Virtue Jurisprudence and the Use of Technology in the Justice Sector
CONVENORS: Amalia Amaya, Iris Van Domselaar
Over the last two decades, the justice sector has made increasing use of technology. This development has primarily consisted of the use of relatively simple assisting technologies, such as automated case management, digital filing, and search engines. Recently, however, more complex applications have been deployed, such as expert systems, predictive analytics and machine learning. Several jurisdictions are now also experimenting with online courts, whose primary function is to adjudicate high-volume, low-value claims. These gained traction in response to the demand for remote court hearings caused by the Covid-19 pandemic. Although the phenomenon is still rare, fully automated AI judges are also being used in some countries to adjudicate ‘simple’ claims.

In this working group, we aim to analyse, evaluate, and enrich the debate on the use of technology in the justice sector by courts, the legal profession, and the police and public agencies from the perspective of virtue jurisprudence.

Virtue jurisprudence is a field of legal scholarship that connects the concept of virtue to law. It emphasizes the importance of character—as opposed to right action or good consequences—in thinking about law and its application. So far, virtue jurisprudential approaches have been developed for legislation, adjudication, different substantive areas of law, legal reasoning, and professional ethics, such as the ethics of judges, lawyers, and public prosecutors.
Linking virtue jurisprudence with the development of digitization and automation not only gives rise to a range of fundamental legal–philosophical and practically pressing questions. It may also lead to insights relevant to current and future challenges faced in practice regarding how to regulate and accommodate the use of technology in the justice sector.

Among many other topics, we encourage scholars to submit papers that contribute to one of the following debates. The first debate concerns the fundamental legal–philosophical discussion. That is, at first blush, the increasing use of technology in the justice sector seems in tension with some basic assumptions underlying virtue jurisprudence, such as the uncodifiability of justice and ethics; the indispensable role of embodied, virtuous legal agents for the quality of practical judgments, legal reasoning, and the justice sector in general; and the crucial formative role that embedded social and discursive practices play in the development and exercise of virtue. How, for instance, does the use of expert systems or predictive analytics by judges fit into this picture? Is artificial phronesis a contradiction in terminis, and what does the answer to this question entail for our assessment of automated decision-making in the justice system? To what extent can the basic assumptions of virtue jurisprudence premises be meaningfully honored in the context of human–machine interaction? Can virtue jurisprudence still make sense in a data instead of a human language driven legal environment?

The second domain we aim to address is legal ethics, a field of scholarship and regulation focusing on the professional values of legal professionals. Many questions can be raised in this domain as well. For instance, to what extent will traditional judicial virtues such as independence, impartiality, and justice need to be reconfigured in a technological, data-driven environment? Will new, highly specific techno-moral virtues need to be developed for legal agents to properly fulfill their roles? What specific virtues will legal professionals need to, for instance, adequately perform in a human–robot interaction or to provide an adequate response to the increasing power and influence of big tech companies on the workings of the justice sector?

The third domain concerns the role of technology in the enhancement of virtue. What role, if any, might technologies such as virtual reality apps or predictive analytics play in reducing the influence of vices such as xenophobia, cowardice, caprice, and arrogance? And to what extent does the role of big tech companies in delivering this ‘virtue-enhancing’ technology leave the legal professions vulnerable to their vices becoming public?

Finally, the push for digitization and automation comes largely from the access to justice movement, which takes seriously the worldwide problem that the legal needs of millions of citizens are not being addressed, partly because of the inefficiency, slowness, and high costs of the justice sector. Virtue jurisprudence assigns a crucial role to the cultivation of virtue—a long, time-consuming, and costly process. This raises the following question: To what extent might virtue jurisprudence be open to the charge that its ideal of the justice sector is insufficiently scalable? Further questions arise regarding the extent to which virtue jurisprudence can address this enormous justice gap and the role technology might play in making virtue scalable—for instance, by introducing triage systems that distinguish between the sorts of cases that require virtuous human legal professionals and those that do not.

We invite those interested in this topic to send their abstracts of 250 words to Amalia Amaya and Iris van Domselaar by 15th May.