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Research Article Volume 14 Issue 1
Preventive construction and rule of law constraints in counter-terrorism criminal law under the paradigm shift of risk governance: a comparative study on legal logic and constitutional limits
Jiang Na, Yang Ningyan
Received: January 30, 2026 | Published: February 27, 2026
Citation: Na J, Ningyan Y. Preventive construction and rule of law constraints in counter-terrorism criminal law under the paradigm shift of risk governance: a comparative study on legal logic and constitutional limits. Forensic Res Criminol Int J. 2026;14(1):37-43. DOI: 10.15406/frcij.2026.14.00464
Abstract
Against the backdrop of the evolving global terrorist threat, the function of criminal law is undergoing a profound transformation from “ex post facto retrospective punishment” to “ex ante preventive intervention.” This “preventive turn” is particularly pronounced in the field of counter-terrorism, where criminal law is being reshaped into a frontline tool within the national security risk governance system. While this functional expansion enhances the state’s capacity for early intervention against terrorist threats, it also creates deep tensions with core rule-of-law values such as legality (nulla poena sine lege), culpability, and the principle of proportionality, giving rise to a preventive governance paradox where “law is both a solver of systemic risks and potentially their source.” This paper constructs a dual analytical framework of “risk governance and constitutional constraints” to systematically examine the underlying legal logic and institutional operation of the preventive construction of counter-terrorism criminal law. Through a critical comparative analysis of the American expansive model, the German proportionality-controlled model, and the Chinese statepreventive model, this study reveals that preventive criminal justice is not inevitably destined for limitless expansion but is rather a product of specific institutional choices balancing security needs and constitutional guarantees. The research finds significant differences in the institutional constraints on preventive power across different legal jurisdictions, which profoundly shape the normative boundaries and practical forms of counter-terrorism criminal justice. Employing a combined methodology of legal dogmatic analysis, comparative law research, and empirical case study, this research contributes at both theoretical and practical levels. Theoretically, it achieves a deep integration of risk society theory with constitutional and criminal law principles, offering a new theoretical perspective for understanding the normative nature of preventive criminal law. Practically, through an in-depth analysis of representative cases from multiple jurisdictions, the paper not only elucidates the operational mechanisms of preventive criminal law but also constructs a normative framework of “structurally constrained prevention” for China’s legal system. This framework advocates for precise construction of legal elements at the legislative level, refined review at the judicial level, and strengthened safeguards at the procedural level, thereby channeling the exercise of preventive criminal power into the institutional track of the rule of law, and providing a sustainable path for counter-terrorism governance under the conditions of a risk society that combines security effectiveness with rule-of-law guarantees.
Keywords: preventive criminal law, counter-terrorism legal theory, risk governance, constitutional constraints, principle of proportionality, structurally constrained prevention
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