The Legal Nature and Principles of the Predictive Justice

Myltseva Veronika The legal nature and principles of the predictive justice The legal nature and principles of the predictive justice Myltseva Veronika Ph.D. Student of Justice Department of Taras Shevchenko National University of Kyiv, Ukraine The paper highlights the concept of the predictive justice and its principles of use. Through the legal analysis of the said concept and exploration of differentpro and contra arguments which have to be taken into account while using predictive justice, the author exposes the framework of the predictive justice in the modern society. Thus, on the one hand, information and telecommunications technologies allow the predictability and standardization of the court decisions. On the other hand, the issue of avoiding prejudice and discrimination in rendering the court decisions is very important, outlining the existing limitations of the current technologies’ use. The necessity to follow the rule of law in the implementation of the predictive justice is strongly emphasized. Also, the paper highlights that the discrimination’s avoidance and the proper use of different technologies in the predictive justice requires the elaboration and adoption of the ethical principles based on which the predictive justice shall operate. Therefore, any technology’s use in the sphere of justice, regardless its complexity and performance capabilities, shall above all guarantee the respect of the rights and freedoms of the individuals and in no way limit or distort them. The modern technologies of the predictive justice are now various and some of them are indeed very sophisticated. Being said that, they are always based on the certain reference model. That is why it is crucial to adopt a model which is structured according to the criteria which are relevant and objective criteria as much as it is possible. Considering the mentioned above, the further development of the predictive justice demands a close and comprehensive collaboration between different practitioners in order to elaborate an appropriate legal regulation of such technology and to attend the positive effects from its use. The legal profession is definitely under the deep transformation due to the predictive justice’ tools. It is substantial that such transformation results into the guarantee of the access to justice and fair trial for any person. Introduction matters as the quantitative analysis of judicial behavior, the application of communication and information Modern society has received a powerful instrument theory to legal expression, the use of mathematical by introduction the legal technology into the sphere logic in law, the retrieval of legal data by electronic of justice. The main sense of the predictive justice is and mechanical means, and the formulation of a calculus that such technology can be used to predict the chances of legal predictability.”3 of success in a particular case. Actually, it seems to The predictability of the judicial decisions comes be even more appropriate to talk about forecasting from the nature of the law itself, mainly from the idea than predicting meaning that the algorithms helps that the law and its application have to be certain4. to determine the probabilities of success in the case Lawyers and jurists obtain an opportunity to build their based on the analysis of the previous decisions in strategy in a more efficient way. the same category of cases1. This being said a “judge’s The law needs judges for its application and litigants decision-making, which entails applying the relevant need case law to provide for the application of standards law to a specific case, is always based on an individual by judges in these cases. The doctrinal effort assessment”2 But due to the fact that the term predictive of the jurisprudence must reduce the unpredictability justice is already commonly used by different actors in inherent in the function of judging. Predictive justice the sphere of justice we shall continue to use it as well. serves as tool for accomplishing what has always been Nevertheless, the legal framework of the predictive the main task of doctrine: the description of the various justice, its main principles and its influence have to be decisions adopted by the courts and the prediction carefully studied and analyzed. of the decisions that will be adopted in the similar cases5. Different machine learning algorithms can be used Presentation of the main statements to evaluate the effects of the decisions. “Just as much legal research makes recommendations (inputs) based It has to be mentioned that the idea of the technologies’ on theories about the potential consequences of legal use in justice is not so new. In 1963 a well-known change, the predictions of decisions can be used for American lawyer, Lee Loevinger even proposed a new science called “jurimetrics” which deals “with such 3 Lee Loevinger, Jurimetrics: the methodology of legal inquiry, Law and Contemporary Problems, Winter. 1963. URL: https:// scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2945&context=lcp. 1 Eloi Buat-Menard, La justice dire “predictive”: prerequis, risques et 4 Antoine Garapon, Les enjeux de la justice predictive, La semaine attentes – l’experience francaise, Dalloz, 2019/2. P. 269–276. juridique. 2017. URL: https://www.cnil.fr/sites/default/files/atoms/files/ 2 Manfred Riepe, The transparent judge: how artificial intelli- justice_predictive.pdf. gence is changing the judiciary, Legal technology journal. 2019. URL: 5 Zambrano G. Précédents et prédictions jurisprudentielles à l’ère des https://legal-technology.net/en/predictive-justice/. Big Data .2017. URL: https://hal.archives-ouvertes.fr/hal-01496098. RECHT DER OSTEUROPÄISCHEN STAATEN; REOS 03/19 59 WWW.UNI-GOETTINGEN.DE/REOS Myltseva Veronika The legal nature and principles of the predictive justice downstream analyses of causal evaluation of the effects or factual propositions into a language that allows of decisions. The predictions would not be used to computation. This difficulty is declined, in particular: suggest a decision, but used as inputs to increase a) in the complexity to translate in a logically treatable efficiency and fairness of law”6. In such a way predictive form the propositions of everyday life and therefore justice’ s technologies become an efficient instrument also the juridical ones; b) in the difficulty of considering which can help to reduce the uncertainty of the law all the variables that come into play; c) in the difficulty and guarantee the fair administration of justice. That is of dominating ambiguous concepts; in other words why during last years their use become more and more algorithms lack the human ability to individualize. The popular in different countries. other limits consist in the fact that an inferential engine In the USA, for example, the predictive justice based on deductive logic allows to carry out the only is already commonly used. An example can be reasonings dominated by it and the decision is the result illustrated with Lex Machina, one of the most of inferential mechanisms that follow their own logic9. famous corresponding technology. It combines data Meanwhile, such limited view is not supported by and software into a new platform that assist to prepare all researchers in the discipline. For example, Daniel a strategic approach in different legal cases. A category, L. Chen from Toulouse School of Economics, Institute called Legal Analytics provides with the critical strategic for Advanced Study in Toulouse University, France information needed to craft successful legal strategy states that “research at the intersection of machine and gain a winning edge in the highly competitive learning and causal inference is moving quickly. One business and practice of law. And the Case List Analyzer aim of the technology …will be to explicitly allow for enables the technology’s users to select cases based on future improvements, such that the “engine” can be specific criteria and filter those results by case type, date swapped out, without too much difficulty. For example, range, court, judge, patent findings, and more. Motion recent advances in machine learning and econometrics Metrics identifies the docket events and documents allow automating the causal analysis of heterogeneous connected to a specific motion, and provides theCustom impacts of judicial decisions. Other advances bring deep Insights into all activity that led to a court’s grant or learning…to high-dimensional instrumental variables denial of that motion7. (such as text), that we can employ to predict the impact The main point which has to be discussed is of judges’ decisions on populations”10. the scope of application of the predictive justice. And Considering having a precise and quantified statistical that is the most controversial topic. description of the law’s application by the courts, it is In the context of the predictive justice the Council possible to imagine a multitude of intelligent computer of Europe European Commission for the efficiency systems, capable of making legal predictions11. of justice revealed its findings according to which Therefore, it is important to emphasize that a machine does not reproduce legal reasoning but the coherent use of the predictive justice directly only provides a statistical or probabilistic approach; depends from the accuracy and the integrity of data a machine does not explain the meaning of the law or according to which the forecasts are prepared. “The the behavior of judges; it is impossible mechanically

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