With the permission of his algorithm



The gradual development of artificial intelligence (AI) systems necessitates their expansion into heterogeneous sectors and fields of business, some of which are traditionally reserved for human judgment. This is the case in the field of decision-making par excellence because of its specialization, status and importance: the judicial function. The application of artificial intelligence in this field is one of the most controversial applications, which has caused deep debates among professionals and jurists. Currently, the European Commission, in proposing a regulation of the European Parliament and the Council that establishes harmonized standards in the field of artificial intelligence (artificial intelligence law), classifies the use of artificial intelligence systems as having high risks aimed at assisting a judicial authority in the investigation and interpretation of facts and law, as well as In applying the law to a specific set of facts. Note the use of the verb to assist, which would reveal the auxiliary or instrumental approach — the supporting technologies — to the technological role adopted by the said proposition. Advances in machine learning, big data, or natural language processing have enabled the use of artificial intelligence in legal work, automating tasks, or structuring information through techniques such as probabilistic analysis, comparison of past cases, or logical deduction, facilitating decision-making at work. Legal operator (science of law, “decision support”). In this line, law firms and law firms are the digital spearhead and have systems for predictive analysis of final decisions rendered by a court based on examination of past decisions (predictive justice). The integration of these new tools compatible with procedural guarantees and with the rights of citizens will be one of the aspects that the future law on digital competence for the service of public justice must face and, as far as criminal investigation is concerned, the future criminal procedure law (Article 516 of the draft allows the guarantee judge to authorize the use of systems Automated or intelligent data processing to correlate available correlated or interrelated information on the person being investigated with data from other public or private databases, subject to certain requirements). Relevant Standard News Yes, algorithms are also changing the rules in law firms Belén Rodrigo Automating repetitive tasks, reducing errors in managing documents, analyzing jurisprudence … Artificial intelligence is making its way into the daily life of the legal sector, and the most controversial is the alternative role – Technologies Replacement – , the question in which technologies and ethics are intermingled. In this sense, the Council of the European Union (Conclusions of October 8, 2020 “Access to justice: seizing the opportunities of digitization”) affirmed that “the use of artificial intelligence tools must not conflict with the decision-making authority of judges or with the independence of the judiciary,” adding that “judicial decisions must always be made.” by humans and cannot be delegated to an artificial intelligence tool.” But such a conclusion refers to what ought to be, not to what is. From this last level, the descriptive description raises the question already formulated by Susskind: Is it possible for machines to replace human judges? Obviously, science will have an important weight in the answer and, most likely, will make it positive. It’s possible. In fact, it is already happening in a way. Thus, countries such as Estonia and the Netherlands (e-Court) have announced or tackled AI implementation projects to resolve claims of small amounts and complexity in order to reduce time, relieve court congestion, avoid errors, and achieve predictability and consistency in decisions. Other countries (UK, Canada or Mexico) have developed pilot programs for specific operations (generally “small claims”). But the important thing is not what but how and whether this is appropriate to make one of the powers of the state rest on technology. The answer must pass through correctly defining the judicial action. Obviously, the AI ​​system will easily pass the theoretical tests of the free opposition for admission to the judicial profession, which consist in reciting content previously memorized in time and form. However, the adage “iura novit curia” (the court knows the laws) is a necessary but not sufficient condition of judgment, and the understanding that this function goes beyond the strict and sterile application of the rule to the specific case. Cicero wrote “Summum ius Summa iniuria”. And it is that the basis of the judicial function lies in “iustitia”, and not only in “ius”. The function of arbitration is not reduced to simply projecting syllogisms. This application of the standard is the ripening fruit of a complex simultaneous exercise of a series of considerations, abilities, and decision-making elements that do not appear in any subject and are not subject to protocols a priori: honesty, objectivity, conscientiousness, prudence, security, strength, expertise, intuition, or empathy. The definition drawn up by the English Lord Chancellor Lyndhurst is illustrative when he declares that a judge must be above all a gentleman, have a certain dose of courage and common sense, and if he added also some knowledge of the law it would be very useful. It has already been said in the thirteenth century that judges “mean many good men who are entrusted with the law and apply it” (Part II, v. 4, Law I). The judicial decision maker often works in a complex and changing field. Undefined legal concepts, loopholes, legal contradictions, or doctrinal developments are common obstacles in its path. In general, but more so in systems that give so much creative weight to jurisprudence as common law, it is difficult to take a chance on what would happen with so-called “leading or salient cases”, what would have happened if, for example, the AI ​​system was solved in 1954 (based on statute and case law) in Brown v. Board of Education of Topeka (347 US 483), would it have partially overturned the 1896 Supreme Court decision (Plessy v. Ferguson) that declared the laws unconstitutional? State that discriminates in public schools? It is the fact that decision [exacta] Relying on precedents and statistics does not mean that they are fair, as evidenced by the nuances or jurisprudential turns that have been produced throughout history, taking into account the social reality and the circumstances of the time in which the standards must be applied. Otherwise, there is the danger of justice being frozen or petrified, for, as famous judge Oliver Wendell Holmes declared, “The life of the law was not logic, but experience.” Machine learning systems do not use the skills required to make judicial decisions, which, far from reproducing abstract reasoning, come down to applying algorithms to large amounts of data to infer what a judge can resolve in similar cases. In this way, human judgment (and with it the understanding of the reasons that explain the decision) is replaced, in the three dimensions that Pérez Lunio characterizes (cognition, logical arguments and decision) with the analysis of big data. It is indisputable that the exercise of the judicial function can be improved thanks to technological tools, but the technical aspects of legal knowledge must be added to the science of professional ethics and other elements and values ​​that are difficult to automate, natural and acquired after overcoming, in addition to the profession of law, from the judicial school, a period of supervised training in Various injunctions also perform replacement and reinforcement functions. Michael Ignatieff recently pondered the preference that we citizens should be judged by our peers based on their need to understand us, and this despite natural human fallibility. We want justice to be human and imperfect. It reassures us to believe that there is someone behind the solution to our problems. It seems that if the laws have a soul, then the toga must have a soul, because, as Piero Calamandre reminds us, in judging intuition and feeling often play a more important role than it seems; For something “sentence” is derived from feeling. More information News Yes Poland opens the door for AI to replace arbitrators News Yes The end of the ‘anything goes’ era for AI News ChatGPT founder does warn about need to regulate AI: «Yes, this technology is going wrong, it can go wrong So wrong.” What does Amnesty International say about this debate? In order to clear up the doubts, I directly asked the chatbot ChatGPT whether AI would replace the referees. His answer was politically correct: a complete replacement is unlikely in the foreseeable future, but the technology could be useful for specific tasks. False modesty? We’ll see. David Francisco Blanco is the Attorney General and General Secretary of Red.es

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