JSI Seminar: Crowdsourcing and artificial intelligence in constitutional courts

In-person event

In Judgment SU-151/2020 the Constitutional Court of Colombia rendered its decision on a constitutional complaint of a group of journalists. They claim that in certain criminal cases concerning possible corruption by government officials, prosecutors and judges were unsatisfyingly prohibiting the press to attend public criminal law hearings. The petitioners claimed that judges and prosecutors use to limit the constitutional right to free press outside of those exceptions and by means of disproportionate decisions.

The Court made an open call to journalists, prosecutors, judges, and other interested parties to send short videos or writings with relevant information or their views concerning the issue at hand. The Court received 37 videos and writings. All materials were posted online, and people wrote comments on them. The Court was able to process those materials, which reveal that there was indeed and unconstitutional practice. However, the Court could have never processed that information, had it received hundreds or thousands of pieces of information.

This example illustrates how crowdsourcing can assist constitutional courts to overcome their epistemic deficiencies for solving constitutional cases. Those deficiencies can relate to factual or normative matters. Nevertheless, this advantage does not come without risks. Judicial crowdsourcing can be meaningless if it is misused as a mechanism of democratic window-dressing. This risk instantiates if, as it may happen with other mechanisms of digital democracy, it is entirely shaped and controlled by representatives of “existing entrenched social and economic interests” or if constitutional procedural laws include an empowerment for judges to disregard or supersede outcomes of crowdsourcing processes without justification. Furthermore, power brokers can manipulate crowdsourcing mechanisms. Additionally, judicial crowdsourcing can be trivialized if citizens’ suggestions do not elicit deliberation among judges and remain only as an expression lacking any kind of impact. Finally, constitutional courts can use artificial intelligence to analyse big amounts of information that stake-holders submit in the crowdsourcing process. The use of artificial intelligence for those purposes also raises specific concerns of algocratia, opacity, and algorithmic discrimination.

Within the context, the aim of this presentation is to assess the advantages and disadvantages of the use of crowdsourcing and artificial intelligence by Constitutional Courts in complex cases of constitutional adjudication.

About the speaker:

Carlos Bernal

Carlos Bernal is Commissioner of the Inter-American Human Rights Commission. He is professor of law at the University of Dayton (Ohio, USA) and Macquarie University (Sydney, Australia). Between 2017 and 2020, he was Justice at the Colombian Constitutional Court. His qualifications include a LL.B. from the University Externado of Colombia (Bogotá – Colombia) (1996), a S.J.D. from the University of Salamanca (Spain) (2001), and a M.A. (2008) and a Ph.D. in Philosophy (2011) from the University of Florida (U.S.A).

Prof. Bernal’s research focuses on constitutional rights’ interpretation, comparative constitutional change, general jurisprudence -in particular, on the intersection between social ontology and legal theory-, and the philosophical foundations of tort law. His work has been published in high-ranked peer-reviewed journals, books and edited collections in English, Spanish, German, Italian, French, Portuguese, and Russian.

Tuesday 23 May 2023, 6-7.30pm AEST

Venue: Level 4, Common Room, New Law Building (F10), Eastern Avenue, Camperdown campus

CPD Points: 1.5

This event is hosted by the Julius Stone Institute of Jurisprudence at The University of Sydney Law School.