This essay argues that a defining characteristic of modern law – the distinctive way in which it judges its addressees – will disappear. After sketching the distinctive nature of modern law's judgment, I show that it is part of a broader regulatory paradigm (rule or East Coast regulation) which is itself being superseded. Technological management is the alternative regulatory paradigm and I examine its rise and salience, showing how it might, in combination with the advent of ubiquitous computing, machine learning and artificial intelligence, cure a range of alleged pathologies that mark contemporary legal systems. The essay also demonstrates why technological management is now our regulatory default, its salience flowing from changes in the nature of our thinking about, and deployment of, power. The essay combines the work of Roger Brownsword, a leading contemporary jurist of technological management, with that of the world-renowned social theorist Michel Foucault.

In the context of a technology-driven algorithmicapproach to criminal justice, this paper responds tothe following three questions: (1) what reasons arethere for treating liberal values and human rightsas guiding for punitive justice; (2) is preventivejustice comparable to punitive justice (such thatthe guiding values of the latter should be appliedto the former); and (3) what should we make ofpreventive measures that rely not so much on rulesand orders, but on ‘technological management’ (wherethe preventive strategy is focused on eliminatingpractical options)? Responding to the firstquestion, a Gewirthian-inspired theory of punishmentis sketched – a theory that is, broadly speaking,supportive of liberal values and respect for humanrights. What makes this theory apodictic for anyhuman agent is that it demands respect for the veryconditions on which any articulation of agency ispredicated. With regard to the second question, weindicate how a Gewirthian view of the relationshipbetween punitive and preventive justice supports thelogic of referring to the principles that guide theformer as a benchmark for the latter; and we suggestsome particular principles of preventive justicewhere the restrictions are targeted at individualagents (whether in their own right or as members ofclasses). Finally, we suggest that, althoughtechnological management of crime changes thecomplexion of the regulatory environment in waysthat might be a challenge to a Gewirthian moralcommunity, it should not be categorically rejected.Crucially, technological management, like otherpreventive strategies, needs to be integrated intothe community's moral narrative and authorised onlyto the extent that it is compatible with thegoverning moral principles.