merely predicted offense against legal rules. ;In "A Theory of Freedom of Expression," Thomas Scanlon introduces a compelling conception of the autonomous person. The three essays contained within further develop and extend the application of Scanlon's notion of autonomy. ;The title essay considers the legitimacy of preventing dangerous or criminal acts by means other than prohibition and punishment. Of specific interest is the status of preventive confinement--the practice of incapacitating allegedly dangerous persons in order to prevent them from performing certain predicted acts. The central issue is whether individuals who view themselves as autonomous can give their government the power to incapacitate them as a means of preventing their merely predicted acts. And if they can grant the government this power, when can they do so?