To what extent do you believe AI could ever replace the role of human judges? And what would be the benefits or potential drawbacks of integrating artificial intelligence in this way?
In the jurisdiction of England and Wales nothing can be said to be certain, except death, taxes, and the importance of not having your case heard in front of a hungry judge before lunchtime. This however raises the question as to whether artificial intelligence (“AI”) could or should replace human judges?
Recently Vos MR has said there is a possibility that AI may become capable of making decisions in court, such as ruling on procedural issues.[1] The impact of AI on the future of legal services and the judiciary however has long been a topic of conversation in the legal sector. Sir Richard Susskind for example, has maintained for years that AI is more than capable of replacing human judges.[2] Vos MR’s prediction is therefore unsurprising and proves that well-respected legal practitioners and scholars believe that AI has a substantial role in the future of the judiciary.
The aim of this paper is to demonstrate the benefits of replacing human judges with AI on procedural matters concerning commercial and compensation disputes and then to explore the effects of its implementation. It will not discuss criminal or family disputes as Vos MR has noted that “unlike commercial and compensation disputes, humans will not accept decisions, such as intensely personal ones, being decided by AI judges.”[3]
This paper will first briefly discuss the technology which has the potential to replace human judges, namely ChatGPT-4 owing to its far greater potential for radical change than anything we have so far encountered. It will then outline the positive effects that the replacement of human judges with AI could have the on the legal system, specifically its potential to increase access to justice. In the final section however, this paper will establish that AI should never replace a human judge at any level of the judiciary because AI’s ethics and reliability should not be wholly trusted.
ChatGPT-4 and the Benefits of an AI Judge
Launched in March 2023, ChatGPT-4 is capable of handling over 25,000 words of text and document search and analysis to generate informed responses.[4] It relies on a large language model (“LLM”) and is supposedly trained on a diverse range of data to understand natural language and nuances of language to generate “human-like responses.” [5]
The most notable benefit of replacing human judges at the lower courts is its ability to speed up and assist with judicial processes. The Universal Declaration of Human Rights (UDHR) states “everyone has the right to obtain legal help and access the justice system”.[6] However, according to a Ministry of Justice 2023 report, the average time taken for civil claims and civil multi/fast track claims to go to trial is 51.9 weeks and 79.9 weeks.[7] The result? Access to justice being delayed for over a year. As ChatGPT-4 demonstrates the technical ability to relieve the backlog of civil court claims and increase access to justice, AI judges could play an important role in addressing the issues of accessing justice.
Evidently, AI has not been employed to enhance the legal decision-making process in the courts and tribunals of England and Wales. However, earlier in 2023 it was reported that Judge Juan Manuel Padilla Garcia, who presides over the First Circuit Court in the city of Cartagena, Colombia, used a version of ChatGPT to determine whether an insurance company was legally obliged to cover the costs of a particular medical treatment.[8] It is important to note that the AI response was fact checked and included along with Judge Garcia’s own opinion, however it is clear that Vos MR’s and Susskind’s predictions are coming to light and AI can revolutionise the provision of the judiciary.
The Drawbacks
Whilst AI could have a positive effect on judicial processes, at the same time it could compromise the fair treatment that civilians must be afforded by the law. To begin with, an AI judge powered by the likes of ChatGPT-4 on cases concerning procedural issues would require the AI judge to assess the facts of the case and decide any issues of law after learning the parties’ arguments. Whilst every first-year law student is familiar with resolving fictional legal claims by working through the ‘FIRAC’ technique, in reality, handing down judgment on even the most basic legal claims has more nuances than simply applying a rule to a set of facts. For example, the Claimant may win on some issues, the Defendant on others and therefore there is no clear winner. In June 2023 it was highlighted that ChatGPT-4 is “incapable of resolving nuanced situations as it is currently fed with information updated up until September 2021.”[9] This suggests that individuals with complex matters will be in danger of receiving an unjust hearing.
To prevent against AI judges handing down unjust judgments and uphold the rule of law, Vos MR has noted that parties must always have an option to appeal to a human judge.[10] However, this could reverse the aforementioned benefits as every disgruntled losing party will have the right to appeal. Great thinkers such as Smith and Darwin have argued that humans are by nature selfishly competitive[11]and their theory, together with the modern understanding of human nature which suggests that individuals are in pursuit of their own economic self-interest,[12] implies that most, if not every, losing parties before an AI judge will contest their judgment regardless of whether there are findings of facts. This will likely cause disarray as it will go against the duty to give reason established by Flannery v Halifax Estate Agencies Ltd t/a Colleys Professional Services [2000].[13] As a result, it is likely that an AI judge will not only compromise civilians’ fair treatment by the law by its inability to hear complex legal matters but also delay access to justice by generating many appeal cases.
Another drawback of implementing AI judges is owing to its ability to create a real risk to public security and the rule of law as the companies in control of AI technologies should not be trusted to police themselves. ChatGPT is a closed-source and for-profit company whose parent company’s CEO has failed to promise to disclose what data AI models have been trained on,[14] a central issue in planned EU legislation on AI.[15] With or without disclosure, the ability for legislation on AI to keep up with the rapidly changing and advancements of AI capabilities is questionable. Professor Josh Fairfield, law and technology scholar, argues that laws must be drafted in a way that allows for a flexible interpretation.[16] However, making laws flexible enough to keep up with technological progress whilst robust enough will be a difficult challenge.
Conclusion
This paper has identified the benefits and drawbacks of replacing human judges with an AI judge powered by ChatGPT-4. This paper has found that AI can assist with the judicial process and therefore theoretically improve access to justice. However, this paper as identified that an AI judge will in fact not improve access to justice as the organisations behind AI technologies cannot be trusted to police themselves and AI judges cannot be trusted to hand down fair judgments. Therefore, AI technologies should not replace human judges. It does not matter how hungry the judge is who is about to hear your case.
[1] Catherine Baksi | Jonathan Ames Editor Legal, ‘AI May Become More Capable than Human Lawyers, Says Senior Judge’ (28 July 2023) <https://www.thetimes.co.uk/article/ai-may-become-more-capable-than-human-lawyers-says-senior-judge-wfzb298vz> accessed 29 July 2023.
[2] Dan Bindman, ‘Susskind Advocates Role of AI in Transforming Courts’ (Legal Futures, 4 December 2020) <https://www.legalfutures.co.uk/latest-news/susskind-advocates-role-of-ai-in-transforming-courts> accessed 15 July 2023.
[3] Vos Sir Geoffrey, ‘Speech by the Master of the Rolls to the Bar Council of England and Wales’ (21 June 2023) <https://www.judiciary.uk/speech-by-the-master-of-the-rolls-to-the-bar-council-of-england-and-wales/> accessed 29 July 2023.
[4] ‘GPT-4’ <https://openai.com/gpt-4> accessed 29 July 2023.
[5] ‘What Is GPT-4 and How Can You Use It’ <https://sensoriumxr.com/articles/sensoriumxr.com/articles/what-is-chatgpt4> accessed 29 July 2023.
[6] ‘Stand up for Human Rights’ <http://www.standup4humanrights.org/en/> accessed 29 July 2023.
[7] ‘Civil Justice Statistics Quarterly: January to March 2023’ (GOV.UK) <https://www.gov.uk/government/statistics/civil-justice-statistics-quarterly-january-to-march-2023/civil-justice-statistics-quarterly-january-to-march-2023> accessed 29 July 2023.
[8] Luke Taylor, ‘Colombian Judge Says He Used ChatGPT in Ruling’ The Guardian (3 February 2023) <https://www.theguardian.com/technology/2023/feb/03/colombia-judge-chatgpt-ruling> accessed 29 July 2023.
[9] ‘Responsible Use of Chat GPT by Lawyers’ <https://www.dentons.com/en/insights/articles/2023/june/8/responsible-use-of-chat-gpt-by-lawyers> accessed 29 July 2023.
[10] Sir Geoffrey (n 3).
[11] Tetsuo Taka, ‘Was Adam Smith an Evolutionary Economist?: Smith’s Study of Botany and Charles Darwin’s Theory of Morality’ (2021) 18 Evolutionary and Institutional Economics Review 513.
[12] ‘Capitalism FAQ: Theory’ <http://www2.harpercollege.edu/mhealy/eco211f/lectures/captism/capit-2.html> accessed 29 July 2023.
[13] Flannery v Halifax Estate Agencies Ltd t/a Colleys Professional Services [2000] 1 WLR 377.
[14] The editorial board, ‘Can Tech Companies Police Themselves on AI?’ Financial Times (28 July 2023) <https://www.ft.com/content/0df5df23-a337-4c5c-acf5-5254037b9bfa> accessed 29 July 2023.
[15] ‘EU AI Act: First Regulation on Artificial Intelligence | News | European Parliament’ (6 August 2023) <https://www.europarl.europa.eu/news/en/headlines/society/20230601STO93804/eu-ai-act-first-regulation-on-artificial-intelligence> accessed 29 July 2023.
[16] Jeremie Harris, ‘AI Advances, but Cat the Law Keep Up?’ (Medium, 22 July 2021) <https://towardsdatascience.com/ai-advances-but-cat-the-law-keep-up-7d9669ce9a3d> accessed 29 July 2023.
