The Rule of the Courts

Francisco Balaguer Callejón

Beyond the fact that generative AI malfunctions and that its “halluci nations,” as defined by its creators (as if it were involuntary and not the product of a deficient design of its computer applications), may lead to deficient justifications, the issue has a greater scope than that of a poorly motivated lawsuit or judgment. Even if the argumentation were impeccable, the problem lies in the fact that “the algorithm replaces the process”, producing a conception of law that is largely incompatible with the require ments of the Constitutional State. In short, the digital world and AI are fundamentally changing our understanding of law and the role of judges, taking us back to a time before the Constitutional State. It is important to recognise the tension between the growing use of algorithms and AI in the legal field, and the constitutional principles that govern the judicial function of ensuring the rule of law and fundamental rights. From the perspective of the openness that argumentation and reasoning processes represent for the role of judges and courts in protecting rights and guaranteeing the rule of law, the idea of algorithms replacing the process is unsettling. Without rejecting the advances generated by technological development, we must strive to make them compatible with the civilizational progress that the constitutional state has brought to humanity. Even in the consti tutionalism of the Legal State, when the role of judges was reduced to being “the mouth that pronounces the words of the law,” the law was consid ered an expression of the general will. If, in the future, algorithms pronounce the words of the law, we must ensure that the design of these algorithms is based on the democratic will of the citizens within the constitutional framework, and that the decision-making process does not stifle pluralism through this unsettling formulation whereby the algorithm ends up replacing the processes of argumentation and justification of decisions.

dictar sentencias trabajadas con ChatGPT”, SIN , 2/5/2025 and “’Copiar y pegar’la frase que delató a un juez que usó ChatGPT y ahora es investigado tras la anulación de su fallo”, La Nación , 16/10/2025.

75