Abstract
The paper connects the potentially disruptive effects of Artificial Intelligence (AI) deployment in the administration of justice to the pre-existing trajectories and consequences of court technology development. The theoretical framework combines Luhmann’s theory of technology with actor–network theory to analyse how the new digital environment affects judicial agency. Then, it explores law and technology dynamics to map out the conditions that make legal the use of technologies in judicial proceedings. The framework is applied to analyse ‘traditional’ digital technologies (simple online forms and large-scale e-justice platforms) and AI-based systems (speech-to-text and recidivism assessment). The case comparison shows similarities and dynamics triggered by AI and traditional technologies, as well as a radical difference. While system developers and owners remain accountable before the law for the functioning of traditional systems, with AI, such accountability is transferred to users. Judges—users in general—remain accountable for the consequences of their actions supported or suggested by systems that are opaque and autonomous. This contingency, if not adequately faced with new forms of accountability, restricts the areas in which AI can be used without hampering judicial integrity.
Highlights
In the last few years, scholars, practitioners and policymakers have realised that Artificial Intelligence (AI) might bring disruptive changes to the functioning of courts and judicial decision-making.[1]
Whether the system automates some tasks previously performed by judges or clerks or provides guidance to their actions, two key questions arise: what should the role of legal professionals be in making the inscription, principally when it entails the core of judicial functions; and how can it be checked that the inscription—and the consequent pre-packed interpretation of the law—is coherent with the text of the law and the interpretation made by individual judges or superior courts
Most of the dynamics observed with AI occur with ‘traditional’ digital technologies
Summary
In the last few years, scholars, practitioners and policymakers have realised that Artificial Intelligence (AI) might bring disruptive changes to the functioning of courts and judicial decision-making.[1]. Whether the system automates some tasks previously performed by judges or clerks or provides guidance to their actions, two key questions arise: what should the role of legal professionals be in making the inscription, principally when it entails the core of judicial functions; and how can it be checked that the inscription—and the consequent pre-packed interpretation of the law—is coherent with the text of the law and the interpretation made by individual judges or superior courts This coherence cannot be taken for granted and there are already cases in which superior courts have ruled against the interpretation of the law inscribed in specific systems.[22] The concepts of functional simplification and closure provide a second perspective that is relevant to the discussion of this issue
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