What’s in the Box? The Legal Requirement to Explain Computationally Aided Decision-Making in Public Administration

Constitutional Challenges in the Algorithmic Society. OUP, 2020

University of Copenhagen Faculty of Law Research Paper No. 2020-97

25 Pages Posted: 14 May 2020 Last revised: 24 Jun 2020

See all articles by Henrik Palmer Olsen

Henrik Palmer Olsen

University of Copenhagen - iCourts - Centre of Excellence for International Courts

Jacob Livingston Slosser

University of Copenhagen - iCourts - Centre of Excellence for International Courts

Thomas Troels Hildebrandt

Software, Data, People & Society

Date Written: April 19, 2020

Abstract

Every day, millions of administrative decisions take place in the public sector: building permits, land use, tax deductions, social welfare support, and access to healthcare, etc. When such decisions affect the rights and duties of individual citizens and/or businesses, they must meet the requirements set out in administrative law. Of those is the requirement that the body responsible for the decision must provide an explanation of the decision to the recipient. As many administrative decisions are being considered for automation through algorithmic decision making (ADM) systems, it raises questions about what kind of explanations they need to provide. Fearing the opaqueness of the dreaded black box of these ADM systems, countless ethical guidelines have been produced, often of a very general character. Rather than adding yet another ethical consideration to what in our view is an already overcrowded ethics-based literature, we focus on a concrete legal approach, and ask: what does the legal requirement to explain a decision in public administration actually entail in regards to both human and computer-aided decision-making? We argue that, instead of pursuing a new approach to explanation, retaining the existing standard (the human-standard) for explanation already enshrined in administrative law will be more meaningful and safe. To add to this we introduce what we call an “administrative Turing test” which could be used to continually validate and strengthen computationally assisted decision-making, providing a benchmark on which future applications of ADM can be measured.

Keywords: Algorithmic Decision Making, Administrative Law, Constitutional Law, Explanation

Suggested Citation

Olsen, Henrik Palmer and Slosser, Jacob Livingston and Hildebrandt, Thomas Troels, What’s in the Box? The Legal Requirement to Explain Computationally Aided Decision-Making in Public Administration (April 19, 2020). Constitutional Challenges in the Algorithmic Society. OUP, 2020, University of Copenhagen Faculty of Law Research Paper No. 2020-97, Available at SSRN: https://ssrn.com/abstract=3580128

Henrik Palmer Olsen

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

Studiestraede 6
Copenhagen, DK-1455
Denmark

Jacob Livingston Slosser (Contact Author)

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

Studiestraede 6
Copenhagen, DK-1455
Denmark

Thomas Troels Hildebrandt

Software, Data, People & Society ( email )

studiestraede 6
copenhagen, 1455
Denmark

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