Constitutive Practices of Liberal Legal Orders as Normative Limits on Automation of U.S. Administrative Processes

Abstract

At present, the commercial appeal of automated legal systems rests on three pillars: speed, scale, and preference satisfaction. However, for many parts of the U.S. legal system, there is a common sense that their translation into computation would be inappropriate. This concern about premature or unwise automation has many facets. The flexibility of natural language as opposed to computer languages is critical. A “legal process” account of the rule of law hinges on the availability of human review, appeals, and dialogic interaction.

One possible rejoinder to these specific accounts of the limits of legal automation, for advocates of technology, is to characterize their critics’ treatment of extant legal processes as ossification or naturalization. Ossification refers to a pathological hardening into permanence of practices that are merely contingent. Naturalization denotes the treatment of human-made processes as something like the laws of nature, and thus errantly assuming their lasting endurance or value.

The simultaneous existence of malleability of legal systems, and constitutive practices within them, leads to a two-level consideration of a) what aspects of a liberal legal order are crucial, and b) for those that are crucial, what is lost when the step is either partially or fully automated. Within a sphere of human activity like a liberal legal order, some patterns of action are merely instrumental to achieving ends, while others are essential, or constitutive: the activity should no longer even be considered part of a liberal legal order when the practice ceases. Administrative processes that are simply incidental and instrumental to the legitimate resolution of a case are primed for automation, and it is there to which legal technology should (and often does) turn its attention first. Other practices by persons, for persons, are essential and intrinsically important, and properly resist being converted into machine-readable code. Distinguishing between incidental and constitutive, or instrumentally and intrinsically important aspects of law, should be a recognized part of bounding and guiding legal automation.