Comment Blog 28 June, 2019

Must a Judge be Human?

To what extent will the judicial role be not only augmented, but even taken over entirely by new technologies? Technologies are already reshaping the way the legal profession operates, with implications for judges in terms of how cases are prepared and presented.

In relation to courts, the judicial role is also being augmented, and modified, by technological advances, including the growth of online adjudication. There has even been speculation that the role of the judge not only could be taken online, but as computing techniques become more sophisticated, be fully automated. This appears more likely in relation to lower level judicial decision making and some categories of judicial making (for example administrative decision making).

However, the role of the human judge is not merely that of a data processor. To reduce judging to such a definition may reject not only the humanity of the judge, but also that of all those who come before them. A better understanding of the essential humanity of the judge will help ensure that technology plays a principled and appropriate role in advancing a responsive justice system.

At present, even before a case comes before a judge, artificial intelligence (AI) may already be having an impact on the judicial task by virtue of AI’s impact on the legal profession and how cases are prepared and presented to the court. Impacts here may even include influencing which cases get before a judge, as AI is now able to predict what the outcome of litigation would be if a case were to go to court.

Once cases are before courts, Judge AI is now playing some role in aspects of judicial decision-making. In Mexico, the Expertius system has advised judges and clerks “upon the determination of whether the plaintiff is or is not eligible for granting him/her a pension.” In the United States, AI-driven tools have been used to help determine whether recidivism is more likely in criminal matters and to assist in making decisions about sentencing.

These developments have not been without controversy. A due process challenge by a Wisconsin inmate to the use of a recidivism prediction program was rejected by the state’s Supreme Court, even though the inmate was unable to examine the detail of the software being used against him (it being protected proprietary information). There are also issues about whether “any involvement by an autonomous system in judicial decision-making should provide a satisfactory explanation auditable by a competent human authority” (see Future of Life Institute). The need for such scrutiny became clear in relation to the Wisconsin case, when the investigative journalism organization ProPublica carried out an analysis of “Compas” (the program in question) and found that it was prone to overestimate likelihood of recidivism by black defendants, and underestimate that of white.

Many of the developments in the use of AI in courts to date also assume that the role of a judge is limited to adjudication whereas it is in fact multifaceted. It can incorporate activism, complex interactions with people, dispute settlement, case management, being an educator, social commentary as well the core adjudicatory functions which might be conducted with other judges, or less commonly in some jurisdictions with lay people (juries).

These varying functions are relevant when considering how technology might impact on the role of judges within our society. Alongside technological developments, modern trends in judicial approaches are leading some judges to be more responsive and to embrace the realization that judging requires not only knowledge of the law and the facts of a case, but also the empathic ability to understand the emotions underlying the matters which come before their court; “emotion not alone but in combination with the law, logic, and reason – helps the judges get it right.”

The great British judge, Lord Reid of Drem, famously rejected the notion that judging is a merely mechanical exercise in The Judge as Law Maker in 1971. The right legal answer, he said, was not simply a matter of saying the right “magic words” – or, for our time, using competent AI systems. As we embrace the opportunities AI and online courts can bring to the legal system, we must not lose sight of the importance of human beings in dispensing justice.