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Date Trend snippet:
23 June 2021
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2020
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Balancing tests as a tool to regulate Artificial Intelligence in the field of criminal law
Criminal Law, as a science, should nourish from the contributions that other sciences have to offer while preserving its constitutional structure. There is no proper regulation to implement AI globally, but this cannot lead to a sort of unlimited permission for its implementation with no control at all. A balancing test is a method of great utility when determining if the affectation of an individual right becomes disproportionate in the pursuit of a collective good. The concept of proportionality is the most important here, consisting of the principles of suitability, necessity, and of proportionality in the narrower sense.
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Abstract The advent of new technologies entails undeniable benefits, although with intrinsic risks. Having analyzed past experiences, this paper proposes that Criminal Law, as a science, should nourish from the contributions that other sciences have to offer, preserving, however, its constitutional structure. Regarding Artificial Intelligence, specifically when the implementation of AI-rigged systems collides with citizens’ rights, the importance of judicial control in concrete cases is emphasized, as well as the way this is done by applying a filter of proportionality in which the rights and the principles in conflict are weighed. Finally, it analyses how judicial control can be applied in the face of the implementation of some AI systems commonly used in security and in jurisdictional areas.
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Criminal Law and the advent of Artificial Intelligence It is observed that, in both experiences, the legal science had to face scientific- empiric advances of foreign sciences, forcing it to reconsider central matters of the system, the consequences of which were remarkable. Despite the result of the first experience, the emergence of reductionist positions about human behaviour is outstanding. These positions, supported now by neurosciences, propose a Legal System, no longer of punishments based on culpability, but of treatment measures which, at some point, recalls the Marburg Program.25 Having adopted foreign conclusions and transferring them to the legal system, as Winfried Hassemer claimed, it was a categorical mistake.26 Notwithstanding this, it would have also been a mistake to disregard the scientific advances and diagram a legal science completely unconnected to them. In this sense, we understand that the path taken by the third position, which proposes the use of raw data to achieve legal purposes, is the most plausible option. Our position in respect to AI is rooted to this idea: scientific advances should be adapted to Criminal Law27 and not the other way around. That is to say, these should be integrated in such a way that they would not hinder the legal foundations which were built around the respect for Human Rights.28
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The balancing test found its origin as an argumentative technique of proportionality developed by the German Constitutional Court40 and emigrated afterwards to other constitutional courts to finally establish itself as an instrument of excellence in the international system of Human Rights. It is a method of great utility when determining if the affectation of an individual right becomes disproportionate in the pursuit of a collective good. It imports a way of materialization from the proportionality principle.41 This principle, which went up as one of the pillars of the modern Rules of Law42 and also as a cornerstone of numerous theories of Criminal Law,43 must be, however, applied cautiously since, as Günther Jakobs points out, it is too much of a formal concept,44 which should be filled with the valuations at stake and, in that sense, allowing the entrance of the operator’s subjective questions.45 Regarding the balancing test, the most technical development was made mostly by Robert Alexy, who outlines the “weighing formula.” Alexy believed that proportionality had three sub-principles: the principles of suitability, of necessity, and of proportionality in the narrower sense.46 The latter is the one which concerns us most since it refers exclusively to the legal possibilities. The concept of balancing arose in this sub-principle. According to this theory, in front of fundamental rights, the rule states that: the greater the degree of nonsatisfaction of, or detriment to, one principle, the greater must be the importance of satisfying the other.47
