By Paramjeet Berwal
‘The rule of law’ implies supremacy of law and legal system in governance. It is supposed to be the foundation of any justice dispensation system that relies on unbiased application of law to real life situations. One of the main principles of the rule of law is that authorities should resort to well established legislative framework including legal statutes, instruments, principles etc. while dispensing justice and should not exercise the power in an arbitrary, ad hoc and discretionary manner (see Stanford Encyclopedia of Philosophy for details). In other words, it should be only the law that should determine the decision of an adjudication process; and, whims and fancies of the presiding judge should have no role in it. There could be various factors responsible for the subjective decision arrived at by ‘human’ judge. The very fact that those factors are extraneous to what should comprise the judicial system, travesty of justice is a logical consequence of this system that lets institutions like judiciary reflect not the principles what it seeks to protect but the will of humans who occupy controlling positions therein. Artificial Intelligence (AI), devoid of any vested interest, in judiciary can help the institution gain back what it sat out to achieve in the first place. An institution should ensure implementation of the principles it is established to aim for and achieve and not the vested interests of vulnerable humans who hold controlling positions in those institutions.
Judges, and administrators who, at times, discharge quasi-judicial functions, are humans and as has been proven by behavioral sciences the actions of humans are not always rational. This makes it important to understand that while adjudicating upon a case, an element of arbitrariness and discretion creeps into decision-making. Also, in countries with higher corruption allegations in judiciary, judges are likely to resort to hindsight reasoning whereby the biased decision with regard to a case is arrived at first and then reasoning to support the same is manufactured by judges. This could be considered common in common law countries and if judicial audit were done of the countries it is likely to come to the light that the rule of law has often been sacrificed in the name of equity and fairness, the two ‘arguments’ that are often ‘used’ by judges to ‘veil’ their decisions if not confirming exactly to the word of law. In other words, there are various approaches adopted in judiciary that leave justice dispensation in the hands of judges who have considerable unchecked power when it comes to delivering justice. Even in civil law countries, judges can resort to an interpretation of statutes while applying the law to typically ‘novel’ facts and circumstances that are ‘peculiar’ to the case under consideration.
The rule of law minus the discretion and arbitrariness exercised by judges and/or administrators is what provides governance and the whole system certainty, clarity, and stability. These factors are conducive to democratization of the system and operation of free market economy.
If AI could replace human judges, not only will the system of justice dispensation become more economically efficient and timely, it will also address the human-factor-induced arbitrariness and discretion. The rule of law is more important in structuring a society that ensures justice delivery at any cost. Only artificial intelligence designed to improve itself on the lines of enforcing the rule of law can get more peace and coexistence in the society characterized by conflict of interests.
The aforementioned also emphasizes the importance of legislative process, thereby, meaning that the economic elite should not be allowed to control and skew the legislative process and policy making (Benjamin and Page, 2014) process. If AI is to apply the rule of law, laws have to be framed for the benefit of all and not to a particular economic end that serves only that segment of society that has lobbied before the Parliamentarians offering them huge donations and sponsoring their election campaigns. Laws should be framed in a neutral manner with values that are progressive and serve all. Whether AI will be helpful in legislative process is a question that deserves delving into, separately.
Disclaimer: The views expressed in this post are that of the Author and do not necessarily reflect the views of the institutions he represents, the Tbilisi Tomorrow Institute or the organisations supporting the Tbilisi Tomorrow Institute.