The Rule of the Courts

The algorithm that pronounces the words of the law

to a transformation of the legal order through the system of judicial recourse. All of this implies a pluralistic and open understanding of argumentation processes, which is incorporated into normative constitutions. These consti tutions require justifications for judicial and administrative decisions which are then enshrined in the legal framework of the Constitutional State. But technology is changing things, because it’s incorporating algorithms into decision-making processes, into the processes of applying the law. This substitution of process by the algorithm also changes the perception of the law, because it’s no longer argumentative and pluralistic. Now we find ourselves once again facing mathematical processes of applying the law in which the judge may be reduced to being a mere notary, in this case of what the algorithm decides, with the algorithm then becoming “the mouth that pronounces the words of the law”. We are certainly still in the early stages of this development, but there are already worrying signs that algorithms are influencing legal proceedings, either directly or indirectly. One indirect way this occurs is through the drafting of legal claims using generative AI, which can result in arguments based on fabricated legal sources invented by the ChatGPT application. This poses an inherent risk to legal certainty. If courts fail to detect these falsifications, references to non-existent rulings could be incorporated into the legal system (a particularly serious issue in a case-law system like the American one, where the first problems have already arisen 44 ), and these references could become consolidated through repeated citation. Furthermore, we have already witnessed examples of judges using generative AI directly to draft their rulings 45 . 44 The first known case involves an American lawyer who used generative AI to draft a lawsuit as early as 2023. The legal precedents cited in the lawsuit were invented by ChatGPT. Cf. B. Weiser, “Here’s What Happens When Your Lawyer Uses ChatGPT”, The New York Times , 27/5/2023. There have been more cases since then. Cf. B. Ambrogi, “Federal Court Suspends Florida Attorney Over Filing Fabricated Cases Hallucinated by AI”, LawSites , March 14, 2024 and, by the same author, “Not Again! Two More Cases, Just this Week, of Hallucinated Citations in Court Filings Leading to Sanctions”, LawSites , 22/2/ 2024. 45 Cf., for example, the following press references: “Juez utilizó una IA para redactar una sentencia y esto fue lo que ocurrió”, La Opinión , 21/11/2023; “Investigan a un juez por

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