J. Morison and T. McInerney
In S Turenne and M Moussa (eds)
Research Handbook on Judging and the
Judiciary, Edward Elgar Routledge forthcoming 2024.
Abstract
This contribution explores what the activity of judging actually involves and whether it might be replaced by algorithmic technologies, including Large Language Models such as ChatGPT. This involves investigating how algorithmic judging systems operate and might develop, as well as exploring the current limits on using AI in coming to judgment. While it may be accepted that some routine decision can be safely made by machines, others clearly cannot and the focus here is on exploring where and why a decision requires human involvement. This involves considering a range of features centrally involved in judging that may not be capable of being adequately captured by machines. Both the role of judges and wider considerations about the nature and purpose of the legal system are reviewed to support the conclusion that while technology may assist judges, it cannot fully replace them.
Introduction
There is a growing realisation that we may have given away too much to new technologies in general, and to new digital technologies based on algorithms and artificial intelligence (AI) in particular, not to mention the large corporations who largely control these systems. Certainly, as in many other areas, the latest iterations of the tech revolution in the form of ChatGPT and other large language models (LLMs) are
disrupting approaches within law and legal practice, even producing legal judgements.1 This contribution considers a fundamental question about when it is acceptable to use AI in what might be thought of as the essentially human activity of judging disputes. It also explores what ‘acceptable’ means in this context, and tries to establish if there is a bright line where the undoubted value of AI, and the various advantages this may bring, come at too high a cost in terms of what may be lost when the human element is downgraded or eliminated. Much of this involves investigating how algorithmic judging systems operate and might develop, as well as exploring the current limits on using AI in coming to judgment. There are of course some technical arguments here, but the main focus is on what ‘judgment’ in a legal context actually
involves, and what it might not be possible to reproduce satisfactorily in a machine led approach. It is in answering this question that this contribution addresses the themes of this research handbook by attempting to excavate the nature and character of judicial decision-making and exploring the future for trustworthy and accountable judging in an algorithmically driven future.
