Cyber Algorithmic Governance: AI as a new normative agent in contemporary law

Abstract

Just a decade ago, artificial intelligence (AI) was still a vague promise in the legal field; today it is an unavoidable actor. Their algorithms are involved—sometimes without us realizing it—in the way laws are written, precedents are interpreted, and administrative decisions are executed. Far from being a simple technical support, AI has become a new normative power link that alters the classic triangle formed by Law, State and citizenship (Hildebrandt, 2015). This phenomenon, which some authors call algorithmic governance, means that AI systems go from being "regulated objects" to "normative agents" capable of setting, de facto, standards of conduct with very real legal consequences (Yeung, 2017). The question is no longer whether or not to use algorithms, but how to ensure that their use respects the transparency, equality, and accountability demanded by contemporary democracies (Crawford, 2021). To understand the scope of this transformation, we took a mixed methodological approach. First, we conducted a systematic review of the literature covering the last decade of academic research. We then conduct a comparative analysis of regulatory frameworks – with a particular focus on the European Union's AI Regulation – and finally, we examine case studies that reveal both the benefits (efficiency, consistency) and risks (opacity, bias) of delegating legal functions to automated systems. With this three-pronged approach, we identify opportunities for innovation, but we also warn of the dangers of eroding basic principles such as legal certainty and equality before the law.