Myltseva Veronika The legal nature and principles of the predictive

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 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 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 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 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 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 “’s The law needs for its application and litigants decision-making, which entails applying the relevant need 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 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 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 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 , Lee Loevinger even proposed a new science called “” 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 , 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.

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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 . 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 machine learning models are only as reliable as the data identify all the causative factors of a decision and risks they’re trained on. If the underlying data is biased in any of confusion is important. Accordingly based on such form, there is a risk that structural inequalities and unfair findings, CEPEJ foresees a limited use of technologies in biases are not just replicated, but also amplified. In this the sphere of justice: as for example in the case of the case regard, AI engineers must be especially wary of their law valorization by making links among doctrine, blind spots and implicit assumptions; it is not just case law, and in the civil/commercial the choice of machine learning techniques that matters, and case or in the but also all the small decisions about finding, organizing for example determining before sentencing whether or and labelling training data for AI models”12. not to deprive an individual of liberty8. It can be supposed that reservations concerning This reasoning is based on the idea that the computers the broad use of the predictive justice are also related to are intelligent but not wise, they learn by imitation the fact that very often the algorithms are not transparent depending on the certain reference model. In such a way the artificial intelligence and the human intelligence are 9 The judge of the future: artificial intelligence and justice, Themis. compared. And such comparison reveals the eventual 2019. URL: http://www.ejtn.eu/PageFiles/17916/TEAM%20ITALY%20 II%20TH%202019%20D.pdf. limits of the predictive justice technologies. First of all, 10 Daniel L. Chen, Judicial analytics and the great transforma- it is not always obvious how to translate the normative tion of American Law, Artificial intelligence and Law. 2019. URL: https://link.springer.com/article/10.1007/s10506-018-9237-x. 6 Daniel L.Chen, Judicial analytics and the great transforma- 11 Guillaume Zambrano, et predictions jurisprudentielles tion of American law, Artificial Intelligence and Law. 2019. URL: a l’ere des big data : parier sur le resultat (probable) d’un proces. 2015. https://link.springer.com/article/10.1007/s10506-018-9237-x. URL: https://hal.archives-ouvertes.fr/hal-01496098/document. 7 URL: https://lexmachina.com/what-we-do/whats-unique/. 12 Vyacheslav Polonski, Mitigating algorithmic bias in predictive justice: 8 Artificial intelligence and judicial systems: The so-called- predic 4 design principles for AI fairness. 2018. URL: https://towardsdatascience. tive justice, CEPEJ presentation.2018. URL: https://experts-institute.eu/ com/mitigating-algorithmic-bias-in-predictive-justice-ux-design- wp-content/uploads/2018/07/presentation-ia-eng.pdf. principles-for-ai-fairness-machine-learning-d2227ce28099.

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WWW.UNI-GOETTINGEN.DE/REOS Myltseva Veronika The legal nature and principles of the predictive justice and understandable to their users and customers. prevent auditing, understanding, and intervening in these Therefore, the major risk of the discrimination arises. systems are removed. The broad coalition of technology It has been already stated many times that the “different worker organizers, researchers, and is applications designed to facilitate and monitor case playing an increasing role in the push for accountability management and the operation of all parts of the judicial in the technology sector. Applying this power to push system have helped Governments in planning the use for greater accountability presents a hopeful model of resources more strategically, preventing bottlenecks for labor organizing in the public interest, especially and ensuring accountability of individual given the current lack of government regulation, employees”13. But the question remains in the fact external oversight, and other meaningful levers capable that the technologies themselves must be transparent. of reviewing and steering technology company decision And the principle of the transparency in the predictive making”16. justice is directly related to the principle of the human’s “The least objectionable use of computer algorithms control over the use of data used to predict or to forecast is when machines are not making decisions on behalf decisions or other things within the predictive justice. of human beings, but merely creating a fairer context The principle of the control over the use of data within which the humans will make their decisions”17. consist in the fact that the “data subjects should have Also, the judge is not obliged by the forecasts provided some degree of influence over how and why information by the technologies. This principle is to be always kept in about them is used. Certain other principles under mind. The predictive justice is only one of the instruments the privacy theme, including “consent,” “ability to to build a good strategy in the court or to use additional restrict processing,” “right to rectification,” and “right to data and analytics by the judges in the court but not erasure” can be thought of as more specific instantiations the ultimate criteria for the judicial decision. of the control principle since they are mechanisms by Thus, the predictive justice must be approached which a data subject might exert control”14. following several rules: it should be transparent The use of the opaque algorithms in the field of justice and the used algorithms have to be audited and discovered, can substantially reduce the public trust into the whole the data used by the algorithms of the predictive justice judicial system. “Without knowing what the algorithm have to be appropriate, full and true. It is also necessary is using to produce an output, nor how accurate it is, to ensure that procedural fairness and adversarial a citizen might doubt that the government is acting in debate are respected. Finally, these technologies should the citizen’s best interest. Data subjects, when subject to never dehumanize justice. Ideally, lawyers freed from the algorithm, might also doubt that the government is repetitive tasks should be able to use the extra time looking out for them and acting reasonably”15. available to better serve their clients, while the judge, It has to be stated that a sort of balance between who will process fewer cases, will be able to spend the transparency and control over the predictive justice more time on those that will be submitted to him18. technologies and the existing required limitations Transparency of the technologies means “openness to such transparency ( rights, throughout the design, development, and deployment commercial secret, safety requirements, cybersecurity processes. It is recommended to develop “new standards against different types of offences and even the prosy that describe measurable, testable levels of transparency, issue of the real complexity of some technologies) so that systems can be objectively assessed and levels must be found. In such regard, it is advisable to resolve of compliance determined”19. the point by creating expert groups which mandatory And one of the last but not the least aspect which include technical and legal experts. Such groups can be has to be pointed out with respect to the predictive able to find the demanded balance. justice is the ethical principles of use of the predictive Moreover, due to the fact that technologies are justice technologies. CEPEJ adopted a European ethical developing extremely quickly it can be acknowledged on the use of Artificial intelligence in judicial a real lack of the regulating the use of such systems and their environment20. The said document technologies, including the principles of the predictive justice’s use. In this regard, “the regulation can only 16 AI Now report 2018, AI Now Institute, New York University. 2018. URL: https://ainowinstitute.org/AI_Now_2018_Report.pdf. be effective if the legal and technological barriers that 17 Ric Simmons, Big data, machine judges, and the legitimacy of the System, University of California Davis Law 13 E-justice: enhancing transparency, effectiveness and access Review, Vol. 52.2018. URL: https://papers.ssrn.com/sol3/papers. to justice, Summary of presentations and discussion.2016. URL: cfm?abstract_id=3156510. https://www.un.org/ruleoflaw/blog/2016/06/e-justice-sharing-national- 18 Predictive justice: when algorithms pervade the law, Paris Innova- experiences-in-enhancing-transparency-effectiveness-and-access-to-justice/. tion Review. 2017. URL: http://parisinnovationreview.com/articles-en/ 14 Jessica Fjeld, Nele Achten, Hannah Hilligoss, Adam Christopher predictive-justice-when-algorithms-pervade-the-law. Nagy Madhulika Srikumar, Principled artificial intelligence: mapping 19 Aligned Design: A Vision for Prioritizing Human Well-being with consensus in Ethical and Rights-based Approaches to principles for AI. Autonomous and Intelligent Systems, Version 2. IEEE. 2017. URL: http:// 2020. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3518482. standards. ieee.org/develop/indconn/ec/autonomous_ systems.html. 15 Briony Blackmore, Developing transparency requirements for 20 European ethical Charter on the use of Artificial intelligence in the operation of criminal justice algorithms in New Zeland, Thesis (Mas- judicial systems and their environment, CEPEJ, 3–4 december. 2018. ter of arts), University of Otago. 2019. URL: https://ourarchive.otago. URL: https://rm.coe.int/ethical-charter-en-for-publication-4-december- ac.nz/handle/10523/9540. 2018/16808f699c.

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WWW.UNI-GOETTINGEN.DE/REOS Myltseva Veronika The legal nature and principles of the predictive justice reveals to be a framework of principles that can guide implementation. One of the main researchers in the field all involved actors such legislators, judges etc. while of the predictive justice, Antoine Garapon, provides us using technologies in the sphere of justice. And once with the definition of the predictive justice as “a capacity again, the authors of the said document state that “the given to the machines to convert quickly into the natural term predictive justice should be dismissed because it language the applicable law in order to treat a court case, is ambiguous and misleading. These tools are based to put it within the context based on its features (the on methods of analysis of case-law, using statistical place, judges’ personality, lawyers etc) and to anticipate methods that do not in any way reproduce legal reasoning the probability of the decision which can occur”24. And but may attempt to describe it. Analytical biases, if they the main question is not to decide to apply the predictive cannot be totally eliminated, must be identified. The justice or not but rather to determine the scope of its design process and the use of the tool must be embedded application and the ethical principles of its use. in a clear ethical framework”21. Considering that technologies are developing very Justice centers the conversation not on technology quickly and they touch every sphere of the human’s but instead on the people that have been impacted by life, it is very probable that the predictive justice the use of AI systems”22. In such case predictive justice will continue its expansion. Thus, it is substantial deal with the human right and to be an efficient and not to use a prospective and strategic approach which harmful technology the ethical principles have to be guarantees the, transparency, audit and control the basis point from the moment of the design of any of the used algorithms and, above all, the implementation predictive justice’s technology till the moment of its use and respect of the ethical principles of the technologies’ and control from the human side. use in the sphere of justice. The other important point In any case, the role of the human judge in any case which concerns the predictive justice is not just the fact can’t be reduced. “The use of data analytics should not that it manages a big data and then proposes some force a judge into accepting conventional thinking so as statistical analysis. The point is that due to the machine to be well rated, thus creating a culture of conformity learning capabilities, the predictive justice instruments and inertia”23. can evolve further, by, for example, analyzing wording of the court decisions, and therefore provide practitioners Conclusions and researchers with the powerful legal instrument to use in their work. The predictive justice is not a myth; it is a reality Finally, it is relevant to emphasize that predictive of the modern judicial system. Some countries, such justice is a result of the combination of the variety as the USA, United Kingdom, Canada are already of different disciplines such as the law, IT, psychology, very familiar with this technology, others, including statistics, philosophy and others. In such a way, it has Ukraine, are just at the very beginning stage on its to be treated accordingly. Many criteria must be taken into account in order to develop, implement and control 21 European ethical Charter on the use of Artificial intelligence in the technologies of the predictive justice. It obviously judicial systems and their environment, CEPEJ, 3–4 december. 2018. URL: https://rm.coe.int/ethical-charter-en-for-publication-4-december- demands great efforts from different involved parts, 2018/16808f699c. starting from it developers and ending by the legislator, 22 Sherry Wong, AI Justice: When AI principles are not enough, Medium.2019. URL: https://medium.com/@Sherryingwong/ai-justice- judges and trial participants. when-ai-principles-are-not-enough-639e5b06a1a8. 23 Christophe Roquilly, Predictive justice: failsafe or false promise. 2019. URL: https://master.edhec.edu/news/predictive-justice-failsafe-or- 24 Antoine Garapon, Jean Lassegue, Justice digital, Revolution gra- false-promise. phique et rupture anthropologique, PUF. 2018. P. 219–364.

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