Justice 5.0 - The future is here, now what?
Adriana S. L. Esper*
A wise counsellor once told me that Law is linked to the history of our life in community. There are plenty of examples of its importance in organising and maintaining order in societies since ancient times. I believe it would not be an exaggeration to say that man does not exist without Law and Law does not exist without man. Voltaire already said that "the most beautiful function of humanity is to administer justice".
Law has always accompanied the great transformations of humanity, from the invention of writing to today's digital technology. Lawyers, as operators of the law, have a fundamental role in this history and in the administration of justice. In this way, lawyers must adapt to the transformations brought about by new times, just like Law, but without losing its essence, the ethical principle of justice.
The world has gone through several revolutions, all leaving their mark on human history. At the end of the 19th century, in the so-called Society 2.0, typewriters began to be part of the corporate world, facilitating the work that until then was manual. At the end of the 20th century, transitioning from Society 3.0 to Society 4.0, microcomputers replaced typewriters, making the art of writing even easier. Revolution 4.0 brought us the automation of manual processes, through advanced technologies that changed the forms of production and business models worldwide, including the administration of justice.
We are now entering a new era, the so-called Society 5.0, which comes with a new concept of prioritizing humanity. Whereas Society 4.0 aimed to improve and facilitate manual processes, Society 5.0 aims to make use of technology to optimise people's quality of life, that is, machines at the service of human beings.
And it is in this context, of a society in transformation, where several tasks are being replaced by intelligent machines, that the new operator of the Law is inserted - the Lawyer 5.0. And don't worry, he is not a machine.
This lawyer must be a technologically prepared professional, a good operator not only of the Law, but also of these new technologies that have been created to serve him. Professor of the Philosophy of Law and of Legal Informatics at the University of Turin, Ugo Pagallo has already stated: "A lawyer who is not computerized is an illiterate". Certainly, at the end of the 19th century similar criticisms must have been made to professionals who did not have a typewriter.
We are living in a period marked by unprecedented disruption. In a highly competitive market, professionals and companies in the legal sector who are not aligned with this new scenario are already at a disadvantage. One of the great challenges brought about by this new revolution is the training of legal professionals already in the market to deal with the technological transformations and innovations that will become indispensable to their work. As Prof. Richard Susskind said "will you really dedicate your life to compete with these emerging technologies?"
And of these emerging technologies, perhaps the one that stands out the most is artificial intelligence (AI), which can be defined as the ability of machines to think like human beings autonomously (learn, perceive and decide which paths to follow), rationally, in the face of certain situations, all based on patterns and directives fed by huge databases that are constantly updated. AI is everywhere in our daily lives, including in the administration of justice.
A 2015 survey by the Université Paris I Pantheón-Sorbonne[i] on quality of justice, concluded that new technologies are essential tools for court management. According to the research, the digitisation of proceedings in France, particularly of sentences, has expanded the possibilities of research and search for precedents through intelligent AI programmes, thus bringing more quality in court decisions.
The Brazilian judiciary has also been intensifying investments in AI. According to a survey conducted by Fundação Getúlio Vargas (FGV)[ii] in 2020, there are approximately 60 projects in different stages of implementation in our courts. The research contemplated the Supreme Federal Court (STF), the Superior Court of Justice (STJ), the Superior Labour Court (TST), state courts, federal regional courts and regional labour courts, as well as the National Council of Justice (CNJ). One of the main objectives of our courts is that the AI brings procedural celerity.
Like it or not, AI is already part of our lives and there is no doubt of its great benefits. However, it is essential to be careful that technological development does not step outside the human perspective.
Society 5.0 is not only based on the introduction of new tools, but also on the way of acting and knowing how to use these machines. This concept is totally focused on the human being and his needs, with the objective of generating more value and solving problems. Remember that it is up to the lawyer, as a legal practitioner, to deal with different situations, including the application of these new tools. The lawyers of the future will need to adapt to the digital transformation we are going through and be part of the ethical conscience of these transformations.
Ethics must be at the base of the digital transformation. In a scenario of automation of tasks and intelligent tools, creativity, a critical sense and a human eye will be vital differentials for legal professionals to maintain their value and put technology at their service and at the service of justice. Aware of this, authorities around the world have already begun to speak out.
The Commission for the Effectiveness of Justice in Europe published, in February 2019[iii], a charter on the ethical use of AI in judicial systems within the European Union. The document, aimed at public and private systems, recognises the growing importance of AI in contemporary societies and its benefits to the efficiency and quality of justice, but also proposes ethical principles for its use in judicial systems and their environments.
In Brazil, Resolution CNJ 332/2020, also deals with the AI subject and emphasises that the issue of protection of fundamental rights in the implementation and use of AI in processes must meet ethical criteria of transparency, predictability, auditability and guarantee of impartiality and justice, and also highlights the right to privacy and protection of personal data.
The Brazilian Executive Branch in April 2021 defined the Brazilian Strategy for Artificial Intelligence - EBIA, in which it points out guidelines for the adequate use of AI, establishing governance with targets for ethical use. In the Brazilian Congress there are at least two bills under discussion about the use of AI, PLS 872/2021, in the Senate, and PL 21/2020, in the House of Representatives, the latter called Marco Civil da AI. Worldwide, regulations on the subject are also discussed, such as the biometric privacy law that came into force in July this year in New York and the AI regulation project presented for discussion to European Union member countries last April.
The future has arrived, there is no time to lose. Intelligent technologies are already part of courts, of business routines, of our offices, of our daily lives. And the legal professional needs and must learn to use these solutions in his favour, there is no doubt of their benefits. But lawyers must also be capable of imposing limits so that these technologies are effectively employed for the service and well-being of mankind, always respecting fundamental human rights and justice.
"Technology has no conscience of its own. Whether it will become a force for good or evil depends on man", said John F. Kennedy in his iconic 1962 speech. At that time, man had chosen to go to the moon, now we choose to go beyond, and behind us is a past we cannot return to. We need lawyers capable of operating new technologies, but, above all, we need lawyers who know how to be their good conscience. And ethics, with its eternal and timeless principles, of which justice is a part, will be the Lawyer 5.0's great ally on this journey.
And that wise counsellor who inspired me to study law was right, we help to build and write history, now digitally, but without forgetting ethics.
* Adriana S. L. Esper Partner at MSY Advogados; Coordinator of the Data Protection Committee of the E-Commerce Council of Fecomercio/SP; Coordinator of the AI WG of CTS/IBDEE; and Professor of Compliance and Digital Ethics at FIPE- Fundação Instituto de Pesquisas.