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Rules as code and the rule of law: ensuring effective judicial review of administration by software

Kennedy, Rónán
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Publication Date
2024-02-09
Keywords
Rules as Code (RaC), judicial review, software, Pintarich, automated decision-making, rule of law, separation of powers
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Article
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Citation
Kennedy, Rónán. (2024). Rules as code and the rule of law: ensuring effective judicial review of administration by software. Law, Innovation and Technology, 1-24. doi: 10.1080/17579961.2024.2313801
Abstract
This paper considers the possible benefits and substantial risks of ‘Rules as Code’, the parallel drafting of legislation and codification in software, which has been the subject of attention from policy-makers and pilot studies in some jurisdictions. It highlights the long history of these approaches, and the challenges of ossification, mis-translation of rules, and separation of powers problems. It also examines in the detail the Australian Pintarich case, which demonstrates the inadequacy of conventional judicial review of automated decision-making. It outlines some possible solutions to these issues — two ‘internal’ to development processes (greater transparency, and literate pair programming) and two ‘external’ (expanding the capacity of judicial review to look beyond a specific citizen/state interaction and consider the design and development of the controlling software system, and greater cross-disciplinary awareness by lawyers).
Funder
Science Foundation Ireland
Publisher
Taylor and Francis Group
Publisher DOI
10.1080/17579961.2024.2313801
Rights
CC BY-NC-ND 3.0 IE
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School of Law (Scholarly Articles)