Legal Services and Digital Infrastructures

A New Compass for Better Governance

Daniela Piana

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780367549725
• eBook ISBN: 9781000294453
• Edition: 1
• Topic: Computer Science
• Subtopic: Computer Science General
• Index: Computer Science

This book seeks to provide and promote a better understanding and a more responsive and inclusive governance of the automation and digital devices in public institutions, particularly the law and justice sector.

Concerns related to AI design and use have been exacerbated recently with the recognition of the discriminatory potential that can be embedded into AI applications in public service institutions. This book examines issues relating to the assigning of responsibility in a public service produced and delivered on the basis of an automated mechanism. It encourages critical thinking about the legal services and the justice institutions as they are transformed by AI and automation. It raises awareness as to the prospect of transformation we face in terms of responsibility and of agency and the need to design a citizen-centered and human rights compliant system of technology assessment and AI monitoring and evaluation. The book calls for a comprehensive strategy to enable professional practitioners and decision makers to engage in the design of AI driven legal and justice services. The work draws on on-going research and consulting activities carried out by the author across different countries and different systems in the legal and justice sector.

The book offers a critical approach to encourage a new mindset among legal professionals and the justice institutions thus empowering and training them to develop the necessary responsiveness and accountability in the justice sector and legal systems. It will also be of interest to researchers and academics working in the area of AI, Public Law, Human Rights and Criminal Justice.

1Sailing in open sea

Time will tell whether we are engaging with the right method, on the right agenda. We know one common goal that we must have on the agenda: that is, ensuring that each legal need finds the appropriate path to receive, in the end, a fair, reliable, intelligible, and responsive response.

Having this goal in mind and fully acknowledging the disruptive potential of the digital transformation, one thing we may safely state: today is the right time to engage in a cooperative pattern of institutional design and public awareness enhancement to develop a new compass to govern the digital infrastructures that irrigate “justice systems”.¹

1The semantic of the concept of “justice system” is clarified in this chapter in the next section.

Three valuable principles must inspire this compass: pluralism, trustworthiness, and empirical responsiveness.

Two compelling reasons encourage advancing in the direction of building together a common compass having, as an inspiring principle, the ideal of a fair justice to all: the words “crisis” and “humanism” express synthetically both these reasons.

The concept of “crisis” under discussion is the one rooted in classical culture. In classical times, this concept referred to a critical juncture calling for a crucial and irreversible decision. Referring to the classical philosophy and, even more interestingly, to the classical understandings of the word, the revisited notion of crisis seems to gain an enlightening meaning with Reinhart Koselleck: the “krisis” is mirrored in a sliding door mechanism, such as the one a legal act entails (“urteilsfindung”) (Koselleck 1972). Revisiting the notion of “crisis” through a historical anchoring is particularly necessary for our contemporary society, which is facing a combination of two crises, one that hits the connection between laypeople and the law and the other that influences the relationship between justice systems and technological advancements. Expressing these terms means reframing the “krisis” in terms of a transformative critical juncture.²

2In the fields of social and political science a critical juncture is meant to denote a turning point in the process of change, where several factors are playing as concomitant causes of change. More precisely, critical junctures are recalled in historical institutionalism with reference to the intervention of punctual social facts that endanger a cluster of consequences impinging disruptively upon the state of a matter (Capoccia 2015).

This requires revisiting the pathways through which social needs and values attune to the law and justice institutions, and vice versa. This act, which consists of reviewing our categories, looks very promising from the perspective of going beyond a narrow and somewhat partial view that we have long taken for granted. The reader will be offered a wide range of examples where we highlight the importance of the semantics that we more or less explicitly endorse when we use the key concepts of the mainstreaming narrative about the digital dimension of the rule of law and the justice institution. In many different contexts, the critical review of the words used in the international debate looks very useful in order to take a more aware stance towards the implicit premises these words lead us to accept. One example of this refers to the use of quality of justice. As this book tries to prove, a people-centred perspective leads us to achieve a more responsive, a more fair, and consequently a more acceptable approach to the quality of justice. In the proposal the book puts forth the dimensions of performance and of efficiency, as well as the dimension of formal correctness, all deemed parts – important parts – of a broader perspective.

To assess the appropriateness of the justice response, the book makes a clear claim: the starting point must be the assessment of the legal needs that the society experiences.

The concept of an “appropriate answer” would be equally partially conceived if it were reduced to the pure effective/efficient dimension. What else is necessary to create a genuinely “appropriate answer”? In which manner and under which conditions could digital infrastructures be instrumental in ensuring that appropriateness?

The link between the responsiveness and the governance of the digital infrastructures’ design, development, and use is reassessed in Chapter 6 and in the Conclusion of this book. Here it may be helpful to seriously consider what a few scholars from different perspectives have said:

if the law is understood to be an internal feature of social situations, rather simply an autonomous force acting upon them, we also need to understand how and in what ways these very same situations are constructed by something we call law.

(Ewick and Silbey 1998, p. 35)

Or from another perspective: “what we aim is grasping the social processes that unfold within the production and the evolution of the law” (Commaille 1994). This remark points to the substratum of the legal and institutional phenomena that is embedded in the tacit dimension of knowledge (Polanyi 1966), which is, however, not directly addressed in this book.

“Justice systems” are the most promising and heuristically powerful level of analysis at which to gain a deep and wide understanding of the interaction between people and the law. A justice system is

here a complex interlace of structures, functions, formal and informal rules comprising the whole interface between demands and offers of justice, procedures, routines, practices, embedded know how, and institutionalized problem solving patterns that are adopted, developed, adapted, interpreted, and muddled by situated actors, i.e. lawyers, legal consultants, clerks, judges and prosecutors, experts of mediation, legal officers, attorneys.

(Piana 2016)

Reference to the “justice system” means distancing oneself from two inadequate assumptions that are today prevalent in the international debate: a) justice as a law-centred sector; b) justice as a court-centred system. Both these assumptions are inadequate in probing the nature of the relationship that links society to justice.³

3Both these assumptions originate from an overestimated assessment of the homogeneity featured by the legal needs expressed or experienced by citizens. The “demand” of justice, in a way, is made by a vast variety of different phenomenological situations and experiences where the notion of justice must be appraised in sociolegal terms – rather than in purely legal and formalistic terms. To achieve a better understanding of it, we must respond to the question: “What is asking for a citizen that demands a response from the justice institutions?” The answer is empirical and deserves an empirical treatment.

The socio-legal scholarship offers a vast range of examples. Let’s mention one case as a way of instanciating the general reasoning we want to develop (see for a broader analysis Lacour and Commaille 2019). Let’s take, for example, the case of two landowners who escalate a long-standing tension regarding the border between their own tenants. Even before being confronted by a legal dilemma they experience a practical problem: who has the right to access the small river to water the crops. They may both go to see a lawyer, or, depending on the domestic legal context, they may opt for an extra-judicial settlement. They may ultimately go for a more risky but less costly solution: they try to reach a private agreement, which may over time become embedded into the customary law. This is one of the many faces of the justice system as a complex phenomenon.

Similarly, the shift to remote management of hearings and the consequent adjustment of the pattern of interactions that lawyers undertake with, on the one hand, the clerk office and, on the other hand, the defendant, are faces of the justice system. A justice system is therefore made up not only by formal normativity, but also by social normativity (Commaille 2015).

This notion provides an analytical window to cast fresh light upon the encounter between justice and digital technology. From this angle, technology appears as a macro phenomenon – emerging and manifesting itself through a vast and comprehensive phenomenology – of a socio-technical nature: despite being irrigated by technological artifacts, societies, and social facts still keep functioning on the basis of an intrinsically “social” mechanism: reflexivity. It is because we mean to create a recognizable value that we use remote conferencing: maybe to reduce travel costs, maybe to ensure easy access for all and especially those who are less advantaged, maybe to enable recording and archiving. Similarly, computational tools are applied to a massive dataset to draw information and model public services – among which legal services provided to citizens and society – with an expected higher sustainability. And yet, technology does not play simply the role of an enabler. It reshuffles the mechanisms of social coordination, transforms the agency-structure interfaces, and redesigns the boundaries between spaces and functions (Avgerou and Madon 2004). Accordingly, the encounter between justice and digital technology must be observed, assessed, and ultimately governed through the lens and the tools that are most appropriate for social facts (Forum 2018).

By focusing on the encounter between justice systems and digital technology one avoids both an apocalyptic stance and an undiscerning position towards the scenarios opened by new digital tools and technological achievements in the field of legal services and justice institutions (which are crucial building blocks of the justice system).

The concept of humanism therefore comes as a second, strong reason to engage with the intellectual and practical trajectory this book investigates. We have for a long time been trading off principles in return for short-term and over-simplified solutions (De Monticelli 2015). Roberta De Monticelli expresses this point in terms of abdication from values to facts. In a more policy-oriented perspective, the “factual dominance” entails that the regularities detected in the overall patterns of behaviours are assumed as normative criteria. In many respects, the development of standards that are driven by diffuse effective and efficient practices run the risk of falling victim to this trap, which scholars qualify as the concept of “naturalistic fallacy”. As will be discussed in Chapter 5, data-driven patterns are taken as normative criteria to lead and shape future behaviours. When case law analytics provides normative parameters to orient the decision of a justice actor, we observe the shift from factual knowledge to normative reasoning. However, this shift must be treated with extreme caution. A further example of normative implications triggered by digital transformation is the one experienced in the interplay between human actors and automated devices. Technology introduces countless sources of micro-obligations and micro-constraints in the deployment of our behaviours. Therefore, this book tries to seriously reconsider, in the field of legal services production and distribution, the issue of “normativity” with a careful eye cast on the role played by the digital sources of normativity.

The simple use of the term “intelligence”, in the expression “artificial intelligence” (AI), is normative.

At the basis of the arguments deployed in this book there is a pluralistic understanding of the socio-legal phenomena which goes hand to hand with a pluralistic understanding of the socio-technological phenomena. Legal norms and technical standards intervene in the social matrix, within social behaviours and at the interface between social patterns of interactions. The combination of socio-legal facts and socio-technological facts gives rise to a complex system: it would be a way to mislead and oversimplify if one assumes that the relationship that exists between, on the one hand, law and society and, on the other hand, between law and technology, or between society and technology, is linear and subjected to a reductionist rationale. Three different genera of normativity coexist: social, legal, and technological. This is the fascinating and the challenging nature of the legal and justice services that we are observing at the aube of the 21st century.

Accordingly, this book suggests putting the “human” at the centre. The human is, in the very end, the source of social norms, legal norms, and technical standards. This does not mean that one individual creates them. It means reconsidering not only the substance of the design of the digital technology (which is the shape the technological architecture will take), but also the method adopted to engage all the stakeholders in the design: this is justified, ultimately, by the fact that human beings are holders of precious knowledge, and the combination of the knowledge of many, if made according to a sound method of policy design and implementation assessment, may lead to better results not only in terms of performance, but also in terms of responsiveness. That is the meaning we associate here to the concept of governance.

In the following pages, digital technology is not treated as “technological fact”. The recent transformations undergone by the justice systems, and the outbreak of the intensive application of computation within the realm of law and justice call (all these phenomena together) for a rewording and a reconceptualization. Instead of speaking separately of digital technologies and computation applied within the justice system, it seems preferable to introduce the category of digital infrastructures and, to some extent, “digital infra-functions”.

Information sharing, information management, knowledge embedment into crystalized scripts of tasks inscribed into a software, writing and interpreting, all these functions are parts of systems of interactions that take a distinctive connotation when they are performed within a justice system. Digital technologies reshuffle the way these functions are performed by devoted and specialized structures – such as organizational units, services, and roles within the justice courthouses and in the law firms. Moreover, digital technologies inject a new way of writing information and channeling knowledge and contents from one actor to another, from one source to another, and from one organization to another. Tasks that are directly related to the specific nature of the digital technology need to be integrated into a broader array of tasks that have for a long time been traditionally and repetitively performed within micro and macro patterns of behaviours. This is the reason “infra-functions” are permeating functions performed traditionally by the justice systems. The sum of the traditional functions, determined by compliance to the civil and penal procedural laws, to the routines and the practices of labour and doing things that courts and law firms have developed, and of digitally driven new functions is much more than the simple aggregation of “n + n” items (this means in practical terms that we cannot focus simply on the addition of inputs, such as human resources or technological resources; each input interacts with the other and the overall pattern of interaction can be understood as an addition, rather it looks more like a complex matrix of interdependences). Digital infrastructures are, therefore, stable sets of methods to create order and meaning among actions: they are interlaced with other infrastructures that coexist within the justice systems.

Still, despite the critical role played by digital infrastructures within the transformative processes undergone by the justice systems over the last decades, the “technical” dimension of these processes must not be over-estimated. Beside this, technology and digital infrastructures are not exogenous factors impinging upon a system and influencing the components of this system in a linear, direct, and predictable way. The narrative we need to build is more complex – and maybe more fascinating. By abandoning a genuinely linear understanding of the interaction that technology has with the justice system, one regains the role of the actors, who remain the ultimate and the fundamental engines of change (Lacour and Piana 2019).

Delivering justice for all and ensuring ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• 1 Sailing in open sea
• 2 Reframing the digital picture
• 3 In search of fairness
• 4 System of intelligences
• 5 Leverages of change in the justice system
• 6 A new compass for legal professionals, stakeholders, and policy makers
• Conclusion
• Index