Case law and algorithm

II – An indirect performative effect

The use of these new techniques in the legal and judicial field has led to the need to give it a name, that of “predictive justice”.12 or “quantitative justice”13. The solutions obtained by quantitative justice work as follows: in the interface, the user fills in a certain number of words (such as “court of appeal of X”, “physical injuries”). The tool queries a database to extract all decisions containing the requested terms. Finally, from the case law decisions found, the software calculates statistics on these decisions (percentage of cases where such and such a party was able to win the case, average amount of compensation awarded, etc.)14. The predictive judgment thus becomes the result of a calculation made on the basis of decisions already rendered. It is true, as Loïc Cadiet had pointed out, that predictive justice “opens up prospects for studying the activity of courts that have not existed until now”15. If we stick to its promises of increased justice to help the judge in his task, digital justice has many positive points. However, the digital, by the new form of truth that it brings, would compete with the ritual form of the trial, traditionally accepted in our procedure for several centuries. It sometimes arouses, from a scientistic perspective, the wildest, most unexpected and above all the most disproportionate hopes. This approach of an automated, dehumanized, even decontextualized judgment makes us forget that a judgment is necessarily the fruit of reflection, the fruit of time. It is on this that the symbolic effectiveness of the trial rests.16. The flesh-and-blood judge must not give way to the virtual judge. We must not forget that statistical correlations do not always make sense. Correlation should not be confused with causation. Indeed, if a correlation is a statistical link which does not make it possible to know which variable acts on the other, causality is a link which affirms that one variable acts on another. In other words, if two events are close in time or space, we can say that they are correlated. However, this does not necessarily mean that one caused the other.17… Thus, predictive justice could present as truth what is only an artifice. Legal language has a performative value in the sense given to it by John Austin18. When a judge states in a judgment that he is condemning someone to a penalty, his statement generally results in an effective penalty.19. This is the almost magical value of legal words20. Predictive justice could become performative when algorithms apply directly to litigation21. If for the time being, these tools are only an aid to accompany the judge in his work, the risk of transformation of norms should not be overlooked. Predictive justice could, in fact, generate a kind of secondary normativity. This can lead, in a way, to the substitution of the rule of law itself by the standard of application.22. The judge would then be almost obliged to submit to the prediction of the algorithm. This is where predictive justice could become a “self-fulfilling prophecy”23 (self-fulfilling prophecy). It is an initially false definition of a situation, but this erroneous definition elicits a new behavior, which makes it true. It is an assertion that induces behaviors likely to validate it24. Following this logic, predictive justice will present X thing as what appears to be a normal situation and force the judge to comply with it.

The materialization of the performative effect is exponential insofar as the reaction of obedience that it entails then reinforces the algorithm in the reality of its statement.25. In its decision-making support function available to the magistrate, digital justice would have an indirect performative effect. Artificial intelligence predicts the judge’s decision from data accumulated in a database containing previous decisions. The approach therefore invites us to reproduce the past, by not allowing evolution. This is a major risk.

Moreover, wouldn’t this digital revolution lead to a submission to the governance of numbers, as Alain Supiot recently thought?26 ? Let us not forget that if the mathematical law is absolute, the juridical law is relative; putting it into practice depends on the judge’s interpretation and its adaptability to the situations at hand. Thus, two judges applying the same rule can render two different decisions, depending on the case before them. Justice must retain its objective, which is to give everyone his due, and must not turn into the mechanical adjustment of men whom we would like to spare the trouble of having to meet.27. The law, in its essence, seeks, with humanity, to reconcile the major balances, in that it protects the weak against the strong. It is not certain that the algorithm can be based, as much as man can, on these values, which are nevertheless essential in our legal and judicial system. Technical normativity should not replace the normativity of the algorithm28. Digital is bringing about a profound upheaval in social practices and justice is also being impacted. We must not forget that the use of algorithms must be complementary to the work of the judge, and not completely replace it… Predictive justice is only one illustration, among others, of governance by numbers which drives our society. It is undoubtedly destined to develop: it will have to be controlled to avoid the excesses of which this system is the bearer.

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Case law and algorithm

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