Artificial Intelligence and the Crises of Judicial Power: (Not) Cutting the Gordian Knot?

Abstract

Courts across the world are experiencing efficiency and contestation crises. In this context, the question emerges as to the role of automated decision-making and artificial intelligence in addressing and potentially solving these very crises of judicial power. The relationship between digital technologies and judicial power is multi-layered and dynamic. Courts can be both users and regulators of technologies. As users, courts can rely on automated decision-making and artificial intelligence to perform their activities. When algorithmic automation is incorporated in courts’ systems, the guardians of the law are exposed to the ordering power of technology, which, in turn, shapes judicial power. But courts also find themselves increasingly involved in solving legal questions on the use of digital technologies. In so doing, judges regulate algorithms by way judicial interpretation. The chapter illustrates that automated decision-making and artificial intelligence do not offer complete solutions to the crises of judicial power. While these technologies certainly have the potential to solve these crises, they fail to do so because of the complexity of judicial power, requiring high standards of meaningful participatory governance and contestability, and the societal forces that underpin judicial authority and legitimacy.

Keywords: Artificial intelligence, courts, digital constitutionalism, fundamental rights

JEL Classification: k10, k23