Our affiliate researcher Geneviève Vanderstichele obtained a DPhil (PhD) in Law (University of Oxford, without corrections) with a thesis titled ‘The Evolving Role of the Judge in Digitally Assisted Adjudication’. The main research question is how the role of the human judge should evolve when s/he makes judicial decisions with the assistance of so-called legal technologies.

The thesis has a clearly structured architecture, prompted by its multi-disciplinary method. With foundational information from computer and data sciences, philosophy of information and of design, jurisprudence, socio-technical systems theory, and civil procedure and constitutional law, five cumulative layers of arguments have been developed one on top of the other. The focus is on civil (including commercial) disputes, rather than on criminal law.

One of the thesis’ arguments is that it is necessary to distinguish a new (sui generis) programmatic level of law-making, in addition to the general level of law-making by parliaments and precedents and to the specific level of the court case.

It is furthermore argued that judicial decision-making partially shifts (at least) in three ways with the advent of legal tech. First, part of the decision is taken before a specific case comes to its culmination in a concrete, enforceable decision, namely at the time of the design and development of the legal technology that will be used to assist in the concrete case. Second, in addition to this shift in time, there is a partial shift in who/what makes the decision; the designer and developer now partly determine the specific outcome of a concrete case, as does the legal technology. Thus, the human judge has lost her/his monopoly and adjudication is more distributed than it already was. Thirdly and finally, the manner in which a judicial decision is reached changes, as both the reasoning and the content of the dispute are altered by legal tech.

In addition, the thesis posits that the programmatic level of law-making should maintain (and ideally even enhance) essential elements of the existing rule of law. The thesis focusses on two elements: judicial independence and the non-arbitrariness of judicial decisions. First, judicial independence is threatened when powers are transferred excessively to private companies and to the executive branch of the government. Second, a decision can become arbitrary when it – amongst other elements – doesn’t sufficiently take into account the specific circumstances of the parties in the concrete case. Hence, adjudication raises an additional challenge for the rule of law if and when integrating the programmatic level into the decision-making.

An important contribution of the work lies in proposing a more sophisticated view on the interaction between humans and digital systems in adjudication. Rather than resorting to the misleading concept of the ‘robot-judge’, in which a digital system substitutes the human judge, Geneviève moves beyond the object-subject divide. Also, the often vague notions of ‘human-on-the-loop’ or ‘human-in-the-loop’ are re-oriented to (1) the practices of meaning-making with data architectures, digital systems, and networks of organisations and humans as well as to (2) the effects of the cognitive assemblage of humans and systems.

The thesis advocates for involving the judge in the design of digital systems that are used to assist in specific cases, assigning the judge the role of co-designer of those digital assistants. It furthermore suggests that the role of the human judge is evolving into the role of an integrator of the output of digital systems, as elements in the narrative of the specific case. This requires specific reasoning and interpretive skills. It also necessitates a different education of judges, as comprehensively analysed by Prof. Mireille Hildebrandt and Rebecca Williams and Vaclac Janacek. Finally, the judge has more than before the role of the ‘overviewer’, reviewing the quality of digital systems, applied to adjudication or as subject of a dispute between parties.