“Artificial Intelligence” Makes Judicature More Just, Efficient and Authoritative–the Theoretical Analysis and Practical Exploration of “Artificial Intelligence” in Judicial Field.
Cui Yadong（崔亚东）, President and Chief Justice of Shanghai High People`s Court
The most popular technology term in 2017 is “artificial intelligence”. This technology field that has been around for 60 years rose to fame because of Google AlphaGo’s battle with human. Being unreachable in the past, it is now a household word and is present everywhere, such as Apple’s Siri, Ant Financial’s face payment and Google’s driverless car and so on. It can be said that the era of artificial intelligence has come, and the future of artificial intelligence may bring revolutionary changes to human society 1, like the industrial revolution and the Internet. In the field of justice, “artificial intelligence +” has become a trend. At present, Shanghai High People`s Court actively promotes the fusion of high-tech applications (such as artificial intelligence) and the judicial practice, driving a new stride from big data and “Internet +” to “artificial intelligence”, which help modernize Shanghai court judicial system and competence, and meanwhile conclude theoretical and practical cognition and thinking of artificial intelligence applied in judicial field.
Theoretical Understanding and Analysis of the Introduction of Artificial Intelligence in Judicial Field
Legal Formalism Provides Theoretical Basis for Artificial Intelligence’s Judicial Application
Originating in ancient Rome, legal formalism is a kind of legal thought that highlights logic function. Its core proposition is convinced that legal system is a closed system self-sufficient in logic. It keeps to syllogism reasoning logic model. In other words, it sets legal norm as the major premise and specific case facts as minor premise, and then deduces judgment. 2 According to this theory, a machine can draw a fair verdict by obeying the logic of legal reasoning. Although this theory is criticized as a “vending machine”3, from the perspective of artificial intelligence providing mechanistic explanation for thinking, legal formalism’s mechanistic explanation for legal reasoning just provides a possible theoretical premise for the judicial application of artificial intelligence.
Legal Realism Provides Theoretical Support for Artificial Intelligence Simulating Judge’s Thinking
Legal realism is a legal movement that rose in the 20th century in U.S.A, which questioned traditional legal method from a reverse side, and advocated that legal method must take social interest into the standard of legal argumentation. American jurist Oliver Wendell Holmes Jr.’s famous maxim “The life of the law has not been logic; it has been experience” 5. Legal realism’s emphasis on subjective judge and legal reasoning flexibility promotes artificial intelligence research changing from simulation of the external logic form of legal reasoning to conclusion of the regularity and universality of judgment and exploration of the inner thinking structure of the judge. 6
“Open Texture” Theory Provides Theoretical Innovation for Deep Application of Artificial Intelligence in Judicial Field
Legal formalism is too mechanical, and legal realism is too free, which will adversely affect the fundamental principle of implementing rule governance required by rule of law, and shake the foundation of artificial intelligence in the judicial field. Therefore, this eclectic “Open Texture”7 recognizes the limitations of logic and emphasizes its importance, and denies that the judge judges the case completely based on his own intuitive experience and acknowledges the existence of judicial discretion. Under the guidance of this theory, artificial intelligence can have deeper and wider application in judicial field. On the one hand, rules are used to solve simple and easy questions screened out of complicated problems. On the other hand, it is necessary to use the non-case knowledge, such as the rules, the statements of two parties and common sense, to obtain the preliminary answers, and then compare different cases to check the correctness of the case. “Open Texture” theory affirms the ration of legal formalism and maintains the continuous developmental vitality of judicial practice, making it possible for artificial intelligence to optimize the scientificity and accuracy of judge’s judgment. Shanghai High People’s Court’s undertaking the task of “promoting the reform software of litigation system centered on court trial” is the best practice and interpretation of this theory.
The Present Situation and Practical Value of Artificial Intelligence’s Application in China Justice
On July 9, 2017, General Secretary Xi Jinping made an important instruction: “we must follow the law of justice, and combine the task of deepening the reform of the judicial system and modern science and technology to develop and perfect the legal system of socialism with Chinese characteristics.”
In the new era of artificial intelligence, we not only stand on the shoulders of giants, but also on the top of human wisdom. Deep application of artificial intelligence in judicial field, so to speak, enjoys significant value in improving the quality of justice, judicial efficiency and judicial credibility, and boosting Chinese judicial system reform and Chinese construction of rule of law. The practice of Shanghai High People’s Court fully embodies its value and significance.
Assist Judicial Handling and Improve Judicial Quality and Efficiency
Whether in a Case Law or Statute Law country, voluminous case files and various laws, regulations and judicial interpretations require a lot of time and energy to retrieve, sort, analyze and screen while people’s brain cognitive and memory ability is limited. With powerful storage, retrieval and analysis function, artificial intelligence can make up human limitation of intelligence and energy. It can greatly liberate judicial official’s repetitive mental work and allow them to focus more energy and time on more complex legal reasoning, investigation, judgment and discretion, etc., which greatly improves the quality and efficiency of justice. For instance, courts in Shanghai established a “Shanghai court data system for trial assistance” which is made by 35 subsystems, such as an intelligent handling system, an APP of intelligent terminal handling, an intelligent hearing system and intelligent management system and so on, which provides the judge with diverse, comprehensive and convenient intelligent service. With a daily maximum visit of more than 18000 times, it has become a necessary assistant for the judge.
Promote Judicial Impartiality and Credibility
Because the judicial personnel are different individuals with subjective initiative, there will inevitably be some differences in enforcing uniform standard of law, which will result in inconsistent law enforcement and different judgment of the same case. Application of artificial intelligence can provide relatively unified judicial reasoning and evaluation standard, provide the judge with all similar cases, laws, regulations and judicial interpretations and so on, so the judge can strictly follow the rule of evidence and procedure, which will reduce judicial arbitrariness and effectively guard against unjust, false and erroneous cases, promoting the judicial justice. At the same time, due to artificial intelligence without material desires and feelings, it will not be subject to external disturbance and erosion, so it can eliminate human factors and minimize some practice favoritism and unfair judicial phenomenon, which will surely improve the judicial credibility. Shanghai court intelligent auxiliary handling system has many practical functions, like similar case push service, evidence standard, guidance on rule of evidence, sentence reference, articles of law push. It can automatically push the similar case, match procedural and substantive legal norms for the personnel according to the characteristics the case, which plays a important role in ensuring the quality of case handling.
Serve Public Litigation Needs and Improve Service Quality
“Justice for people” is the fundamental tenet of the people’s court, and high technology is an important means to realize it. On the basis of the “Internet +”, Shanghai court equips 12368 hotline lawsuit service platform with artificial intelligence. Using speech recognition, natural language understanding and speech synthesis, it is highly fused with litigation services to provide people with “all-round, all-weather, zero distance, barrier-free” litigation service, which can effectively solve problems that people reflects strongly: difficulties in case query, litigation consultancy, contacting the judge and waiting for litigation results. Shanghai court use “Internet +”, and “artificial intelligence +” to establish the “Shanghai court lawyer service platform that is open to lawyers nationwide and provides online query, online case registration, online case files and other litigation services. Lawyers can complete litigation procedure without leaving home, which brings great convenience to lawyer, and safeguards lawyers’ rights and interests.
Facilitate Judicial Transparency and Let the Public Feel Justice
Technology enables justice to be achieved in convenience. Guided by the principle of “opening to the public is the rule except particular case”, Shanghai high court make full use of new AI technologies, like natural language understanding, machine learning, image and character recognition identification, and has built 12 judicial service platforms with characteristics of Shanghai court, like trial process platform, judgment document platform, execution information platform, judicial trial live platform, online judicial auction platform and the judicial supervision platform and so on. Also, it has set up an all-around, multilevel and interactive and intelligent open judicial platform, and a open, dynamic, transparent and convenient sunshine judicial mechanism in order to guarantee people’s right to know, participate, express and supervise, making justice available, visible and evaluable. At present, Shanghai court has publicized 830 information items of 112 aspects to the society, and released a total of 23.5 million messages with more than 40,500 daily visits.
Build a Big Data Analysis Platform and Improve Decision-making
Big data and “artificial intelligence+” are the driving forces of scientific decision-making. Shanghai High People’s Court established the first provincial “new judicial think-tank”. Relying on judicial big database and “artificial intelligence+” technology, it established the intelligent analysis platform of trial elevation, civil, commercial, financial, criminal, execution and other trial big data. This platform can analyze and find trial law from the mass trial data, which can enhance the ability of data analysis and processing, knowledge discovery and auxiliary decision-making, so it can promote scientific decision-making of the court, improve its management level, facilitate social governance and construction of Shanghai in safety and the rule of law.
The Application and Result of Artificial Intelligence in the Reform of Litigation System Centered on Court Trial
Shanghai High People’s Court Initiatively and Actively Explores and Undertakes the Task of “Promoting the Reform Software of Litigation System Centered on Court Trial”
The reform of the litigation system centered on court trial is a major reform task set out in the Fourth Plenary Session of the 18th CPC Central Committee. It is also an important task from Central Political and Judiciary Commission to Shanghai High People’s Cuort.
On February 6, 2017, when Meng Jianzhu, Secretary of Central Political and Judiciary Commission, and Han Zheng, Secretary of Shanghai Municipal Party Committee and so on investigated and surveyed in Shanghai High People’s Court, they determined that Shanghai High People’s Court undertakes the task of “Promoting the Reform Software of Litigation System Centered on Court Trial” (hereinafter referred to as the “206 Project”). This is an innovation that combines judicial reform and modern technology, and integrates big data and artificial intelligence into criminal case handling, which is rare at home and abroad, so it is rather difficult.
We cooperated closely with the Shanghai Public Security Bureau, Shanghai People’s Procuratorate, and IFLYTEK Company, and successfully completed the research and development task. After months of hard work (trial operation on 3th May), July 10, 2017, at the promotion meeting of national judicial system reform, Shanghai High People’s Court showed a presentation of “Shanghai Intelligent Auxiliary System of Criminal Case Handling” which won participants’ full affirmation and praise. Secretary Meng Jianzhu in his speech pointed out that Shanghai’s practice has much significance. As “the first to try tomato”, it shows broad prospects. It has found breakthrough point on the thorny way of reform, and we should applaud for their innovation.”
(B) The technical principles of “Intelligent auxiliary case handling system of Shanghai criminal cases”
- Mass judicial big data lays the data source foundation for the “Intelligent auxiliary case handling system of Shanghai criminal cases”
With the rapid development of Internet, the online data has become extremely rich. The multi-sources, real-time, abundant and multi-types data can provide realistic approximations from different perspectives and lay the foundation for the landing application of artificial intelligence, and can build an artificial intelligence algorithm model through a large amount of data. 8In promoting the “206 Project”, it can supply artificial intelligence application with a powerful source of information and data resources support and guarantee by setting up a criminal cases’ big data repository, including the evidence standard repository, electronic file repository, case repository, judicative document repository, judicial interpretation repository of laws and regulations, case-handling business repository and other branch repositories, as well as information resource(case) sharing network platform of three public security authorities’ criminal cases handling.
- Learning the algorithm in depth is the core engine of “Intelligent auxiliary case handling system of Shanghai criminal cases”
As to machine learning, especially the in-depth learning, improvement and iteration of intensive learning have led to the combination of AI and various fields. In the process of advancing “206 Project”, it is of crucial importance to establish a unified application standard of evidence in criminal cases and make the software have the function of logical thinking and experience judgment through the in-depth learning algorithm of AI. By applying AI techniques of Optical Character Recognition (OCR), Natural Language Processing (NLP), Intelligent Speech Recognition, Judicial Entity Identification, Entity Relationship Analysis and Automatic Extraction of Judicial Elements, and by deeply exploiting, analyzing and refining, and machinery learning of the accumulated typical criminal cases, judicial information resources and cases-handling experience of public security authorities, we achieve the intelligent identification, information extraction and logic checks of various evidences with assured evidence standard, evidence rules and evidence models as the basic follow-up, so as to promptly find out and remind you the inconsistent evidences and procedures, the existed defects in evidences and contradictions between evidences in the system’s criminal cases, thus false and unjust cases and arbitrary objectives can be avoided.
- Powerful computing competence makes “Intelligent auxiliary case handling system of Shanghai criminal cases” polynary
With the rapid development of cloud computing technology and chip processing capability, thousands of machines can be used for parallel computing, especially the development of Graphics Processing Unit (GPU), Field-Programmable Gate Array (FPGA) and AI specific chips (such as Google’s TPU) has laid the foundation of computing competence for AI’s landing so as to make the application of AI that is similar to the algorithm model of human’s deep neural network a reality. In the process of advancing “206 Project”, the system can be equipped with various functions, such as evidence standard guideline, single evidence censorship, arresting condition censorship, social risk assessment, evidence chain and case-based evidence censorship and judgment, censorship and supervision of case-handling procedure’s legality, court trial testimony, case propulsion, sentencing reference, document generation, electronic file transfer, video and audio recording and knowledge index by applying the technologies such as cloud computing and AI, and investigators’ ability can be generally promoted.
(C) Preliminary success achieved by “Intelligent auxiliary case handling system of Shanghai criminal cases”
- Establishment of the big data repository. Till the end of June 2017, 16.95 million data has been collected in the big data repository of Shanghai criminal cases. Among them, there are 9,012 cases in the case repository, 16 million documents in the judicative repository, 948,384 articles in the judicial interpretation repository of laws and regulations, and 638 pieces of various kinds of normative documents (public security authorities) in the case handling business repository. Evidence standard repository and electronic file repository will be simultaneously updated with the development of evidence standards and cases. All of these provide abundant data resources for in-depth machine learning.
- Development of evidence standard and evidence rule guideline. In accordance with the requirements of the Political and Judiciary Commission under the Central Committee of the Communist Party of China and combining Shanghai judicial practice, we focus on these frequent, significant and new-type cases, especially the ones related to public safety and people’s urgent needs. We first select 18 specific crimes under 7 categories to start the establishment of evidence standard guideline, 9providing investigators with a uniform, convenient, data-orienting and list-format case handling guideline. At the same time, according to different requirements of case handling procedure in the Law of Criminal Procedure, we adhere to the principle of unity between integrity and periodicity and establish different evidence standard guidelines respectively in accordance with the different phases of filing cases, arresting, investigation termination, censorship prosecution and judgment, to provide the three public security authorities with case handling guidelines in different phases.
- Establishment of unified case handling network platform. We build a unified criminal cases’ handling platform among three public security authorities and form a new case handling procedure, so as to eliminate the long-term existed “information barrier” and preliminarily achieve online operation, inter-connection and information sharing of criminal case handling.
- The success of trial operation
On May 3, 2017, “Intelligent auxiliary case handling system of Shanghai criminal cases” was formally put into trial operation (6 courts, 6 procuratorates, 13 public security departments, a total of 25 pilot organizations were launched). Since May 1, 4 crimes such as the crimes of intentional homicide, larceny, illegal absorbing of public deposits and swindling (telecommunication fraud) filed in these pilot organizations are all included in the system’s trial operation. By the end of October, the system has recorded 65 cases and 20192 evidences, offered 3361 evidence guidelines and 406 knowledge index searches and has found out 48 evidence flaws in all, with total clicks of 63000 times.
(D) The value of developing and applying the “Intelligent auxiliary case handling system of Shanghai criminal cases”
- The development and application of software is the important content and pointcut of promoting the judgment-focused procedural system reform. By setting up a unified evidence standard and rule guideline as well as give a full play to software system’s functions of check, reminder, guard and supervision, so as to better implement the three public securities’ responsibility of case handling and better embody China’s criminal procedure principles “ Responsibility division, mutual coordination and mutual restraint”.
- The development and application of software is a significant breakthrough of modern technology in judicial in-depth application. The integration of modern technologies such as big data and AI into criminal procedure and the embedding of unified evidence standards into digital case handling procedures is a new scientific and technological innovation task, which means the breakthrough of 0 to 1, commencing the history of AI’s in-depth application in the administration of justice.
- The development and application of software gives full play to evidence standard, evidence rule guideline, evidence check and examination judgment, which ensures the validity of cases of arrest, transfer examination and prosecution, enhances investigators’ awareness of evidence, procedure, responsibility and human rights, and pushes investigators to comply with the evidence standards and rules under laws of collecting and fixing evidence from the very beginning, so as to improve the quality and efficiency of handling cases.
- The development and application of software overcomes the problems of difference, limitation and subjectivity of investigator’s personal estimation and promotes the scientificity, accuracy and comprehensiveness of evidence’s examination and judgment, so as to avoid “starting wrong, following wrong and doing wrong” and avoid the arbitrariness of justice, thus it maintains great significance of preventing false and unjust cases, protecting innocent people from being criminally prosecuted and keeping guilty people receiving just punishment.
麦肯锡全球研究院给出更加激进的预测，人工智能正在促进社会发生转变，这种转变比工业革命“发生的速度快10倍，规模大300倍，影响几乎大3000倍”。The McKinsey Global Institute shows more aggressive forecast: artificial intelligence is promoting social change which is “10 times faster, 300 times larger in scale, 3000 times larger in influence” than the industrial revolution.
As British jurist John Austin put it, “the so-called ‘rule of law’ requires that the conclusion must be the logic result of major premise and minor premise.” If the judge violates the logic of syllogism, it undermines the rule of law. Zhu Jingwen, The Challenge to Western Legal Tradition, China Procuratorate Press, February 1996, P292.
The vending machine critique of law means that the entire legal operation is like a “machine tool”. As long as the materials are provided, certain products will be produced. For example, German jurist Savigny has said that “the Roman jurists’ methodology has a certain certainty that is exclusive to mathematics. It is no exaggeration to say that they are using their concepts to calculate.”
Judging from the early judicial application of artificial intelligence, artificial intelligence expert exactly choose syllogism to simulate the deductive reasoning. American Walter and Bernhard in the early 1970s developed a legal reasoning system where 4 computers based on “if A and B, then C” to describe syllogism, which for the first time made legal reasoning machine from theory to reality.
Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of the Law, translator: Deng Zhenglai and Ji Jingwu, Huaxia Publishing House, December 1987, P478.
When developing large Knowledge-base System (KBS), the integrated function of thinking structure was paid attention to. Many small-scale subsystems with inner link, on the basis of simulating legal reasoning function (legal query, legal interpretation, applicable law, legal evaluation, reason statement), are connected organically by association procedure, forming a whole system with function of legal reasoning.
Zhang Baosheng, Jurisprudence of Artificial Intelligence Legal System, Law Review (bimonthly), No.5, 2001, P16.
 Just as Dr. Wang Jian, chairman of the Alibaba Group Technical Committee, said that the progress of AI comes from the continuous improvement of Internet infrastructure, while it makes no sense if AI is isolated from the Internet.
 So far, the evidence standard establishment of crimes of intentional homicide, intentional injury (causing death by intentional injury), robbery (murder during robbery), larceny, swindling (telecommunication fraud), illegal absorbing public deposits and fraud in financing has been completed, a total of 48 parts and 1039 evidence examination standards.