Skip to main content

Lund University Publications

LUND UNIVERSITY LIBRARIES

Machine Discretion and Democratic Practice

Gill-Pedro, Eduardo LU (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.
(Less)
Please use this url to cite or link to this publication:
author
organization
publishing date
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}},
}