Workshop on Risk and the Law
On June 3rd-4th 2022 we hold the third workshop of our Varieties of Risk Project. The workshop brings together philosophers and legal theorist to discuss the topic of "Risk and the Law". The conference will be in person and hosted by the University of Edinburgh in collaboration with the Edinburgh Centre for Legal Theory and the Edinburgh Legal Theory Research Group. If you like to attend please contact Giada Fratantonio
Programme
3rd June 2022 @ Raeburn Room (Old College) Accessibility Info
9.15 – 10.45 Antony Duff (Stirling)
11.00 – 12:30 Aness Webster (Durham)
12.30 Lunch and Coffee catered
2.00 – 3.30 Navraj Singh Ghaleigh (Edinburgh Law School)
3.45 – 5.15 Sandra Marshall (Stirling)
4th June 2022 @ 40GS; Lecture Theatre A (Main campus in 40 George Square) Accessibility Info
9.00 – 10.30 Katherine Puddifoot (Durham)
10.45 – 12.15 Lewis Ross (LSE)
12.30 Lunch TBD
2.30 – 4 Melissa Hamilton (Surrey)
4 – 5 Roundtable discussion
Abstracts
Antony Duff Risk, Responsibility, and Pre-Trial Detention
Many people in prison are there not because they are serving custodial sentences after being convicted of an imprisonable crime, but because they have been remanded in custody whilst awaiting trial (this is true of about 25% of those in Scottish prisons). The justification of such detention is essentially preventive: it is necessary to avert the risk that the defendant will fail to appear for trial, or will interfere with witnesses, or will commit other kinds of offence, if left free pending their trial. But since these detainees have not been convicted, their detention seems inconsistent with the presumption of innocence, and with the liberal principle that the state should respect the freedom and autonomy of responsible citizens. In this paper I will discuss, and reject, some current attempts to justify pre-trial detention, and then offer a different, more plausible suggestion, based on the distinctive responsibilities that define the role of criminal defendant: these responsibilities can justify imposing special constraints, even including preventive detention, on those who are awaiting trial. I will also discuss the kinds of evidence that can properly ground a detention-justifying prediction of risk.
Aness Webster Proof Paradoxes, Agency, and Stereotyping
Many have attempted to justify various courts’ position that bare or naked statistical evidence is not sufficient for findings of liability. I provide a particular explanation by examining a different, but related, issue about when and why stereotyping is wrong. One natural explanation of wrongness of stereotyping appeals to agency. However, this has been scrutinised. In this paper, I argue that we should broaden our understanding of when and how our agency can be undermined. In particular, I argue that when we take seriously that our agency is exercised in the social world, we can see that stereotyping can and does undermine our agency by fixing the social meaning of our choices and actions as well as by reducing the quality and the kinds of choices that are available to us. Although this improves the agency-based explanation, it must be noted that undermining agency is not an overriding reason against stereotyping. Much depends on the balance of reasons that take into account moral stakes involved in a case of stereotyping. This results in a messier picture of when and why stereotyping is wrong, but I argue that this is a feature, not a bug. I end by applying this agency-based explanation to cases that have motivated the so-called Proof Paradoxes.
Navraj Singh Ghaleigh tba
Sandra Marshall You only Have Yourself to Blame: Victims, Self-Endangerment, and the Criminal Law.
Victims are not always passive subjects of harm: sometimes those who suffer misfortune have, we may reasonably say, ‘brought it upon themselves’. They may have been e.g. reckless, taken unnecessary risks, been merely careless, or over-confident. We may then have less sympathy for their suffering even though we do not, and should not, refuse assistance if they are in need. For the most part, however, the criminal law construes the victim of crime as the passive object of wrongdoing. This paper will consider how and in what ways the criminal law might recognise the agency of victims and the contribution they make to the harms they suffer as the victims of crime. Is there e.g. room in the criminal law to something comparable to the civil law idea of ‘contributory negligence’? Do citizens have some responsibility not to expose their fellow citizens to temptation?
Katherine Puddifoot Law-Making as a Risk to Epistemic Agency
Abstract: This talk describes how law-makers who create laws that inflict trauma on others can be complicit in a form of institutional epistemic injustice, with devasting consequences. It focuses on how traumatic experiences inflicted by laws can impede or damage the epistemic agency of those who experience the trauma. The laws can create conditions in which an individual’s ability to remember the past is impeded, in which they are strongly incentivised to lie, and in which their epistemic horizons are significantly reduced. Those directly impacted by the laws can experience distributive epistemic injustice, epistemic exclusion, and something akin to agential epistemic injustice. These points will be demonstrated via the case study of asylum law. It will be argued that asylum seekers are vulnerable to significant epistemic wrongs, which should be counted as epistemic injustices, due to the nature of asylum laws.
Lewis Ross Criminal Proof: Fixed or Flexible?
Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach which uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of proof, instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes which attract more severe punishments. This proposal is somewhat revisionary but accords with a plausible theory concerning the epistemology of legal judgements and the role they play in society.
Melissa Hamilton The Future of Artificial Intelligence in Predicting Crime
In criminal justice, the practice of predicting who will commit a crime is a long-standing tradition. Historically, risk predictions were based on the instinct or whim of a human decisionmaker. Predictions may inform such outcomes as whether to arrest, release a person pretrial, sentence a convicted individual to a term of imprisonment, or release early an incarcerated prisoner. Today, algorithms developed from scientific studies on what factors predict offending are deployed across jurisdictions to inform such decisions. The great hope is that this form of AI offers more accurate predictions while avoiding the downsides of human biases. But can the AI turn in criminal justice offer transformational reforms to reduce prison populations without sacrificing public safety? Or does the AI turn present a cautionary tale when the AI can result in unintended consequences such as recreating racial inequalities if minorities are systematically assigned higher risk predictions? This presentation explores relevant issues, with examples from original research into AI-based risk tools used in the field. Lessons learned include warnings that AI cannot entirely bar the infiltration of biases when the algorithms are developed on already biased big data. Human input is still required to ensure that AI provides value while reducing potential unfairness to individuals. These lessons matter as decisions in a criminal justice context have significant impacts on humans in terms of their interests in privacy, freedom, and equality.