A. Introduction—the RAF’s Last Captive
At the age of 93, Horst Herold was finally allowed to return to his Nuremberg home. In the years leading up to 2017, the former president of the Bundeskriminalamt (“BKA”) (Germany’s Federal Criminal Police Agency) called himself “the last captive of the Red Army Faction”Footnote 1 (“RAF”)—a far-left militant organizationFootnote 2 that had assassinated key figures of West German public life in the 1970s—and Herold ranked high among their targets.Footnote 3 Yet, the RAF did not order Herold’s “capture.” It was decreed at a much higher level—by the German state. In 1977, the authorities required Herold to move into an apartment on the BKA’s premises as a safety measure.Footnote 4 Four years later, when he was forced to retire, Herold had to relocate to army barracks in Upper Bavaria and was required to reimburse the Federal Republic of Germany for the property on which his prefab house was constructed. Herold called this domestic prison his “clay pit”Footnote 5 —the house was surrounded by earthen walls and a fence. Herold lived there for almost thirty-five years. He died in 2018, a year after he was finally able to return to Nuremberg.
Herold’s quip about being the last captive of an essentially dormantFootnote 6 terror group was not mere self-effacement. Rather, deconstructing the difference between pursuer and pursued constituted a fundamental part of Herold’s theory of policing. In a controversial interview in 1980,Footnote 7 Herold described a “reciprocal process of learning” between the RAF-terrorists and himself. He felt that the “quarrel I have with terrorism connects me more intensely with the terrorists than with the rest of society.”Footnote 8 Reportedly, Herold considered Andreas Baader—one of the RAF’s leaders—to be the only person who had ever understood him and himself in turn the only person who had ever understood Baader.Footnote 9 In Herold’s view, to anticipate one’s enemies’ actions, one had to identify with them. But this did not suffice: Herold would need to make use of technology to close the gap between his divinations and practical police work.
In this article, we will explore ideas of policing and technology from the 1970s to this day. Horst Herold’s contributions will be our guiding perspective. His ideas sprung from his commitment to cybernetics, a modern Universalwissenschaft (universal science) promising technological control and social engineering in the face of an increasingly chaotic era. In the larger intellectual world of German police law and legal theory, Herold may have been a minor figure.Footnote 10 Still, he embodied the foundations, practice, and contradictions of German administrative and police law as few others did, having both developed a theory of policing and having tested this theory in practice using his new technological means. Herold followed modern technological and theoretical developments from early on.Footnote 11 He published extensively; his essays are marked by the attempt to contribute to ongoing discussions in a substantial manner and to provide new ideas. A significant portion of Herold’s writings were published in police journals.Footnote 12 That makes them particularly interesting as they are an instance of someone within the state and police apparatus addressing his colleagues—his adversaries within and without the agency in order to convince them of his ideas, as well as the wider jurisprudential discourse. In that sense, the essays can be assumed to significantly reflect internal conceptions and discussions of policing,Footnote 13 influence the practice of policing, and represent a line of thought in legal discourse of the time.
Herold’s thought and practice coincided with a paradigm shift in German public law and policing. This rare convergence of theory and practice in one person at a critical time allows us to reconstruct ideas shaping police law and its transformation into the unbridled “security law” of this day. Following Herold will lead us to the foundations of law and its role in regulating our societies. Along the way, we will explore a chapter in the history of techno-policing.Footnote 14 Ultimately, this exploration will not only allow us to better grasp the history of technological law enforcement but assist us in dissecting its contemporary forms.
This article consists of four parts—three that follow a primarily descriptive, historical method, and one that is mostly prescriptive and related to the present day. I will first examine how cybernetics became an influential set of ideas during the second half of the 20th century and how Herold adapted and molded these ideas to his purposes. I will then turn towards examining why cybernetics was particularly suited to the challenges faced by Western thought under the conditions of the postmodern era. During the 1970s and 1980s, German public law—specifically administrative and police law—was swept up by the uncertainty of this new era. As a result, its self-descriptions shifted. In particular, the way the state and its apparatus were conceived changed with prevention serving as a guiding principle. I will retrace the intellectual and practical steps Herold and his BKA took towards enacting these paradigm changes in policing. In this context, both the critical role of technology as a tool of enacting this shift, and of cybernetics as the intellectual framework guiding the process, will become apparent.Footnote 15 Herold’s cybernetic framework of ideas, I argue, allowed him to express and process the paradigm change of German public law whilst simultaneously producing a utopian and anti-legal affect that lingers to this day. Identifying some of Herold’s shortcomings will lead us to the present day. With this third, concluding step, I will discern the link between cybernetics and techno-policing from a contemporary perspective. I will argue, perhaps counterintuitively, that a fundamental step towards understanding and regulating techno-policing from a legal point of view might be made not by rejecting cybernetics, but by once again drawing on it, particularly on its epistemological and ethical implications.
B. Cybernetics
Sometimes the spell of a word or expression is untainted by any clear and stable meaning, and through all the period of its currency, its magic remains secure from commonplace interpretation … I don’t believe that cybernetics is quite such a word, but it does have an elusive quality as well as a romantic aura.Footnote 16
On the following pages, I will develop an understanding of cybernetics with a focus on Herold’s hopes for a cybernetic transformation of the police, law, and society. To that end, I will contour cybernetics along three central perspectives of control, the enemy, and feedback and along its leitmotifFootnote 17 of utopianism. These characteristics will elucidate cybernetics’ connection to law, specifically police law. Throughout, Herold’s theory and practice will be our guide.
Cybernetics is not easily defined.Footnote 18 In fact, its allure lies precisely in its conceptual fluidity—cybernetics is many things to many people. It is the study of “abstract principles of organizations in complex systems”Footnote 19 that employs a vocabulary of emerging technologies, eventually converging in a “technoscience of communication and control, drawing from mathematical physics, neurophysiology, information technology, and symbolic logic.”Footnote 20 Its foundations were developed during the Second World War by the American mathematician Norbert Wiener and during the interdisciplinary Macy Conferences (1946–1953) in New York City.Footnote 21 It has successfully permeated the philosophical, scientific, and public imaginary of the latter third of the 20th century. To this day, cybernetics informs “how we talk, think, and act on our digital present and future, from the utopian visions invoked by the terms information age and cyberspace to the dystopian visions associated with enemy cyborgs and cyber warfare.”Footnote 22 Its traces “permeate the sciences, technology, and culture of our daily lives.”Footnote 23
I. Communication and Control
Norbert Wiener gave cybernetics its name in 1948 when he published Cybernetics: Or Control and Communication in the Animal and the Machine. He characterized it as the theory of “control and communication.”Footnote 24 It would be acutely adapted to the needs of the new post-war era, the “age of communication and control.”Footnote 25 From its conception, cybernetics “was seen as encompassing traditional concerns in the study of the ‘governance’ of human systems.”Footnote 26 The control perspective is reflected in the etymology of the term cybernetics. Its root is the Greek κυβερνητης (kybernētēs), meaning steersman.Footnote 27
This foundational perspective had implications for its relation to politics.Footnote 28 Cybernetics was to establish an institutional reversal: Technology, not politics, was to solve society’s problems. Homeostasis was the goal of this all-encompassing social technique. “Cybernetics … made an angel of control and a devil of disorder.”Footnote 29
Cybernetics was born in war.Footnote 30 In the throes of the Second World War’s aerial warfare, Norbert Wiener laid the groundwork for cybernetic thought. In 1940, as the UK was being relentlessly attacked by the Luftwaffe during the Battle of Britain, Wiener offered his services to Allied war research. He devised “a remarkably ambitious calculating device, the ‘anti-aircraft predictor,’ designed to characterize an enemy pilot’s zigzagging flight, anticipate his future position, and launch an anti-aircraft shell to down his plane.”Footnote 31 The ultimate goal was using the enemy pilot’s “own characteristic flight patterns to calculate his particular future moves and to kill him.”Footnote 32 Consequently, the enemy figured as cybernetic developmental archetype.Footnote 33 When Wiener published his Cybernetics in 1948, he explicitly presented his work as a theory for the “world of Belsen and Hiroshima.”Footnote 34
Whilst Wiener was building his anti-aircraft predictor, Herold was a Wehrmacht soldier.Footnote 35 As lieutenant in the tank regiment Großdeutschland (Greater Germany), Herold constructed a micrometer drum that tried to enhance the shooting accuracy of tanks. It did so in an “astonishingly simple”Footnote 36 manner—Herold reversed the principle of calculating distance by using the shooting distance of enemy tank types as measurement for calculating their positions.Footnote 37
The peculiar yet effective identification with the enemy remained a central part of Herold’s thought and police work. Personal identification was one aspect of it—as laid out above in his musings about his proximity to the RAF.Footnote 38 However, this identification went beyond the personal aspect. Its ultimate thrust was structural: if the identification succeeded, crime could be read in such a way as to “automatically produce the forms of organization and deployment that adequately address it.”Footnote 39 This notion of automatic adaptability of a system towards its object leads us to the third cybernetic perspective—namely feedback.
Herold saw his pressing task as “submitting the institutions of police and judiciary to feedback processes of self-steering and self-optimization in order to develop an aptitude for learning.”Footnote 40 This would lead to a “higher qualitative level” of policing, where “repression is replaced by prevention, inertia by dynamic, hypotheses by prognoses, leadership by steering, and supposed experience by objectivity (Sachlichkeit).”Footnote 41 For Herold, cybernetic feedback would serve as the instrument to enact these processes of learning.
One ought to construct the police as a cybernetic system which operates on its own accord. Like in feedback control, like the beautiful basic model of cybernetics—the centrifugal governor. As soon as the speed excels the desired value, its arms move upwards and close its valve, leading the speed to decrease. In this way, a multitude of conceivable variants are kept under control. I view the police in precisely the same way.Footnote 42
At this point, we can turn to Wiener’s explication of the etymology of cybernetics once more. Wiener wrote, “[w]e … wish to refer to the fact that steering engines of a ship are indeed one of the earliest and best-developed forms of feedback mechanisms.”Footnote 43 In this way, Wiener hoped for cybernetics to become “a science that would embrace intentionality” and learning.Footnote 44 Cybernetic “control by informative feedback”Footnote 45 would not be executed by “rigid control chains” but by dynamic “feedback loops.”Footnote 46
II. Utopianism
Cybernetics is inherently utopian.Footnote 47 Unsurprisingly so, as it was developed by thinkers confronted with the ideologies and cataclysms of the first half of the 20th century. They searched “for a quasi-immaculate description of the world,”Footnote 48 hoping to construct a new Universalwissenschaft.Footnote 49 They felt that “cybernetics is the biggest bite out of the fruit of the Tree of Knowledge that mankind has taken in the last 200 years.”Footnote 50 As the German philosopher Max Bense presciently noted in 1951, “the cybernetic expansion of modern technology entail[ed] its extension under the skin of the world.”Footnote 51
With the term utopianism, I refer to a mode of thinking that constructs an ideal state of affairs, “a paradise that lies in the distant yet still attainable future.”Footnote 52 It serves as a rhetorical device that contrasts an existing social order with an optimal alternative. Significantly however, in modern utopian thought, that alternative is portrayed as being attainable.
Cybernetics argued for a new age either conjecturally—in terms of the current state of technology and warfare—or ideally—in terms of the grand unfolding of Ideas about humanity.Footnote 53 By following a historical narrative, cybernetics offered a reading of history that inevitably lead to the necessity of cybernetic thinking.Footnote 54 Cyberneticists held that technological progress was a double-edged sword that “may be used for the benefit of humanity, but only if humanity survives long enough to enter a period in which such a benefit is possible.”Footnote 55 Alternatively, it “may also be used to destroy humanity, and if it is not used intelligently, it can go very far in that direction.”Footnote 56 Wiener poetically remarked that there is “a sin, which consists of using the magic of modern automatization to further personal profit or let loose the apocalyptic terrors of nuclear warfare.”Footnote 57 The cyberneticists held that they were the ones to prevent the nuclear horrors of the modern age.Footnote 58 Plainly, their appeal is simultaneously utopian and dystopian.
Yet, cybernetics’ utopianism was seldom explicitly stated, as its aim was being a value-free science. Manifestly poetic dreams of thinking machines and the amalgamation of subject and object were primarily portrayed in strictly scientific terms. Cybernetics simply perceived itself as breaking down “false dichotomies” between “human and non-human.”Footnote 59 Wiener wrote in 1948 that his cybernetics studies “automata, whether in the metal or in the flesh.”Footnote 60 In effect, they questioned “the ontology of ‘humanity’”Footnote 61 itself. “For the classic cyberneticists …, the blurred boundary between human and machine opened an infinity of possibilities; … by the end of his life, … Wiener had come to see the human-machine relation as a model, if not an incarnation of the bond between God and ‘man.’”Footnote 62 “[M]an’s dominating aim” was considered to be “the replication of himself by himself by technological means. The form of this dominating aim becomes hence a super-machine.”Footnote 63
Cybernetic utopianism had political consequences. It was innately connected to the cybernetic concern with governing.Footnote 64 Their mastery of a theory of control would make them the preeminent engineers of the social order.Footnote 65 As Galison notes, “although the technical form of man’s fundamental historical aim is a machine, the psychological and human content of that aim is control, mastery, the ability to impose his whims at will upon as much of the rest of the material universe as possible.”Footnote 66 Those “who make cyborgs are, in the end, like gods.”Footnote 67
Before we examine how Herold put these cybernetic ideas in action, we need to examine the social, legal, and institutional context of Herold’s work. As cybernetics was developed and popularized, post-war Western society underwent a broader shift. Feelings of fragmentation and the loss of a common social narrative changed the way we thought about society permanently. In the following part of this article, I examine how the world of legal ideas, particularly police and state law, responded to this new reality and how these developments presented an opening for Herold’s cybernetic ideas.
C. Shifting Legal Paradigms
By the 1970s, Western intellectuals were diagnosing a crisis of unitary perspectives and common narratives.Footnote 68 They felt that the social fabric had become torn, fragmented into different language games that were often opposed to one another. In this new epistemic configuration, the Archimedean point from which all knowledge could be surveyed was considered lost.Footnote 69 From then on, they described Western society as having become “a polycentric, polycontextural system,” applying “completely different codes, completely different ‘frames,’ completely different principal distinctions.”Footnote 70 To those convinced of cybernetics, its promises of control and prediction seemed the most apt way to address and process this new uncertainty.Footnote 71
I. Preventive State
German jurisprudence did not remain untouched by these changing narratives.Footnote 72 The way public law scholars conceived of the state and its functions underwent a significant paradigm shiftFootnote 73 during the 1970s and 1980s. As West German post-war society left its early stages of stasis and ostensible peace and quiet and entered a period of fierce political discussions, spikes in organized crime, and the terrorism of the RAF, the common understanding of the role of the state and public law shifted.Footnote 74
Specifically, many public law scholars modified their understanding of state responsibilities. The term Präventionsstaat (preventive or precautionary state)Footnote 75 was used to make this modification negotiable within jurisprudential discourse.Footnote 76 It drew its conceptual strength from a historical narrative as its meaning was contoured by contrasting it with the “repressive state” that had preceded it. As the influential constitutional scholar Dieter Grimm summarized in 1986—he would be elected to the Federal Constitutional Court a year later—a repressive state reacts: “It can wait for events that are harmful to society (sozialschädlich) to occur.”Footnote 77 Conversely, the newly arisen preventive state acts. It must detect the structures producing potentially damaging events and combat them before they reach facticity. Repression fights deviancy with the aim of restoring normalcy. It is “reactive and selective”—hence that is, visible. Prevention fights unwanted developments before they become reality. As such, it is prospective and extensive, “directed towards the future and complex,” rendering it invisible when compared to repressive action.Footnote 78 This conception of governmental activity was “more encompassing than what was traditionally meant by ‘preventing’ crime” and “implied a very different role for the state.”Footnote 79
The duty of the state to prevent high-riskFootnote 80 scenarios hinges on prognoses. Officials would have to determine where structures producing dangerous situations exist before they show themselves. To do so, they would have to gather knowledge,Footnote 81 requiring “the state, independent of any concrete danger or social problem, to collect all of the information that could possibly be of use in the discovery and preemption of abstract risks.”Footnote 82
This conceptual paradigm shift led to a focus on prediction, knowledge, and risk as novel central perspectives.Footnote 83 It needed new concepts which would allow the coordination of cognitive and normative elements.Footnote 84 However, the dearth of central, processable information pertinent to decision-making in (post-)modern society would not make this an easy task.Footnote 85 How could state organs gather robust information in this postmodern society where knowledge is fragmented across multiple epistemic communities, undermining attempts to adopt a central point of view? Administrative law, and police law in particular, needed to provide mechanisms that would transform non-knowledge into sufficiently resilient bases of information.Footnote 86 Where these mechanisms were structurally unable to reach certainty, decisions needed to be made under conditions of uncertainty.Footnote 87
To sum it up, the paradigm shift in public law in the 1970s and 1980s was characterized by acknowledging the need to decide insituations of uncertainty and by deeming the state to be responsible for dealing with prevention and risk.Footnote 88 Administrative and police law came to be seen as an instrument of risk prevention, leading to a shift from repressive measures to increasingly—and potentially unlimited—precautionary measures.Footnote 89 It was now up to the state apparatus to enact this conceptual turn towards prevention.
II. Institutional Paradigm Shifts—the BKA Within the Preventive State
The BKA’s institutional shifts of the 1970s mirrored the jurisprudential shift to prevention. Before the 1970s, the BKA played a minor role. Its main task was data collecting. The head of the Düsseldorf Criminal Police famously referred to the BKA as a “mere mailbox” in Wiesbaden.Footnote 90 It was allowed to act as a law enforcement agency only on the request of a State Criminal Police Office (Landeskriminalamt) or the Federal Minister of the Interior.Footnote 91
In 1969, the statute governing the BKA’s competencies was amended for the first time. The amendment subtly broadened the agency’s authority. Whilst the Agency remained dependent on a request to act, this request could now also be made by the Federal Public Prosecutor General (Generalbundesanwalt) who was more likely to do so.Footnote 92 In 1973, a second, more ambitious amendment followed, giving the BKA its own core investigative responsibilities.Footnote 93 Furthermore, it codified the Agency’s function as central administrator of information and communication. Concurrently, the BKA vastly expanded its budget, employed more people,Footnote 94 and collected more data than ever before.Footnote 95
Horst Herold steered and oversaw this expansion of legal and organizational scope. He became the BKA’s president on September 1, 1971. Herold aimed to transform police work by way of “scientification” (Verwissenschaftlichung). Modern technology was the operational means of that transformation. Herold computerized policing and hoped that computerization would eventually pave the way towards utopian social engineering. As he put it—not stopping at a merely administrative transformation—“the computer is my source of hope—as a new instrument of diagnosing the whole of society.”Footnote 96 Herold invented the dragnet investigation methodFootnote 97 and set up the Informationssystem der Polizei (Police Information System) (“INPOL”), a new system of information retrieval connecting police stations all over the Federal Republic, allowing investigators to draw on an unprecedented wealth of data.Footnote 98 In this manner, Herold focused the entire agency on sophisticated methods of “prevention of a new kind.”Footnote 99 A changed understanding of state responsibilities thus corresponded with an expanded role for agencies like the BKA justified by the paradigm of prevention.
III. Embodying a Paradigm Shift—Horst Herold’s Preventive Police
This institutional shift towards prevention was prepared and accompanied by Herold’s theoretical work. His cybernetically founded ideas of preventive policing were “genuinely revolutionary”Footnote 100 at the time. In his essays, he relentlessly emphasized prevention as the central function of policing. He, too, seized the narrative shift from repression to prevention. For Herold, the old-fashioned “search” for perpetrators (Fahndung) signified repression, whereas the new “research” (Forschung) towards structures of criminality represented modern prevention.Footnote 101 In Herold’s conception, successful prevention depended on a transmission of scientific knowledge towards the state organs.Footnote 102 In the face of increased uncertainty, Herold emphasized the possibility of cybernetically steered rarefied administrative control by technological means. As Herold reportedly quipped during a meeting of the BKA with the Bundestag Committee on Internal Affairs, his new idea of prevention would mean “reaching the crime scene ahead of the criminal.”Footnote 103
Herold was able to process these significant theoretical and practical shifts through the prism of cybernetics. When Herold was sworn in as head of the BKA on September 1, 1971, the media and government response was enthusiastic. He stood for a new era of rational and modern policing. However, it soon became apparent that his ideas and conduct had divided state officials and police officers. While Herold exerted a fascinating influence on some, particularly the younger officials who were drawn to his promises of objectivity and progress, the old guard remained skeptical of his cybernetic dreams and resisted his ambitious reforms.Footnote 104 As Herold put it in December 1976, parts of the police apparatus exhibited an “irritated rejection and emotional reaction” to his ideas of technological dynamization.Footnote 105 Herold soon faced opposition not only from within the BKA from his old-fashioned conservative opponents but also external criticism from Germany’s progressive intelligentsia, who had grown increasingly weary of Herold’s grand project.
D. Policing the Cybernetic City of the Sun
I. Herold’s Dreams of Techno-Policing
In his 1979 essay “Doctor Herold’s City of the Sun,” the German public intellectual Hans Magnus Enzensberger accused Horst Herold of attempting to “plan a cybernetically steered, interference-free society.”Footnote 106 Enzensberger portrayed Herold as a bureaucratic utopian—already reflected in the title of his essay, a reference to the Città del Sole, an absolutist utopia envisioned by the imprisoned Dominican friar Tommaso Campanella in 1602.Footnote 107 Enzensberger rightly placed Herold at the junction of repressive traditionalism and preventive modernism.Footnote 108 Herold did not represent the BKA of old, the “Alt-Nazis” employed by the early Federal Republic in many functions of state,Footnote 109 evidently morally reprehensible by way of their former deeds, and keen to repeat their excesses of repression. Rather, Enzensberger admits that Herold represented an administrator of a new kind—one that worked toward essentially positive goals but employed subversive, corrupting, dystopian instruments—namely modern technology.Footnote 110 Enzensberger stressed that Herold’s “power does not stem from the barrel of a gun but rather from the software of his computer.”Footnote 111 In effect, Enzensberger bemoaned that the old utopias have been entrusted to new bureaucratic dystopians:
If one considers that the old and dignified European tradition of utopian thought is virtually extinct in our days …, it appears as bloody afterwit that it is policemen who are crafting the Great Design. They want to bestow a New Atlantis of general interior security on us, a new social-democratic City of the Sun, a new Palisades Islands for social automats, steered and operated by the all-knowing and enlightened high priests of the oracle of Wiesbaden.Footnote 112
In response to Enzensberger’s charges, Herold reaffirmed his utopianism: “One has to create a livable (lebenswert) state. A citizens’ state—a transparent state. And that state you can only make transparent through technology. Yes, of course that is a City of the Sun, but one that is feasible today. Here, within the police, it’s feasible.”Footnote 113 Utopianism permeated Herold’s thought: It can be shown to be both the implicit and explicit leitmotif of his ideas. It is prevalent in Herold’s intellectual foundation of cyberneticsFootnote 114 and in turn informs his police theory.
Utopianism can both be demonstrated as the implicit framework of Herold’s thought visions of the future, but at least once, Herold himself professed it explicitly. In 1975, he gave a speech at a Police College in Münster where he proclaimed that a “concrete utopia on the basis of real chances would befit the police.”Footnote 115 Where Herold did not explicitly confess his utopianism, he tended to reveal it implicitly. Fundamentally, he constructed a teleological narrative leading towards a “healthy” society by technological means and within a cybernetic framework. In this new world, the law would be restricted to a merely reactive function.
Herold developed a historical narrative wherein he posited that humanity had made two fundamental steps towards progress so far: first by developing writing and then by inventing the printing press. Now, humanity was supposedly on the brink of the “third chapter of human civilization” which would be brought forth by the computer—by the vast extension of data provided by computational means. This new kind of cognition would, according to Herold, result in a categorical expansion of knowledge (not a mere gradual one). As a result of this expansion, a “fundamental democratization of society”Footnote 116
To reach this new stage of human development, Herold called for transcending the current state of affairs. His interests lay in developing “a type of normative imagination (Sollvorstellung) of electronic data processing in policing as a closed organizational entirety” that would be independent of what is “and thus needs to adopt a forward-thinking stance, further into the unknown.”Footnote 117 In this way, technology would point the way forward to the next stage of social progress by guiding error-prone humans towards a society in permanent technologized equilibrium.
Herold considered the police as playing a crucial role in this next step of civilization. Police were called upon to participate in “the great intellectual (geistige) task of progressing from an authoritarian order to a legal order, from small scale to universality.”Footnote 118 This role arose, as Herold thought, from the police’s societal role. It was located at a key point in our social fabric, acting at the point “most immediate to the realities” of the present moment. The police enjoy a “privilege of insight into deviant behavior and structural deficits of society” which is “superior to all other state organs.” This cognitive preeminence of the police makes it ideally suited as an instrument of “diagnosis” for the social organism. It alters its function from the “part of the enforcer” to the “task of social sanitation.”Footnote 119 To fulfil its expanded role, the “police of the future”Footnote 120 would have to become “higher-level, scientifically interdisciplinary.”Footnote 121 The radical transformation of law enforcement into the “police of the future” would be facilitated by the “objectivization” (Verwissenschaftlichung) of its work through data and its processing. This is a crucial point for Herold, as it marks the difference between idle dreaming and attainable states of things. He considered his thoughts and actions to travel the objective, scientific, and verifiable path, remarking that “[the] road ahead is steep and arduous, yet ultimately successful” when guided by rationality.Footnote 122
At the most concrete level of police work, Herold demanded a reformation by “scientification”Footnote 123 that would replace subjective “experience”Footnote 124 and “emotions”Footnote 125 with “objectivity.” This vocabulary highlights the post-human character of Herold’s ideas. The individual human was seen as an obstacle in the march towards objectivity. Consequently, Herold wished to eliminate the human elements from criminal procedure and ultimately, from criminal law entirely. First, forensic science would have to become “an instrument of objectivization of criminal procedure namely by developing it to such a high scientific perfection and quality that the witness becomes unnecessary.”Footnote 126 Second, judges would subsequently become unnecessary. Instead, proceedings would be “exclusively based on scientifically verifiable, measurable material evidence.”Footnote 127
Whereas the individual human being essentially disappears from Herold’s technological visions, the police and the state were conceived in organic metaphors.Footnote 128 Herold suggests thinking of the police as a “living organism”Footnote 129 securing its viability (“Lebensfähigkeit”) under the conditions of a “changing environment.”Footnote 130 Similarly, Herold likened the automatization of police work to a “body” being “implanted with an entirely new nervous system with modified sensibility and reactivity.”Footnote 131 Herold’s BKA would be this social organism’s brain, the “cerebrum of German police.”Footnote 132 Related to the collective organism of the state, the police’s task was “social sanitation.”Footnote 133 Herold likened state and society to a patient and claimed he had the means to “permanently measure society’s pulse, like a doctor—hence the term social sanitation—and keep our legal system in a dynamic state via rational insights.”Footnote 134 In this framework, the police would act as “an instrument of social diagnosis” that would conduct “clinical examinations” to detect structures of deviancy.Footnote 135
Herold held that, to realize this transformation, “a renunciation of traditional thinking, a rethinking, a radical intellectual restart is certainly needed.”Footnote 136 To realize this progress, cybernetics would provide the conceptual framework. For Herold, cybernetics was “among the most significant scientific achievements of our century.”Footnote 137 To him, it constituted the “most advanced attempt to translate” the technological realities of the new age “into state action.” Cybernetics offered “epochal concepts” to guide that translation, namely “feedback” and the “sublation of the increasing specialization of all modern sciences towards a new synopsis and unity, applicable to all biological, technical, economic, and social systems that—like living organisms—are forced to learn in a loop of cognition and correction of information.”Footnote 138 In his 1970 essay, Kybernetik und Polizei-Organisation (“Cybernetics and the Organization of Policing”Footnote 139 ), Herold proposed a reorganization of the police into a “self-steering organism,” the “sum of feedback loops,” a “living organism,” adaptable to change.Footnote 140 A “radical approach” would be necessary to enact that transformation. As Herold put it, “cybernetics supplies that radical approach.”Footnote 141 Herold formulated his central ideas in cybernetic terms, fundamentally conceiving the police as a “cybernetic system.”Footnote 142
II. Antinomianism
Utopianism has grave implications for law. As Carl Schmitt, the paradigmatic thinker of deficiency, unraveling, and cataclysm,Footnote 143 pointed out in his later work, utopianism negates law. Any perfect and ubiquitous enforcement of law would threaten the legal form itself.Footnote 144 As a normative structure, law depends on a gap between what is and what should be—Is and Ought. In a state of utopia, these two dimensions necessarily converge. Everything that should be is. Hence, law dissolves.
Schmitt’s critique of utopia is “deeply imbricated” in his “broader critique of technicity.”Footnote 145 In his conception, technology allows the escalation of utopia “to ever increasingly audacious dimensions.”Footnote 146 Technology creates standardized humans and thus strips them of their individuality and ultimately their humanity.Footnote 147 His portrait of a technological utopia lays bare the horrifying, dystopian core of all utopian desires.Footnote 148
Cybernetics as a fundamentally utopian worldviewFootnote 149 carries these antinomian perspectives with it. Its medium of replacement is technology. Cybernetics replaces legal normativity with the calculated normativityFootnote 150 of its technological instruments. It wholly supplants the legal concept of normativity as counterfactual persistence with the idea of dynamic adaptability.
Herold’s cybernetic utopianism carried these antinomian implications with it. In Herold’s view, the legal world still clung to the “fiction of positivism” that statutory law held answers to all hypothetical cases. In reality, “accelerated social and economical developments … laid open the incompleteness (Lückenhaftigkeit Footnote 151 ) of the legal system.”Footnote 152 Herold felt that there was a “gap between the vast superstructure of laws, ordinances, writs, rulings, directives, and instructions” and the “technical and social development status” Those legal questions that “lie within the gaps are no longer solvable in a purely juridic way.”Footnote 153
To address this developmental gap, “public law” would have to “change from authoritarian law (Obrigkeitsrecht) to a modern cooperative law between state and citizen.”Footnote 154 Evidently, Herold’s ideas are not thoroughly coherent. Human agency is either completely subsumed by techno-legal progress or empowered by it. His remarks on the matter oscillate permanently between technological promise as realization of the rule of law through its perfection or as abolishing the need for law entirely, thereby also rendering the rule of law obsolete. This paradoxical oscillation perhaps mirrors the close connection between utopia and dystopia remarked upon by Carl Schmitt.
The functioning of the state itself would fundamentally change due to cybernetic insight. Drawing on vast data by technological means would enable law-making to “adapt to the changes and developments of crime in a versatile manner and without being dependent on long-term observations.” Herold compared this adaptability of law to crime with the ability of “commerce and industry to adjust to changes on the market.” Whereas now, the “enormous superstructure of laws and ordinances” is unable to keep up with actual conditions, under cybernetic conditions this superstructure would be “subject to a continuous and adequate actualization” akin to the mechanism of feedback.Footnote 155 Consequently, legal order would be dynamized through the ideas of feedback and reflexivity.
If police and judiciary would be authorized to permanently process [society’s] potential for change, establish a permanent feedback, dynamize the whole process, we would have an instrument by which the state would remain acceptable—instead of creating counterforces and hostility towards the state (Staatsgegenmacht und Staatsfeindschaft), it would create movement, development … that the state would keep its grip on.
Fundamentally, Herold did not posit the law as the central agent in this process of increased control. His cybernetic mindset replaced law with technology. The law appeared more as an afterthought, a mere function of technological and cybernetic necessities. It would adapt to new ways of control, not viceversa.
All in all, Herold’s cybernetic visions seem to confirm the Schmittian assumption that utopia is the annihilation and negation of law.Footnote 156 In Schmitt’s view, the solution to this quandary, “the way toward … freedom” could only be “the way out of technology.”Footnote 157 Such a way is neither attainable nor feasible in our thoroughly technologized present. Thus, we need to look for ways of productively channeling the hopeful energies of technological process while simultaneously guarding against its dystopian drives. Before examining the chances of such an undertaking, we turn once more to our guide in history, Horst Herold, to look at his fate and long-term legacy. Herold’s cybernetically founded antinomianism lives on to this day. It persists to in modern security law and in the federal security structure of Germany.
III. Heroldian Legacies
After the so-called German Autumn of 1977—the height of RAF terrorism where Federal Public Prosecutor General Siegfried Buback, banker Jürgen Ponto, and Confederation of German Employers’ Associations president Hanns-Martin Schleyer were assassinated—Herold’s reputation deteriorated. When Schleyer was kidnapped on September 5, 1977, Herold oversaw the most extensive dragnet search up to that point.Footnote 158
However, Herold failed to discover where Schleyer was held,Footnote 159 eventually resulting in Schleyer’s murder on October 18, 1977.Footnote 160 These failures put the efficacy of Herold’s technological surveillance and search apparatus in question. In the resulting critical atmosphere, he lost the initial goodwill directed towards him, both in the public sphere and within law enforcement and the government.Footnote 161 Many within the German state and police apparatus saw Herold as representative of the danger of social engineering and separating the federal police from checks and balances.Footnote 162 They rejected Herold’s challenges to conventional delineations of politics, police, and the judiciary.Footnote 163 At the time, Herold increasingly saw himself as fighting a losing battle against the “traditional bureaucratic principles of organization.”Footnote 164 He felt that he was prevented from enacting his radical transformations by the political establishment, the media, and parts of the police.Footnote 165 In 1979, he lamented that his cybernetic transformation of society was “such a simple thought! One is almost ashamed of articulating it. But it is not doable—at least not at the moment.”Footnote 166
On March 31, 1981, Gerhart Baum, who had become Minister of the Interior in 1978 and was deeply skeptical of police overreach, forced Herold to retire. By this time, he had become “Kommissar Computer,” a “symbol of complete electronic surveillance in the collective memory of West Germans.”Footnote 167 The well-known German journalist Heribert Prantl recounts that during his law school years (1974–1979), “we law students deemed Horst Herold to be the police’s Dr. Mabuse, a data sleuth, a computer maniac, who swigs information like an alcoholic swigs booze. His dragnet search via computer … seemed to us a creation from the edge of hell.”Footnote 168 Yet, when Prantl first met Herold in 1989, he encountered neither a “law and order freak,” nor a “personification of police hybris” but rather a “pensive criminal philosopher—a political theorist and public servant (Staatsdenker und Staatsdiener).”Footnote 169 Prantl’s assessment reflects the ambivalence of Herold—caught up between utopian hopes and sobering realities.
Years after his retirement, Herold’s contributions were reevaluated within the BKA as well. As its current head put it in the BKA’s obituary for Herold in 2018, Herold was “a visionary, whose ideas carry the BKA to this day.”Footnote 170 His conception of autonomous federal security structures, free from administrative encumbrances, critically reliant on data, and dynamically adaptive had a resounding effect on modern law enforcement.Footnote 171 Intelligence-led policing has become a principle of modern German security law.Footnote 172 Consequently, today we find ourselves facing an ever-growing apparatus of digitized prediction. Herold’s vision of the BKA as a cerebrum, as the centralized data collecting agency remains in place.Footnote 173 In fact, the BKA’s data collecting is continually reaching new heights.Footnote 174 Moreover, buoyed by modern technology, the contemporary BKA continues to redraw its own battle lines and encroach far into the preliminary stages of potential crimes, much like Herold had imagined.
Legislation in the past thirty years in particular has accelerated this process. In 1997, the BKA was expanded into a fully equipped law enforcement agency. The renewed fears of terrorism in the 2000s led to a further strengthening and centralization of federal police powerFootnote 175 and preventive competencies.Footnote 176 In 2008 the statute governing the BKA was amended once more, reinforcing its role as a centralized police force operating by using vast amounts of data.Footnote 177 Much like Herold envisioned, the organizational and functional separation of police and intelligence agencies is being weakened,Footnote 178 leading to an increasing transformation of police work into intelligence work.Footnote 179
The modern BKA is situated within the modern conceptual field of “security law,” which encompasses preventive aspects of police work, the intelligence agencies, and the fight against terrorism; it is situated within crisscrossing competencies, split between European, federal, and state-level legislation.Footnote 180 Much like Herold’s cybernetic intellectual framework, modern security law is being shaped by the paradigm of the enemy, the terrorist, and dreams of perfected prevention. The security apparatus of today is frequently accused of portraying criminals as “enemies”—in particular those who are deemed terrorists.Footnote 181 However, Herold’s reflexive personal and structural consideration of the enemy as the one closest to oneself is no longer heeded. Similarly, the more idealistic aspects of Herold’s legacy that the BKA rejected were his ideals of democratization of the police and society as a whole.Footnote 182 Caught up in the ever-increasing fight against perceived grave threats, Herold’s project of de-subjectivizing police work—and ultimately state power itself—was left unfulfilled. His intense focus on fighting terrorists did not constitute the realization but rather the frustration of his initial sociopolitical project.Footnote 183
Evidently, the dystopian dangers of techno-policing remain. The lingering utopian hopes of preventive policing, of “reaching the crime scene ahead of the criminal,” are exemplified by current conceptions of techno-policing. Like Herold’s ideas, they maintain an anti-legal affect. These contemporary dreams of techno-policing will be the subject of the final, prescriptive part of this essay.
E. Second-Order Cybernet(h)ics
In the concluding part of this article, I will argue—perhaps counterintuitively—that Herold’s ultimate failure was not adapting cybernetics but rather not staying with it all the way.Footnote 184 I am referring here to the development of so-called “second-order cybernetics.”
First, I will characterize second-order cybernetics with a focus on its relevance for legal thought. To do so, I will first draw on the characterization of first-order cybernetics laid out aboveFootnote 185 and recount how the introduction of the observer—second-order cybernetics’ fundamental shift—modifies first-order perspectives and transforms its dreams of utopian control into restrained ethics of uncertainty and alterity. Second, I will demonstrate the adaptability of legal thought in relation to the new cybernetics by briefly referring to Luhmann’s systems theory and its reception in German jurisprudence. Third, I will argue that jurisprudence has not exhausted the possibilities of second-order cybernetics, specifically of its turn towards ethics. To illustrate this point, I will draw on an example of predictive policing to tentatively consider how second-order perspectives might provide answers for dealing with racial discrimination.
I. From First to Second Order
First-order cybernetics—for all its novelty—still rested on a division between observer and observed, descriptor and descripted, subject and object. In other words, it remained “inscribed within classical scientific thought” by holding on to “idealist dualisms.”Footnote 186 First-order cybernetics presented itself as a “power relationship”Footnote 187 where “the observer is outside the system being observed: he treats it as an artifact ‘under his cold gaze,’ where neither artifact nor observer is changed by the act of observation.”Footnote 188
The turn from first to second-order cybernetics hinged on a changed understanding of the observer.Footnote 189 In second-order cybernetics, her presence is “admitted rather than disguised.”Footnote 190 Where first-order cybernetics instituted a boundary between observer and system, in second-order cybernetics, the observer “is understood to be both within the system being described and affected by it.”Footnote 191 The first-order observer is “replaced by a multitude of second-order observers. Cognition turned from representation into a never-ending process of recursive computation that generates descriptions of reality.”Footnote 192 In this way, cybernetics is reformed as a “meta-technique of relating the object-level and the meta-level. It is both reflection and the reflection of reflection”Footnote 193 —hence the moniker of second-order.
The second-order cyberneticist Francisco Varela stressed that knowledge is “built from small domains, that is microworlds and microidentities.”Footnote 194 These domains “are not coherent or integrated into some enormous totality regulating the veracity of the smaller parts. It is more like an unruly conversational interaction: the very presence of this unruliness allows a cognitive moment to come into being according to the system’s constitution and history.”Footnote 195
The central figure in said turn was Heinz von Foerster.Footnote 196 In a series of works, published between 1974 and 1982,Footnote 197 he developed its central ideas. He held “that the cybernetics of observed systems we may consider to be first-order cybernetics; while second-order cybernetics is the cybernetics of observing systems.”Footnote 198 A second-order observer “is observing another observer to see what the latter can and cannot see.”Footnote 199 That process “occurs only when we observe an observer as observers.”Footnote 200
Where traditional cybernetics held the perspective of reflexivity,Footnote 201 the new cybernetics was based on recursion. Recursion means that processes use their own results as bases for further processes. Thus, two sides of a relation are alternatively basis and result of each other. In contrast to reflexivity, recursion entails a closure. Whatever is processed is not imported from elsewhere, but rather produced by the process itself. Epistemologically, the switch from reflexivity to recursion revealed the closed, contingent nature of observation. The observer has only her own operations at her disposal. To make sense of what is happening, to construct “order from noise,”Footnote 202 she cannot import the structures of her observation from elsewhere.Footnote 203 An observer’s descriptions are always the observer’s descriptions. As Luhmann put it, “the descriptive marking of structures is completely relative to a system’s operations.”Footnote 204 Each specific perspective brings necessary blind spots with it.Footnote 205 All pretensions of static ontologies and utopian stasis disappeared.
Crucially, von Foerster also pondered the ethical consequences of his switch. His ”cybernethics” invited “the observer of systems to ‘enter the domain of his own descriptions’ and accept the responsibility for being in the world.”Footnote 206 Once this contingency of observation and description is accepted, “cognitive efforts have the purpose of helping us cope in the world of experience, rather than the traditional goal of furnishing an ‘objective’ representation of a world as it might ‘exist’ apart from us and our experience.”Footnote 207 As Humberto Maturana and Varela poetically put it: “The knowledge of knowledge compels … us to realize that the world everyone sees is not the world but a world which we bring forth with others. It compels us to see that the world will be different only if we live differently.”Footnote 208
II. Second-Order Cybernetics and Jurisprudence
Second-order cybernetics entered legal discourse mainly by way of Niklas Luhmann’s systems theory and its vocabulary.
In his obituary for Niklas Luhmann, Friedrich Kittler remarked that “an offshoot of computer science (diluted by the Pentagon for security reasons) degenerated into Wiener’s cybernetics” and that this cybernetics in turn “fell prey to sociologists, anthropologists, and biologists, until a legacy of the legacy of hardware yet became philosophy”—that is, Luhmann’s philosophy of systems.Footnote 209 Indeed, Luhmann’s systems theory rests on the epistemology of second-order cybernetics.Footnote 210 It represents “a grandiose concretion” of the “translation of the increasingly cybernetic aspect of all domains of being into a new, theoretically advanced semantic register.”Footnote 211
Luhmann’s systems theory rests on the assumption that society is functionally differentiated. Consequently, in lieu of hierarchic structures of order, Luhmann posits functional structures. These structures form “systems” that develop their own logic, rationality, and types of communication specific to their respective function. For Luhmann, the law is such a system, functioning along the binary code of legal and illegal.Footnote 212 Due to their specific functions, systems are not part of a unitary whole, but autonomous. Luhmann calls this autonomy “autopoiesis,” a term developed by the biologists Maturana and Varela with second-order cybernetics as a basis.Footnote 213
Crucially for jurisprudence, Luhmann turned the epistemological gaze of second-order cybernetics towards law. On the most fundamental level, he focused second-order observation on the law itself, remarking that there is a “cybernetic circle in which the law observes itself at the level of secondary observations.”Footnote 214 Through this mechanism, the law gains its code and thus its eigen-rationality.Footnote 215
For Luhmann, the law is “a regulatory mechanism, serving the adaption of society to its environment.”Footnote 216 He goes on to say that the law “does this, however, in a secondary position, as society itself always achieves its own adaptation to its environment …. The law can then be seen outright as a cybernetic machine in a cybernetic machine, which is programmed to maintain a steady state.”Footnote 217 This allows Luhmann to repeatedly invoke second-order cybernetics in the development of his legal theory. The fields of application range from the relation between legislation and judiciaryFootnote 218 to a theory of legal-decision-makingFootnote 219 to a concept of judicial argumentation.Footnote 220
Subsequently, a fruitful discussion arose between Luhmann and his contemporaries within legal science. Innovative legal theorists such as Gunther TeubnerFootnote 221 and Karl-Heinz LadeurFootnote 222 developed Luhmann’s impulses and placed them firmly within legal discourse.Footnote 223 In this way, the vocabulary of second-order cybernetics became part of German jurisprudence.Footnote 224
Ladeur in particular transformed Luhmann’s systems theory of law into a postmodern legal theory.Footnote 225 He emphasizes that the ubiquitous epistemic uncertainty of postmodernity should motivate the legal order to introduce “new reflexive moments of design, of modelling of self-revision and of monitoring.”Footnote 226 “Knowledge ‘gaps’ cannot be filled, but they are an unavoidable element of the new experimental logic.”Footnote 227 In what Ladeur calls “social epistemology,” a “more open conception of modelling, designing and experimenting, which makes decision-making more process-oriented, more flexible and more reflexive” is constructed.Footnote 228
Law’s function is viewed as that of guaranteeing the internal functionalities of societal pluralisms. “There is no room for ‘steering’ technologies, but only for introducing reflexive elements into open processes of self-organization.”Footnote 229 As a result, “the idea of the best decision no longer exists, only that of a satisfying decision” protecting the internal functioning of each societal sub-order.Footnote 230
Significantly, Luhmann did not adapt the—somewhat—prescriptive ethical point of view of cybernetics. Consequently, the turn of second-order cybernetics towards ethics remains to be fully appreciated by legal theory.Footnote 231 I will illustrate this by using the example of techno-policing and racial discrimination.
III. Cybernet(h)ic Police Law
Many still dream of Herold’s techno-utopia today.Footnote 232 Our contemporary intellectual framework has been profoundly shaped by cybernetics—to an extent that some claim “it has deeply permeated the fabric of knowledge,”Footnote 233 perhaps even “turned into our epoch’s imaginary standpoint.”Footnote 234 Those who put their hopes in cyber-policing can easily formulate their visions in the terms of our age.Footnote 235
The contemporary discourse around so-called predictive policing is an illustrative example of our continuing Heroldian cybernetic imaginary. It speaks of extracting patterns from past behavior by harnessing large amounts of data and identifies crime risks in order to prevent or reduce them.Footnote 236 It promises advancements in techno-policing on a new scale, particularly the “holy grail of policing,” completely “preventing crime before it happens.”Footnote 237 Nowadays, institutions like the BKA are transformed into multifunctional intelligence agencies whose conception of prevention penetrates deeply into the preliminary stages of potential crimes.
At the same time, much like Herold did, many still imagine techno-policing as liberating policing “from human biases or inefficiencies.”Footnote 238 There are some who place great hopes in the ability of such advances to deal with racial discrimination in particular.Footnote 239 They believe that techno-policing will “reduce racialized policing” if applied correctly.Footnote 240 Significantly, they argue in favor of an increase of policing throughout every sphere of society, advocating for “more public surveillance cameras,”Footnote 241 for “facial recognition technology,” and for application of “Big Data.”Footnote 242 As they put it, “cameras and terahertz scanners do not have implicit biases. Nor do they suffer from unconscious racism.”Footnote 243 In effect, “everyone would be subjected to the same soft surveillance.”Footnote 244
Others remain skeptical. They stress the dangers of limitless technological surveillance, arguing that “unconstrained surveillance … threatens to a cognitive revolution that cuts at the core of the freedom of the mind that our political institutions presuppose”Footnote 245 and that predictive policing “results in increasingly disproportionate policing of historically over-policed [minority] communities.”Footnote 246 They view techno-policing as providing a veneer of legitimacy over the same discriminatory policies, arguing that “although predictive policing is reproducing and magnifying the same biases the police have historically held, filtering this decision-making process through sophisticated software that few people understand lends unwarranted legitimacy to biased policing strategies.”Footnote 247 As the director of the ACLU’s Criminal Law Reform project recently put it, predictive policing would constitute the “tech-washing of racially discriminatory law-enforcement practices.”Footnote 248 The trajectory of modern security law seems to lend credence to these fears.
The primary legal safeguard against these threats is constitutional law. However, the question of constitutional law’s efficacy in doing so remains open. Yet, courts on the European and national level are struggling to “update their respective constitutional frameworks to accommodate smart law enforcement technologies with established concepts of individual rights.”Footnote 249 Furthermore, constitutional jurisprudence is a malleable process, particularly when confronted with new technological developments. In such cases, constitutional law opens itself up to a supplementation on the level of legal theory.
Consequently, merely referring to constitutional guards against the delimitation of data-based policing will not be sufficient. Rather, a more fundamental perspective of legal theory might be needed to supplement the constitutional point of view.
I argue that second-order cybernetics might be particularly suited to this task. Why draw specifically on second-order cybernetics? As established above, cybernetics still informs “how we talk, think, and act on our digital present and future, from the utopian visions invoked by the terms information age and cyberspace to the dystopian visions associated with enemy cyborgs and cyber warfare.”Footnote 250 Its traces “permeate the sciences, technology, and culture of our daily lives.”Footnote 251 Additionally, through Luhmann and his interlocutors in the world of jurisprudence, second-order cybernetics’ vocabulary entered the legal world. Hence, it is particularly suited for addressing convergences of law and technology such as technological policing.Footnote 252
Rather, we should look to reinvigorate cybernetics’ humanistic potentials. On an epistemic level, such reinvigoration would emphasize that technological modelling approaches and legal operations both construct their own realities. We should not confuse the map for the territory.Footnote 253 Neither law nor technology correspond to a given, preexisting reality.
The law creates its own realities.Footnote 254 In doing so, it must set “boundaries between what counts as real and what has to be regarded as unreal.”Footnote 255 Its mechanisms “exclude those aspects of reality that do not fit its schemes.”Footnote 256 Quod non est in actis non est in mundo.Footnote 257 At the same time, it employs operations such as legal fictions that assert normative validity precisely by consciously breaking with reality.Footnote 258 Facts and norms “are not as clearly separated as the established mode of self-observation of the legal system maintains.”Footnote 259
This “epistemic independence”Footnote 260 of law leads to a paradox. First, in a normative operation in the strongest sense of the term, the law “imagines a situation which does not (yet) correspond to the normal state of society,”Footnote 261 marking a deviation between Is and Ought. Then, however, law “imagines that this correspondence between normality and normativity already exists.” Consequently, “normativity, as a notion referring to a certain desired state of affairs, is a process of representation without the represented. It is a process simultaneously demonstrating and dissimulating its own inscrutability.”Footnote 262
Technology creates its own realities.Footnote 263 Modelling and predictions give rise to virtual universes. Beyond simply reproducing those biases that are already present in the minds of those who construct the models, an entire reality of big data is computed in an “ecstasy of communication.”Footnote 264 “The ambiguous and enigmatic real is eradicated and superseded by the copy and the clone.”Footnote 265 This hyperreality has the potential to monopolize “all the other worlds” and to totalize “the real by evacuating any imaginary alternative … with the virtual, we enter not only upon the era of the liquidation of the real and the referential, but that of the extermination of the other.”Footnote 266
Thus, the perspective changes. The question should not be how law can best correspond to reality, but rather in what ways legal and technological constructions of realities are adaptable both in a mutually beneficial as well as in a potentially dangerous, self-reinforcing way. Consequently, we would neither lament the “law’s state under information-technological conditions,”Footnote 267 nor antagonize policing and technology as such. Supplementing the epistemic perspective with an ethical one might lead to further insight. Naturally, this would not be ethics that posit immutable “objective” moral guidelines. Rather, it would be ethics informed by second-order cybernetics—ethics of alterity for law.
Second-order cybernetic ethics is fundamentally based on “other people’s humanity.”Footnote 268 As von Glasersfeld put it, it arises from its observer-dependent epistemology. Its “concern for others can be grounded in the individual subject’s need for other people in order to establish an intersubjective viability of ways of thinking and acting. Others have to be considered because they are irreplaceable in the construction of a more solid experiential reality.”Footnote 269 This insight into the ethical dimension of constructing realities allows us to reformulate the issue of techno-policing as a loss of alterity. If (wo-)man is erased, “like a face drawn in the sand at the edge of the sea,”Footnote 270 inhumanity threatens to take the place of humanity. Against this drive towards an almost Nietzschean pathos of distance between the law and its subjects, the responsibility towards the other needs to be reaffirmed.
This ethics should not be set against law, but rather transmitted towards law.Footnote 271 The unbearableness of law’s responsibility would not be viewed as a deficiency. On the contrary, the promise of law misses “its own performative objective with structurally determined inevitability.”Footnote 272 In the face of the infinitely demanding demand of alterity,Footnote 273 we would never let the law reach “the ostensible equilibrium of congruence.”Footnote 274 Instead, the law would operate in a status of permanent stable instability,Footnote 275 perpetually falling short of itself, yet never stopping, denying the law any utopian stasis. The stasis produced by supposedly perfect juridico-technical systems threatens this fundamental promise of legal ethics.
Particularly for the question of racial discrimination, techno-policing threatens to replace the multiplicity of the individual with hypostasized collective characteristics such as “race.” It would transform what is merely a name for a social construct into an unchanging fact of being. Instead, “[a]ny anti-racist discourse … must strive not to naturalize/ontologize race and race-thinking and thereby perpetuate that which it seeks to contest.”Footnote 276 Doing justice to another human being should entail shielding them from being reduced to a mere numerical element. On an operational level, this would mean halting both the depersonalization of technologized administrative decision-making and the increasing juridification of data itself at a certain point.
Whilst both law and technological models might gather knowledge and conceive ever more detailed imaginaries of their realities, this ersatz-knowledge is not the real thing, insofar as the real thing is inaccessible—there is no unitary perspective, no Archimedean point. Instead, the blind spots and specific observatory consequences of a specific perspective become the focal point of discourse. This could ultimately lead to another paradigm shift in police law that might also be put in the terms of cybernetics—in this case, second-order cybernetics. The shift would once again transform our understanding of knowledge, accepting that paradoxically, gathering knowledge and conceiving ever more precise cybernetic models of criminality does not allow us to attain all-encompassing knowledge. As a result, administrative law would no longer view uncertainty or a lack of knowledge from a standpoint of deficiency. Rather, it would concentrate on the procedural means to deal with the state of uncertainty and free itself of the utopian drive towards homeostasis.
F. Conclusion
In Campanella’s City of the Sun, its inhabitants, the Solarians bestow surnames on eminent citizens. “It is not mere chance that determines the name of a person,” but rather it is assigned “according to some characteristic.”Footnote 277 Herold’s appellation as “Kommissar Computer” might be read as such an awarded name. Of course, that appellation was pejorative, and Herold ultimately felt himself to be a failure after the assassinations of 1977—he could have legitimately refused an appellation that wholly identified him with the shortcomings of his technological apparatus. Perhaps a more fitting view that follows the Solarian naming tradition would consider Herold’s actual surname. Herold heralded the dawning of the digital age—he was a predecessor, not the one to enact the changes of the new epoch, but the one to proclaim them and announce them to the world. Technology has become “our epoch’s imaginary standpoint.”Footnote 278 Cybernetics does not merely inform us about “scientific, technical, social, and cultural turns of the post-war era.” Rather, it remains an “imaginary point” that continues to produce novel and relevant effects,Footnote 279 including for the world of law. It is up to us to decide how to deal with it.
For all of Herold’s faults, his hopes of a democratic and just policing remain significant. As Herold tragically stated towards the end of his tenure in 1979:
One has to create a liveable [lebenswert] state. A citizens’ state—a transparent state. And that you can only render transparent in a technical manner. Yes, of course that is a City of the Sun, but one that is feasible today. Here, within the police, it’s feasible. I don’t know why one does not want to understand that—or am I barking up the wrong tree? (oder bin ich da auf einem ganz falschen Dampfer?)Footnote 280
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