Machine Discretion and Democratic Practice
(2024) In International Journal of Law and Information Technology- Abstract
- The question of discretion in law is often framed as a technical question of correctly applying the rules to the situation at hand. This article questions that framing of discretion and argues that, in a democracy, the exercise of legal discretion is not a technical, but a political question. It a communicative practice, involving the giving and taking of reasons by persons oriented by communicative rationality, and it is jurisgenerative, in that it inevitably involves the making of law. As such, it is an ineluctable element in the processes by which citizens seek to rule themselves.
This article argues that, while machines might be able to exercise discretion framed as a technical question, they cannot engage in communicative... (More) - The question of discretion in law is often framed as a technical question of correctly applying the rules to the situation at hand. This article questions that framing of discretion and argues that, in a democracy, the exercise of legal discretion is not a technical, but a political question. It a communicative practice, involving the giving and taking of reasons by persons oriented by communicative rationality, and it is jurisgenerative, in that it inevitably involves the making of law. As such, it is an ineluctable element in the processes by which citizens seek to rule themselves.
This article argues that, while machines might be able to exercise discretion framed as a technical question, they cannot engage in communicative practice, and therefore relying on machines to exercise legal discretion undermines the possibility of democratic self-rule.
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Please use this url to cite or link to this publication:
https://lup.lub.lu.se/record/d0c7041a-8b3e-419b-96e9-5942a77097f9
- author
- Gill-Pedro, Eduardo LU
- organization
- publishing date
- 2024-08-19
- type
- Contribution to journal
- publication status
- submitted
- subject
- keywords
- Discretion, Democracy, Kelsen, Habermas, Large language models, Artificial Intelligence
- in
- International Journal of Law and Information Technology
- publisher
- Oxford University Press
- ISSN
- 0967-0769
- language
- English
- LU publication?
- yes
- id
- d0c7041a-8b3e-419b-96e9-5942a77097f9
- date added to LUP
- 2024-08-19 16:20:16
- date last changed
- 2024-08-20 08:41:24
@article{d0c7041a-8b3e-419b-96e9-5942a77097f9, abstract = {{The question of discretion in law is often framed as a technical question of correctly applying the rules to the situation at hand. This article questions that framing of discretion and argues that, in a democracy, the exercise of legal discretion is not a technical, but a political question. It a communicative practice, involving the giving and taking of reasons by persons oriented by communicative rationality, and it is jurisgenerative, in that it inevitably involves the making of law. As such, it is an ineluctable element in the processes by which citizens seek to rule themselves.<br/>This article argues that, while machines might be able to exercise discretion framed as a technical question, they cannot engage in communicative practice, and therefore relying on machines to exercise legal discretion undermines the possibility of democratic self-rule.<br/>}}, author = {{Gill-Pedro, Eduardo}}, issn = {{0967-0769}}, keywords = {{Discretion; Democracy; Kelsen; Habermas; Large language models; Artificial Intelligence}}, language = {{eng}}, month = {{08}}, publisher = {{Oxford University Press}}, series = {{International Journal of Law and Information Technology}}, title = {{Machine Discretion and Democratic Practice}}, year = {{2024}}, }