par Pieret, Julien 
Référence Contests in Security and Risk: Releasing the Legal Imagination (27/28 janvier 2012: Osgoode Hall Law School – York University - Toronto - Canada)
Publication Non publié, 2012-01-28
Référence Contests in Security and Risk: Releasing the Legal Imagination (27/28 janvier 2012: Osgoode Hall Law School – York University - Toronto - Canada)
Publication Non publié, 2012-01-28
Communication à un colloque
| Résumé : | While it is central in the social science’s analysis on the concept of risk, the epistemological debate on the different approaches of risk has been largely absent from the legal scholar addressing the legal regulation of risk. Traditionally, the epistemological debate crystallizes on the opposition between a realistic approach to risk - the risk exists independently of strategies to identify and manage it - and a constructivist view of risk - the risk has no reality in itself, its identification and management contribute to its co-construction. Ulrich Beck, from his early writings, but even more in his later works, went up a third way, alternately described as a “weak constructivism” or a “pragmatic realism”, which is to consider the danger resulting from risk as real, while insisting on the constructed dimension of the risk’s identification through socially situated phenomena of perception. According to Beck, this hybrid perspective allows to remove, on one side, the relativistic temptation of the radical post-modern constructivism, on the other side, the naïve simplicity of realistic approaches on risk. Over the past decade, the concept of risk entered vigorously the development and implementation of crime-fighting policies. The question raised by this paper is to identify the epistemological assumptions underlying the use of risk in this specific field. The hypothesis to be developed is to think that the approach of the criminal phenomenon in terms of risk leads to the revival of a strong realistic approach. Through the analysis of technical devices such as a.o. CCTV or DNA test and their legal framework, we can realize that crime is perceived as a risk existing regardless of the devices which identify and manage it. So, it seems to be denied that these devices strongly contribute to the construction of what is considered as risk. In conclusion, far from leading to a reflexive approach that Beck calls with its concept of “late modernity”, the persistency of risk in the design of criminal policies turns out to be “hyper modern” in so far as it revives the project of a criminological positivism as emerging in the late 19th century. |
