The justice of the XXI century will be – too – digital. Already, citizens, scholars more than yesterday and less than tomorrow, are associated with the production of laws. For the first time in Europe and even “maybe in the world,” as soulignaitAxelle Lemaire, the bill “for a digital Republic” presented December 8 Council of Ministers was co-written by the surfers. Five new articles and more than 90 modifications of the bill presented by the Cabinet directly from contributions of citizens. Le Droit 2.0 *, title of the work of law professor Bruno Dondero, is in turmoil. . Interview
The Point.fr: Right, ‘We do not know what it is, “quips Flaubert in his” Dictionary of Received Ideas “. What the right 2.0
Bruno Dondero : 2.0 The right refers to the right as we learn as we practice, and as we all live today in our societies. It is a right of unparalleled complexity, which emanates from a variety of sources and very productive: laws and regulations, over the decisions and courts, these independent administrative authorities, the Constitutional Council and the European institutions, etc.
It is also easy access via the Internet. But this is misleading! This is not because we have access to a text or case law that we necessarily know what the law … This is why legal education is important, and the Internet can play a major role here too. Thus, MOOCs (the Massive Open Online Courses , accessed over the Internet and open to a wide audience) are very successful, especially that beyond the purely technological aspect, they offer an educational model more oriented exchange and discussion than lectures.
Next to MOOCs, we see flourish on the web instructional videos, online consultations. Some sites take beginners by the hand and offer their services increasingly targeted and close to their needs. Online Mediation is also developing a lot … What look like the university and the lawyer tomorrow?
Formidable question! To try to answer it, I will first make a reassuring proposition in any case, the human, the lawyer, retain a key role. To train students to advise and defend litigants or to administer justice, the only machines will not suffice, although they can be of great service. The student or the litigant are not alone facing the law and its uncertainty, waiting for a teacher or a lawyer to come and give them the solution. But to design MOOCs or platforms and monitor their implementation, the role of the human, the role of the lawyer, remains irreplaceable. This does not exclude major upheavals. At university, maintain long-will we see the pedagogical model of lecture that is not filmed, and not even registered? It is likely that new technologies will encourage teachers to offer a diverse distribution between the transmissive (very important nowadays) and interactive. As for lawyers, notaries and other legal professions, the traditional relationship with clients, mainly based on physical appointment, already tends to decline, if not disappear. This will generate another competition linked to the ability to offer attractive services at competitive prices.
Does Robotisation has the right answer to everything?
For automation, we are not saying that R2-D2 will replace our lawyer and our college professor! But we speak, in our case, the use of software to facilitate the practice of law. For example, the individual or business that needs a contract until recently had the choice between filling, without legal assistance, contract form proposed by a publisher or found on the Internet, and the use an attorney to write from A to Z the contract which the individual or company needs. It has existed for some years a middle path, which involves the use of software to help litigants create his contract. The software asks questions to the user, so as to guide the writing and offer him in fine a draft contract. But apart from the fact that this type of software does not include any special features of a record, the role of lawyers remains important, both to design the software or update it as often as developments law requires.
How far can we go in terms of dematerialization of legal services and justice?
Not everything need, with regard to law and justice, to be achieved physically. Some – and I mean some! – Services provided by lawyers may be dematerialized, as in the example of contract drafting software. It is the same for justice. Dematerialization can simplify and speed things up. A predictive software can give litigants an idea of his chances of success before a judge. The delays of justice could be shortened if we abolished some of the physical hearings. But again, it will always be the intervention of a judge in the flesh to declare the law and apply it to parties in a particular case. This is not a software that can deliver justice!
See also our VIDEO on justice dematerialized
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How can we consider that it is more ? men who judge other men
For a small scale, this automated Justice nevertheless already exists: it is the road radars. If I drive over the speed limit, if I cross a red light, if I borrow a bus lane, my offense is discovered, and I automatically tried and convicted by the machine.
But is it conceivable to extend this automated justice with other materials, for example in family law and employment law? Try to imagine what would be justice done by computers.
Take the labor law. Imagine an employee who consistently arrive late at his place of work. This is undoubtedly a real and serious cause for termination. If access to company premises is automated, the employer has the means to prove that the employee has breached its contractual obligations, which required a presence in the company at a given time. Software such as Job Control Dialoca allow even the score by telephone seconded employees at customer sites. The employer may therefore contact the JA (Automated Justice … and not artificial justice) a request for dismissal in a few clicks, indicating the identity of the subject employee, and communicating to the JA both the labor contract employee concerned and electronic evidence of violations. It is conceivable that the employee will automatically receive a letter of dismissal based on the employer’s actions, which have been made exclusively from a computer and in minutes. However, we feel the danger to the very idea of justice requires that the employee may present his views before such an important decision concerning can take effect. It is thus possible that the employee’s delays are in fact caused by malfunction of the company, which could for example make available to its employees remote car parks or imposing strict controls before access the perimeter where the workplace.
It seems to me that if the automated and justice can work for disputes is in compliance with the following conditions.
First condition: the relevant disputes should be simple, but that does not mean there will be only small disputes. A car traveling too fast, a property that is not delivered on time, a payment that is not made on time, can result in an automated manner sanctions. This is already the case in reality, contractual basis. For example, interest and penalties will be automatically deducted from my account by my bank if I am exposed
However, the dismissed employee because he lost the employer’s trust, good or bad that does not make the desired services, the harm caused one company to another through acts of unfair competition, are not eligible assumptions treatment by JA
Second condition. we must, if we want to implement such a way to render justice, allow the possibility of contesting the party who bears the consequences of automation, because the machine can be mistaken, and also because it does not necessarily take into account all parameters. upposons it is recognized one day that the employee can be dismissed quasi-automatically or fully automatically on the basis of a no-show his badge at the door of the business to the contractually scheduled hours. Should the employee may suspend the dismissal at will, to show that it is unfounded. Then repasserait a procedure as it is currently taking place, with the hearings, with the participation the employee and the employer, assisted by their lawyers or union representatives, as is currently the case.
In the case of speed cameras, the ability to “return to the human” is provided for by article L. 130-9 of the Highway Code, which provides: “When performed by devices automatic control have been the subject of an approval, the findings concerning the speed of vehicles, safety distances between vehicles, crossing by vehicles with a signal requiring them stop, non-payment of tolls or the presence of vehicles on certain roads and highways, are authentic until proven otherwise. (…) “
In short, quoiqu’ait said the machine, it is still possible to challenge the statement made by a speed camera. This will apply to a judge and be able to demonstrate that the offense was not made because the radar was faulty because the vehicle in question could not reach the raised speed, because the person driving the vehicle was not one that was considered responsible, etc.
We see all the same, with the example of the radar, the task of one who wants to challenge is theoretically possible, but will rarely be exercised in practice, out of the case the driver will not be good. Therefore it will use technical expertise to establish that the offense was not made, the means to implement will be greater than the amount of the fine in.
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