THE law is philosophy put into practice.It is the poetry that imbues the black letters of its words with spirit. Its interpretation is open to  vigorous challenge for an equitable and architectonic system that establishes the parameters for which an action may be justifiably exercised. But it has always been a strictly human endeavour.

Should the law undergo the metamorphosis of artificial advancement? Would an artificial alternative to moral reasoning undermine the ethical foundations of the law? Could it be argued that such an artificial system is vulnerable to intentional or unintentional mismanagement, possibly barring everyday persons from accessing the law all together? Would such a system cause the decline of human ingenuity and compassion in the application of the law?

Legal disputes have till now been determined by human deliberation, due diligence and discussion. If the justice system is seen to lack an ethical foundation, society will lose respect and trust for the law. Can AI do a better job?

What must be established beforehand is an accepted understanding of what does it mean to resolve legal disputes through an artificial medium. Let’s, for the purpose of definition, assume it means decision making in the legal environment that is executed by an intelligent software capable of using algorithms to deliberate on legal cases and produce judgments.

Could an artificial system of law be prone to arbitrary abuses of power or mismanagement due to the anonymity of artificial intelligence and breaches in cybersecurity? Could an external intelligence be trusted with moral and ethical decision making? 

It may be argued that a resolute adoption of AI in law in the future delegitimises the judicial-human process of law by maintaining an electronic distance between two parties, itself impractical in nature. Face-to-face contact, the spoken word, voice tone and body language are necessary to the process of adjudication while online messages can be ambiguous and misinterpreted.

It may be argued that the law is inherently a tedious and vigorous process that requires courts to mediate disputes thoroughly, that is to say that it requires the presence of parties. The rise of cybercrime also poses a serious danger to the implementation of an online system. Such threats and risks are not much different in an arbitration or litigation setting, especially where the parties are involved in complex and sensitive disputes. International arbitrations involve parties that are already potential targets for cybersecurity attacks, such as multinational corporations or NGOs.  A related issue which is appearing regularly in arbitration is the attempted use of evidence obtained through cyberattacks or data breaches. This issue has arisen most predominantly in investment arbitration. For example, in both the Yukos and ConocoPhillips v Venezuela disputes, the parties sought to rely on tampered evidence.

In 2015 the website of the Permanent Court of Arbitration was hacked in the midst of a maritime border dispute between China and the Philippines, demonstrating that cyberattacks may have the potential to seriously undermine the confidentiality of the arbitral process. 

There are those who argue that AI incorporation overestimates its abilities and undermines human ingenuity. The roles of the judge and lawyers are complex. They can incorporate activism, interactions with people, dispute settlement, case management, public and specific education activities, social commentary as well as adjudicatory functions that might be conducted with other judges or experts. Given these variations, it is difficult to determine how artificial intelligence may reshape the judicial role. There is reason to believe that the scientific perspective cannot fully capture first-person decision-making necessary to make moral and other value judgments. Moral judgments may require the first-person perspective while being objectively right or wrong and AI may be incapable of achieving the first-person perspective and therefore of making moral judgments.

The most important question is not if we are able to but rather a question if we ought to develop and deploy resolute AI supported adjudication. It will be likely that the use of technology will inevitably be utilised in dispute resolution. Perhaps the question should not only be explored in binary terms, requesting a solid, objective answer but instead requires a more realistic perspective: one that acknowledges a synergy between the human workforce and artificial machinery operating in tandem in when resolving disputes.

The application of technologies to judicial practice is conducive to the improvement of judicial capacity and the realisation of justice in an efficient way.  This doesn’t infer that the justice system will no longer need humans. Rather, it means that the role of human implication in the process will change. This does not mean computers will determine the law. It only means that they will apply it, according to the rules that humans set, according to their social needs. Supervision of the system will be necessary.  While many argue that legal dispute resolution should be strictly the purview of human judges and lawyers, being the most appropriate means, technological incorporation could provide for a more holistic system. – March 27, 2023.

* Pravin Periasamy reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.