ChinAI #128: Taking you to Smart Court

Straton Papagianneas translates Chinese academics' views

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Feature Translation: Can automated justice still be fair? Debates re: implications of smart courts on procedural fairness.

Very excited to feature a translation and analysis this week from Straton Papagianneas, a Phd Candidate at the Leiden Institute for Area Studies, Leiden University, where he studies automation and digitalization of courts and its implications for judicial practice in the People’s Republic of China. Over the course of his research, he has translated over 50 Chinese academic articles, and one of his goals is to introduce this scholarship to a broader audience. Find him on Twitter here. What follows is his analysis (lightly edited by me):

In this 2018 article, two Chinese legal scholars from Zhejiang University, Feng Jiao and Hu Ming, ask what automation and digitalization can do for procedural fairness. They argue that potential benefits include improved efficiency and transparency of the process as well as procedural and substantive consistency. However, they are skeptical about its effectiveness, as they fear it will significantly restrict judicial discretion and undermine judicial authority. In this, they mirror many of the same concerns that can be found in English language literature on automation, algorithmic decision-making, and the use of artificial intelligence in governance in general.

It is interesting to position the scholarship against the official standpoint. It seems that scholars were trying to both temper expectations around AI and question how the singular focus on efficiency and expedition of procedures was giving little consideration to the normative effects of automated justice. The debate gives us insights in how the fairness of automated justice is perceived. Automation and digitalization are said to improve fairness of justice because they cater to a stripped-down notion that focuses primarily on efficiency, compliance, and consistency, rather than protection of individual rights. This somewhat instrumentalist vision of fairness aligns with a positive assessment of automation and digitalization by the Chinese party-state. Chinese scholarship, however, takes a more nuanced approach, and does take into consideration the negative normative effects. It points out that standardization significantly restricts the way Chinese judges can make decision.

Feng and Hu’s work was published in the early days of smart court construction (the policy of “building smart courts” (建设智慧法院) was announced in 2017). This early research gives us a snapshot of the broader Chinese scholarship at the time and the concerns that they were having regarding the use of artificial intelligence, machine learning, and big-data analytics in judicial practice. Since then, a wide range of different initiatives in courts have become operational. What follows are brief summaries of some more recent research on digital litigation:

  • This more recent article (in Mandarin) by Zuo Weimin, professor and Dean of Sichuan University Law School, gives an insightful overview of the current state of digitalisation in Chinese courts, especially related to online litigation, which saw a big jump during the COVID-19 pandemic. Previously, Zuo conducted research on reforms under the smart court policy as well and primarily found that, back in 2019, the so-called ‘smart software’ that was in use to allow treating like cases alike (同案同判), was actually quite useless in helping provide judges with truly relevant reference material. Many of the cases recommended by these systems were “similar, but useless.” These systems are unable to help in complex cases where judges really need guidance. Ironically, where the system is actually successful, the judges don’t need guidance because the cases are straightforward and relatively simple. Zuo’s work together with Feng and Hu are part of a significant group among Chinese legal scholars who are skeptical about automation and digitalization in Chinese courts. Aside from pointing to significant constraints of the so-called “smart-systems” in use, they also pose a lot of ethical questions related to the fairness of this kind of mechanized justice.

  • The 2020 Court Informatization Report includes many case-studies of new initiatives by different courts across the country. It is a treasure trove of information about the nuts and bolts of specific systems, along with different findings about their impact on local court work. The systems covered range from an “e-judge assistant” (similar to the Faxin 2.0 system), an automatic supervision platform, a “fully digitalized judicial supply chain”, etc. Reports like these serve a specific purpose within Chinese policy-making and guidance. Revealing the wide range of policy experiments in smart courts, the report’s overview is important if not only for its detailed description, then at least for the “official” narrative. It is written by court officials for other officials, which makes the report a reliable source of accurate information, and a reference for future developments.

  • What becomes clear from this report, but also from other media reports and writings, is that, in typical Chinese policy-experimentation, many courts have decided for themselves how to fill in the policy of “building smart courts”. This has led to many different systems, designed by a variety of different tech companies, with a varying range of complexity and success. This will make cooperation and information sharing between different judicial organs (as people’s procuratorates and security bureaus also have their own digital platform) only more difficult. Early during this policy-drive, different scholars warned that the fragmented automation and digitalization efforts would lead to the creation of many “isolated data-silos”: many judicial organs now have a digitalized platform and database, but there is little information flow between these different platforms and systems across judicial organs. Therefore, China’s digital justice is extremely decentralized. Whereas usually digitalization and automation of justice are framed as an attempt to centralize and standardize judicial power; it will be interesting to see how this is achieved in such a fragmented field.

Thanks to Straton for sharing his work with us: FULL TRANSLATION OF FENG AND HU PAPER

ChinAI Links (Two to Forward)

Should-watch: Shazeda Ahmed on China’s Applications of Courtroom AI

In a Stanford Human-Centered Artificial Intelligence webinar, from last November, Shazeda Ahmed shared her research, co-authored with Chinese academic Dai Xin, that typologizes and evaluates Chinese smart court technologies. We’ll get to hear more from Shazeda in next week’s issue!

Should-read: Bridging the Gap: The Case for an ‘Incompletely Theorized Agreement’ on AI Policy

Abstract for a recent paper by Charlotte Stix and Matthijs M. Maas in AI and Ethics: “Recent progress in artificial intelligence (AI) raises a wide array of ethical and societal concerns. Accordingly, an appropriate policy approach is urgently needed. While there has been a wave of scholarship in this field, the research community at times appears divided amongst those who emphasize ‘near-term’ concerns and those focusing on ‘long-term’ concerns and corresponding policy measures. In this paper, we seek to examine this alleged ‘gap’, with a view to understanding the practical space for inter-community collaboration on AI policy…We propose that on certain issue areas, scholars working with near-term and long-term perspectives can converge and cooperate on selected mutually beneficial AI policy projects, while maintaining their distinct perspectives.”

Thank you for reading and engaging.

These are Jeff Ding's (sometimes) weekly translations of Chinese-language musings on AI and related topics. Jeff is a PhD candidate in International Relations at the University of Oxford and a researcher at the Center for the Governance of AI at Oxford’s Future of Humanity Institute.

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