Can We Make All Legal Norms into Legal Syllogisms and Why is That Important in Times of Artificial Intelligence?

Abstract

Background: The term ‘hard cases’ trace back to Herbert Lionel Adolphus Hart who was one of the first legal philosophers who directly used it in his works and Ronald Myles Dworkin to whom the development and establishment of this concept in legal language is linked. Even though these two legal philosophers in one of the most famous - The Hart–Dworkin – legal debate couldn’t agree on certain things, they both agreed that when dealing with hard cases, there is a need to act creatively in order to resolve such a case properly. The division of cases into easy ones and hard ones gradually lost its popularity, even in legal theory, but perhaps it can be resurrected and used these challenging times to help meet the challenges prompted by technology? Methods: This paper analyses the dichotomy of hard and easy cases as well as circumstances relating to the courts’ decision-making processes in such cases. The essay examines whether the solutions proposed by legal positivism (such as applying syllogisms and precedents) are sufficient to deal with easy cases. The paper also examines what factors analysed by legal realists have an impact on judges while making decisions in hard cases (for example, psychological factors, such as hindsight bias, intuition, hunches, the anchor effect, laziness, unwillingness to take responsibility, or the gambler’s fallacy, as well as social factors, like upbringing, life experience, social relations, gender, age, education, etc.). Given that the article is theoretical in nature, logical, systemic, teleological methods dominate. Both descriptive method and scientific research method were used as well. Results and Conclusions: The author concludes that easy cases should eventually be delegated to artificial intelligence to resolve, whereas hard cases will remain in the competence of human judges, at least until technological development reaches a certain level.

The Concept of Human Rights in the Digital Era/ Changes and Consequences for Judicial Practice

“…These new rights have formed unexpectedly quickly. 25 They are also seen as a potential new catalogue of human rights. In particular, B. Custers offered to discuss new digital rights, in particular the right to be offline, the right to internet access, the right not to know, the right to change your mind, the right to start over with a clean (digital) slate, the right to expiry dates for data, the right to know the value of your data, the right to a clean digital environment, and the right to a safe digital environment.…”

“…As G. Strikaitė-Latušinskaja highlighted, while easy cases 'will be the first ones assigned to artificial intelligence to resolve' , hard cases 'would remain at the discretion of human judges rather than robot judges, at least until the development of technology reaches a certain level, when we can confidently delegate even cases of this scale to an AI' . 45 We have yet to understand whether it is right or wrong to trust artificial intelligence to handle even simple cases.…”