The Death of the Legal Subject: How Predictive Algorithms Are (Re)constructing Legal Subjectivity

Abstract

This paper explores the epistemological differences between the socio-political legal subject of Western liberalism, and the algorithmic subject of informational capitalism. It argues that the increasing use of predictive algorithms in judicial decision-making is reconstructing both the nature and experience of legal subjectivity in a manner that is incompatible with law's normative commitments to individualized justice. Whereas algorithmic subjectivity derives its epistemic authority from population-level insights, legal subjectivity has historically derived credibility from its close approximation of the underlying individual, through careful evaluation of their mental and physical autonomy, prior to any assignment of legal liability. With the introduction of predictive algorithms in judicial decision-making, knowledge about the legal subject is increasingly algorithmically produced, in a manner that discounts, and effectively displaces, qualitative knowledge about the legal subject's intentions, motivations, and moral capabilities. This results in the death of the legal subject, or the emergence of new, algorithmic practices of signification that no longer require the input of the underlying individual. As algorithms increasingly guide judicial decision-making, the shifting epistemology of legal subjectivity has long-term consequences for the legitimacy of legal institutions.