Decision-making power and responsibility in an automated administration

Abstract

The paper casts a spotlight on one of the manifold legal questions that arise with the proliferation of artificial intelligence. This new technology is attractive for many fields, including public administration, where it promises greater accuracy and efficiency, freeing up resources for better interaction and engagement with citizens. However, public powers are bound by certain constitutional constraints that must be observed, regardless of whether decisions are made by humans or machines. This includes the non-delegation principle, which aims to limit the delegation and sub-delegation of decisions affecting citizens’ rights in order to ensure governmental accountability, reviewability, and contestability. This puts some constraints on the automation of decision-making by public entities, as algorithmic decision-making entails delegating decisions to software development companies on the one hand, and to algorithms on the other. The present paper reveals and explains these constraints and concludes with suggestions to navigate these conflicts in a manner that satisfies the rule of law while maximizing the benefits of new technologies.