Resolute Ambivalence: Why Judiciaries Do Not Institutionalize Their Decision Support Systems

Abstract

This article considers why judiciaries appear to be reluctant to institutionally legitimate judicial decision support systems. While representation of decision processes, design, judicial ownership, the apparent neutrality of data, and 'choice' are all crucial to allaying judicial concern about embracing technological support, it is suggested here that the deepest concern lies in the judicial discourse of 'balance' between formal and substantive visions of justice. Outlining the development of aggregate decision support systems, the article considers the case of New South Wales, which has the longest established judicial decision support system. Revealing a marked judicial ambivalence either to endorse officially, or, to dismiss that system the paper asks whether this ambivalence is simply a symptom of a deeper malaise, namely a 'jurisprudential incoherence' in judicial decisionmaking. Examining the notion of 'jurisprudential incoherence' in judicial thought and behaviour, the article reveals that the assumed 'incoherence' of judicial behaviour stems from a fixation with normative-philosophical justifications for judging, which are also convenient to mechanistic thinking about computerized decision support. For some scholars the supposed problem of 'jurisprudential incoherence' can be challenged by greater transparency in judicial reasoning and accountability. Turning to liberal-legal models of accountability, the paper proposes instead that accountability is an inescapably social practice and that the search for a moral-philosophically coherent judicial 'explanation' of the discretionary judicial decision process is inevitably and necessarily elusive.