The Boundaries of the Criminal Law by R.A. Duff Lindsay Farmer S.E. Marshall Massimo Renzo & Victor Tadros

Author:R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo & Victor Tadros
Language: eng
Format: epub
Published: 2014-05-23T04:00:00+00:00

VIII Conclusions

In this chapter I have explored the relationship between proactive forensic profiling and proactive punishment. The main point is that the central legal tenets that constitute and restrict the state's competence to punish may be an affordance of a specific socio-technical infrastructure. Requirements like actus reus, wrongfulness, and mens rea—introduced in the twelfth century by Pierre Abelard in hisEthics or Scito te ipsum—fit the distantiation, delay, and hesitation afforded by writing, compared to orality. Facing the novel socio-technical infrastructure of proactive profiling raises the question of the extent to which these requirements will survive, and the related question how we should design these novel architectures of knowledge production in a way that sustains the possibility of reflection, intention, and calling a person to account for actions performed.

Avoiding problematic Cartesian fantasies of a voluntaristic mentalism as well as a deterministic empiricism, I have argued that profiling technologies build on the underdetermined nature of human action. They demonstrate how our behaviours correlate in numerous ways with those of others, without thereby providing certainty about the future. They deliver probabilities or even plausibilities, but they do not rule out novel possibilities not disclosed by the logic of high-tech computations. As information theory philosopher Ciborra (p.137) has saliently described in his Duality of Risk, the risk of actuarial risk analysis is that ‘what is “real” is what technology is able to define and represent’,61generating a new type of ignorance concerning risks that are not part of the equation. Alternative correlations—undetected by proactive profiling—are thus cause for concern, but are also cause for celebration. They form the niches of creative freedom that are preconditional both for calling a person to account where she violated the criminal law and for contesting the proactive criminal profile that one is calculated to match.

Instead of rejecting proactive forensic profiling, therefore, I think we should take it seriously on its own grounds, thereby rejecting proactive punishment as incompatible with the knowledge claims inherent in profiling. At the same time, we should not turn a blind eye to the fact that the architecture of proactive forensic profiling could indeed afford a form of proactive criminalization. This requires us—criminal law philosophers, criminal lawyers, legislators, police, computer scientists, and citizens—to engage actively in the process of designing and organizing forensic profiling in a way that allows citizens to become aware of the profiles they match, in order to change their ways and/or to contest a profile's application.

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