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“Law & Technology: The
Future of Law and Justice in the Age of Artificial Intelligence”
First of all, I would like to
thank the Cyprus Bar Association and the European Legal Tech Association for
inviting me to the 7th Educational Conference of the Cyprus
Bar Association.
In the late eighteenth-century
technological developments such as “the steam engine enabled unimaginable
physical feats, leading to mass production, mass transportation, and
railways, transforming therefore the face of the world”. This was termed as
the first machine age.
Veering towards the so called
“second machine age” academics argued that new computer technologies are
leading to a transformation equivalent to the first machine age. Namely, it
was stated that “computers and digital advances are doing for mental power
what the steam engine and its descendants did for muscle power”.
This is where Artificial
Intelligence (AI) comes in. What is AI? AI might be described as using
technology to automate tasks that “normally require human intelligence”. It
must be noted that no single definition of artificial intelligence is
accepted by the scientific community.
However, the European
Commission, via article 3 of the draft Artificial Intelligence Act, sought to
establish a legal definition of the term “artificial intelligence system”.
Namely, it means “...software
that is developed with [specific] techniques and approaches [listed in Annex
1] and can, for a given set of human-defined objectives, generate outputs
such as content, predictions, recommendations, or decisions influencing the
environments they interact with”.
According to Annex 1 of the
draft Act, techniques and approaches used today to develop AI include
“machine learning”, “logic and knowledge-based” systems and “statistical
approaches”.
AI in Law involves the
application of the aforementioned techniques “to make law more
understandable, manageable, useful, accessible or predictable”.
It may be useful to divide the
use of Ai in law, on the one hand, by those who apply the law (judges) and on
the other hand by those that use AI in legal practice (lawyers, paralegals,
researchers etc.). Finally, allow me to add the use of AI in the context of
legislative drafting given my role as the Law Commissioner of the Republic of
Cyprus.
AI used in legal practice may
take several forms. Amongst others these include E-Discovery, Legal Research,
Expertise Automation, Document Management and Predictive Analytics.
E-discovery is considered the
most established use of AI in law indicating to software that analyses a
large volume of documents identifying those which are relevant to the search
criteria, in less time, for a less cost and with far more accuracy than a
number of humans and more specifically a number of lawyers.
Warning about the limits of
such software we are reminded that lawyers are those that have the final say
as to which documents are relevant or not to the law. This is because
e-discovery and I quote “cannot make those decisions which involve
understanding the law and the facts and dealing with strategy, policy, and
other abstractions that AΙ technology today is not good at dealing with”.
We now turn to the use of AΙ by
the judiciary. Besides the use of similar software with those used by the
legal practitioners aiming to accelerate legal research, the judiciary appear
to have different uses for artificial intelligence. Namely, the courts in the
United States have been seen to use risk assessment tools in the criminal justice
system. An example of such tools is the use of software that employs AΙ by
judges, to determine (through a percentage) a defendant’s risk of
reoffending. In order to make such prediction the algorithms behind such
systems use past crime data.
This must be noted contains an
underlying danger. Namely, it was stated that “computed models that learned
pattern from data may be subtly biased against certain groups of people based
upon biases embedded in that data”. A hypothetical example that was given is
where “biased police activity may be embedded in the recorded police arrest
data and thus the machine-learning system that relies on such data may encode
the related biases” targeting therefore a certain group of persons.
Such bias is explicitly dangerous where the judiciary uses Ai in order to
determine a defendant’s risk of reoffending as was seen above.
At this point, let me explain
how Artificial Intelligence can contribute in the legislative drafting
process which is an integral function of the Office of the Law Commissioner
of the Republic of Cyprus.
It is not expected that AΙ
systems will completely replace a human legislative drafter given that
drafting legislation contains too many unpredictable variables making it
impossible for AΙ systems to formulate usable statutory provisions
themselves.
However, AΙ could potentially
take an active part within the legislative drafting process in various
specialized ways.
Firstly, the starting point of
the legislative drafting process is for the drafter to understand the policy
objective behind a proposed bill. Here, AΙ systems could determine whether
the national proposed policy objectives are in accordance with international
obligations and best practice. For instance, they can ensure whether the
policy objectives are in accordance with European Union Law and International
Law in order to further predict whether the proposed national bill will also
meet such international standards.
Finally, the legislative
drafting process stresses the need for careful proof-reading, because it
gives the drafter the opportunity to check for errors in language, such as,
grammar or spelling mistakes or whether plain language is used instead of
archaic language. Hence, it is stated that the inclusion of automated
proof-reading technology developed specifically for the legislative drafting
process, could be vital to detect language errors that a human drafter could
not initially detect.
After analysing certain
examples of the use of AΙ in both the legal practice and the judiciary one
realises that the use of AΙ within the Law concerns majorly the tasks that
are mechanical and repetitive. It is stated, however, that Lawyers “are still
required to provide judgment, empathy, creativity and adaptability”
postponing the fear of legal practitioners as to their replacement and their
redundancy by AΙ.
Nevertheless, it may still be
reasonably argued that the role of the lawyer ought to be redefined namely,
it was stated “that future lawyers will need to be trained in order to assess
the relative strengths and weaknesses of AΙ solutions to meet their clients’
needs”.
A recent example of this is
where major global law firms partnered with a company that provides on-demand
learning programs for law firms and corporations. These aim to train legal
professionals and equip them with the necessary skills to effectively use
emerging tools in the field of generative AΙ, ensuring their competitive
place in a future legal environment.
In conclusion, after listing
the benefits of AΙ, as well as certain concerns as to its development, I
believe that we should not view AΙ as a threat and most importantly we should
not ignore its existence given its transformative role regarding many aspects
of the legal practice, the judiciary and hopefully the legislative drafting
process in the years to come. If understood and used effectively and subject
to proper regulation, AΙ within the Law, Justice and the Legislative drafting
process can truly lead our profession to higher levels in regards to
efficiency, precision and the general quality of the Law.
Thank you.
(NG/SCH)
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