The Preventative State

Question: What's your legacy? 

Alan Dershowitz: My current life work has been to try to find the jurisprudence that constrains what I call the “preventive state.” The state now is moving much more from reacting to violence – deterring people from committing violence by punishing those who’ve already done it – to a proactive, preemptive, preventive mode. Moving in. Stopping people from doing it. Preventive detention such as that which exists in Guantanamo [Bay, Cuba] and many other places around the world today. Preventive intelligence gathering. The use of cyberspace and picking up of conversations in space. The use of preventive interrogation, including torture.

All of these things are part of one of the most important and yet unwritten about phenomenon in the world. The preventive state. The state moving in early. Trying to anticipate. The state moving in against sexual predators. The state moving in against potential terrorists.

And what I’ve been trying to do is construct a jurisprudence for that phenomenon. I became interested, for example, in affirmative action. I support affirmative action, but I didn’t like the fact that it didn’t have a jurisprudence.

University admissions officers had too much discretion in how they would formulate programs for admitting minorities, and I was working very hard to try to construct a jurisprudence to constrain that use of power; the use of power to prevent and censor speech which is becoming more and more problematic as the Internet, without publishers, grows.

I am trying to formulate a jurisprudence for that. So my life work has been taking areas of power and subjecting them to regulation and constraint.


Recorded on: June 12, 2007

Dershowitz discusses his work in crafting the jurisprudence behind the 'preventative state'.

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