Artificial Free Thought: Automated Courts and the Independent Algorithm

• Émile Chamberland ^[1]
  1. [1] McGill University

     McGill University

     Canadá

     
• Localización: European Yearbook of Constitutional Law 2023: Constitutional Law in the Digital Era / Charlotte van Oirsouw (ed. lit.), Jurgen de Poorter (ed. lit.), Ingrid Leijten (ed. lit.), Gerhard van der Schyff (ed. lit.), Maarten Stremler (ed. lit.), Maartje de Visser (ed. lit.), 2024, ISBN 978-94-6265-647-5, págs. 195-222
• Idioma: inglés
• Texto completo no disponible (Saber más ...)
• Resumen

  • This chapter reflects on a constitutional problem of the algorithmic state: the automation of courts with the help of artificial intelligence (AI) technologies and its implications for judicial independence. Judicial AI systems, designed by or in collaboration with non-state actors, introduce a new form of influence permeated by technological ideologies. At the same time, automation promises court decisions that are less vulnerable to human biases. This chapter reframes this issue that I describe as the ‘independent algorithm’ problem. The chapter begins by reviewing the theory and history of judicial independence. I find that for historical reasons, traditional conceptions of independence are often bound to the separation of powers doctrine and that as a result, the ideological power of non-state actors such as technological companies has been in large measure ignored in constitutional design. I then review current automated courts initiatives and the actors involved behind the scenes. The fourth and final section of the chapter ponders the ‘independent algorithm’ problem. Making use of the chapter’s findings regarding the foundations of judicial independence, I assess whether the principle, as understood and implemented in constitutional language, can speak to the phenomenon of automated courts. My conclusion is that this is not the case, and thus I plant the seeds for an epistemological approach to judicial independence based on the concept of free thought as envisioned by Bertrand Russell. Artificial free thought is a conception of independence that strives to ensure the intellectual independence of automated court ‘judges’ from all sources of bias, including their designers.