Oikeuden kieli ja automaatio – mahdoton yhtälö?
Keywords:
oikeuden kieli, harkintavalta, automaattinen päätöksenteko, laillisuusperiaate, julkinen valtaAbstract
The language of law and automation – an impossible equation?
The article discusses the language of law as an object of automation. The goal of the article is theoretical and its context is that of public law. When legal practices are increasingly automated, the question of how to translate the language of law into a computer code, becomes urgent. The article presents two theoretical perspectives regarding the indeterminacy of the language of law: H. L. A. Hart’s idea of the open texture of law, and the view of the Critical Legal Studies movement on the contradictory nature of the legal system, and the political bias in legal interpretation. Both views consider the formalistic and mechanistic interpretation of law as impossible due to the indeterminacy of the language of law. The article also discusses the discourse on so-called automation-friendly legislation and its endeavour to simplify legal language to facilitate automation. This discourse considers the formalistic interpretation of law – at least, implicitly – possible. Therefore, the main tension in the article is formed around the question of how the language of law is as an object of automation and what is lost – if anything – if the indeterminacy of law were to be reduced. The article argues that 1) the power or deliberation is the framework in which the indeterminacy of the language of law is conceptualised at least in public law thinking in Finland, and 2) the indeterminacy of the language of law is understood as an issue that makes automation more difficult but not impossible in mainstream discussions on legal automation. These arguments make visible new tasks to legal scholarship, as the changing roles of humans and machines applying law require new thinking and new conceptualisations.
