Tania Sourdin

The Role of the Courts in the New Justice System

Some articulations of the ‘multi-door’ justice concept have assumed that the court is at the epicentre of the justice system and is critical in the context of dispute resolution referral. In recent decades, there has been a shift in how courts and conceptualized within the justice system and in the meaning of ‘justice.’ More recent iterations of the concept of justice for example also locate and consider justice from the perspective the relationships that knit individuals and society together. Far from a new development, this conception of justice accords with some Ancient Greek notions of justice, and is a departure from deified notions of justice that suggest that justice equates to ‘judgment from above’. Recognising justice as both a ‘relationship’ and ‘corrective principal’, courts can now be located as both essential and supportive parts of the justice system. However this reconceptualization of the justice system suggests that more informal components of the justice sector can also be recognised as both supportive and essential. This reconceptualization has come about largely as a result of the Access to Justice Movement, and its broadening emphasis on self-determination beyond the adversarial enforcement of rights; a sort of ‘co-existential justice’. While the value of this kind of justice is still in some dispute, the practice of many ADR practitioners attests to the worthiness of outcomes in terms of both procedural and substantive justice, especially where there is an ongoing relationship at stake. For the ideal of justice as relationship, this are resounding implications for society. However, the question of the new role of courts in the new justice system must also consider the relationship between courts and ADR processes: how intertwined or distinct these areas are presents a number of procedural and organisational issues. Currently, the level of communication between courts, ADR practitioners and policy makers has not been sufficient to adequately address this. A return to an ethical conception of justice, one that locates justice both within relationship and within the rule of law and through judicial engagement, will assist different parts of the justice system in coordinating an effective systemic approach.

Do Judges Need to Be Human? The Implications of Technology for Responsive Judging

Judicial responsiveness requires judges to act from the perspective of conscious legal rationality and also with intuition, empathy and compassion. To what extent will the judicial role change in terms of responsiveness as many aspects of human activity, including aspects of the work of lawyers and judges, are not only augmented, but even taken over entirely by replacement technologies? Such technologies are already reshaping the way the legal profession operates, with implications for judges by virtue of how cases are prepared and presented. In relation to courts, the judicial role is also being augmented, and modified, by technological advances, including the growth of online adjudication. There has even been speculation that the role of the judge not only could be taken online, but as computing techniques become more sophisticated, be fully automated. The role of the human judge though is not merely that of a data processor. To reduce judging to such a definition would be to reject not only the humanity of the judge, but also that of all those who come before them. A better understanding of the essential humanity of the judge will help ensure that technology plays a principled and appropriate role in advancing a responsive justice system. Insights from psychoanalytical thought will aid in that understanding, and in developing the code that drives future applications of artificial intelligence in judicial processes.

What Is Responsive Judging

In this chapter the Editors introduce the concept of responsive judging, examine its historical roots, and explore some of its manifestations in courts and judiciaries today. In general terms, judicial responsiveness is an acknowledgement by judges that the law is not an autonomous field of activity answerable only to its own norms, but is rather a semi-autonomous practice embedded in society which answers to the desire for justice of members of that society. Such a conception of responsiveness is compared to more traditional jurisprudential analyses of law and a view of law as intersecting and interacting with society is preferred. Some elements of responsiveness are explored including accountability, concern for consequences of decisions and the experiences of litigants, as well as the need for open communication with the public. Critiques of responsive judging are examined and answered. The chapter concludes with an overview of the aspirations and examples of responsive judging which appear in the following chapters.