The Challenges of Artificial Judicial Decision-Making for Liberal Democracy
In: P. Bystranowski, P. Janik, & M. Próchnicki (Eds.), Judicial Decision-Making. Economic Analysis of Law in European Legal Scholarship, vol 14. Springer, Cham. (2022). https://doi.org/10.1007/978-3-031-11744-2_9
32 Pages Posted: 1 Oct 2021 Last revised: 8 Nov 2022
Date Written: March 17, 2021
The application of artificial intelligence (AI) to judicial decision-making has already begun in many jurisdictions around the world. While AI seems to promise greater fairness, access to justice, and legal certainty, issues of discrimination and transparency have emerged and put liberal democratic principles under pressure, most notably in the context of bail decisions. Despite this, there has been no systematic analysis of the risks to liberal democratic values from implementing AI into judicial decision-making. This article sets out to fill this void by identifying and engaging with challenges arising from artificial judicial decision-making, focusing on three pillars of liberal democracy, namely equal treatment of citizens, transparency, and judicial independence. Methodologically, the work takes a comparative perspective between human and artificial decision-making, using the former as a normative benchmark to evaluate the latter.
The chapter first argues that AI that would improve on equal treatment of citizens has already been developed, but not yet adopted. Second, while the lack of transparency in AI decision-making poses severe risks which ought to be addressed, AI can also increase the transparency of options and trade-offs that policy makers face when considering the consequences of artificial judicial decision-making. Such transparency of options offers tremendous benefits from a democratic perspective. Third, the overall shift of power from human intuition to advanced AI may threaten judicial independence, and with it the separation of powers. While improvements regarding discrimination and transparency are available or on the horizon, it remains unclear how judicial independence can be protected, especially with the potential development of advanced artificial judicial intelligence (AAJI). Working out the political and legal infrastructure to reap the fruits of artificial judicial intelligence in a safe and stable manner should become a priority of future research in this area.
Keywords: Judicial decision-making, artificial intelligence, liberal democracy, discrimination, transparency, judicial independence, separation of powers, advanced artificial judicial intelligence (AAJI)
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