Papagianneas on Automated Justice and Fairness in the PRC 

Straton Papagianneas (Leiden University, Leiden Institute for Area Studies) has posted “Automated Justice and Fairness in the PRC” on SSRN. Here is the abstract:

The digitalisation and automation of the judiciary, also known as judicial informatisation, (司法信息化) has been ongoing for two decades in China. The latest development is the emergence of “smart courts” (智慧法院), which are part of the Chinese party-state’s efforts to reform and modernise its governance capacity. These are legal courts where the judicial process is fully conducted digitally, and judicial officers make use of technological applications sustained by algorithms and big-data analytics. The end-goal is to create a judicial decision-making process that is fully conducted in an online judicial ecosystem where the majority of tasks are automated and opportunities for human discretion or interference are minimal.

This article asks how automation and digitalisation satisfy procedural fairness in the PRC? First, it discusses the Chinese conception of judicial fairness through a literature review. It finds that the utilitarian conception of fairness is a reflection of the inherently legalist and instrumentalist vision of law. This is turn, also influences the way innovations, such as judicial automation, are assessed. Then, it contextualises the policy of ‘building smart courts’, launched in 2017, which aimed to automate and digitalise large parts of the judicial process. The policy is part of a larger reform drive that aims to recentralise power and standardise decision-making. Next, it discusses how automation and digitalisation have changed the judicial process, based on a reading of court and media reports of technological applications. The final section analyses the implications of automation and digitalisation for judicial fairness in the PRC.

The article argues that, within the utilitarian conceptualisation of justice and law, automated justice can indeed be considered fair because it improves the quality of procedures to the extent that they facilitate the achievement of the political goals of judicial reform and the judiciary in general.