Trust, Distrust and Reassurance: Diversion and Preventive Orders Through the Prism of Feindstrafrecht

Abstract

This article considers Gunther Jakobs' controversial theory of ‘the criminal law of the enemy’ (Feindstrafrecht). Taking an interpretive perspective that is anchored in social theory, rather than normative principles, the article traces the implications of Jakobs' central claims concerning trust relations in society as mediated by the criminal law and endeavours to articulate their relevance for English law, particularly as regards the growing role of diversion and preventive orders in criminal justice. It identifies the various ways in which these current alternatives to the criminal sanctioning process link with neo-liberal technologies of government by connecting Jakobs' thoughts on trust with key themes in the Foucauldian governmentality literature and recent research on the ascent of auditing as a meta-regulatory mechanism.