Prof. Weidong Ji Gave a Lecture on New Programming Theory at Harvard University Salon No. 173

To commemorate the 30th anniversary of the publication of The Meaning of the Legal Process, Harvard Salon invited Ji Weidong, Senior Professor of Liberal Arts at Shanghai Jiaotong University and Director of the China Institute of Law and Society, to give a keynote speech on "Legal Process Justice in the Digital Era" at 9:00 a.m., December 18, 2022 (20:00 EST, December 17, 2022), which focused on algorithmic dictatorship and procedural justice in risk-control administration. --The keynote address was titled "Legal Procedural Justice in the Digital Age: Algorithmic Dictatorship and Procedural Fairness in the Risk Prevention and Control Administration". This purely public service salon was moderated by Shen Yuanyuan, Fellow of Harvard University's Fitzgerald Fitzgerald Center and Distinguished Professor of Zhejiang University's Guanghua School of Law, with Shen Hao, Director of Peking University's Center for the Study of Human Rights and Humanitarian Affairs and Professor of the School of Law, and Zhang Zheng, Director of the Shanghai Institute of Artificial Intelligence of Amazon Cloud Technology and Adjunct Professor of New York University, serving as the panelists. The salon was live-streamed by several media and social media platforms in China and abroad. According to incomplete statistics, nearly 200 listeners were granted access to the online conference room, more than 1,800 domestic live-streaming listeners, and more than 3,000 overseas live-streaming listeners.

In his speech, Professor Ji Weidong firstly briefly elaborated the criticality of procedural justice in the construction of modern rule of law order, and at the same time pointed out the challenges and problems posed by the globalized risk society and automated digital state, stressing the need to re-conceptualize the significance of the justice of the legal process in the context of the new era, and to seriously explore the mechanism of the justice of the technological process. In his view, the risk society has led to the further accentuation of the value orientation of prioritizing security and public good, which tends to suppress individual freedom and weaken the protection of rights; the cost-benefit analysis of risk prevention and control will also promote more or less adjustment, calculation and compromise, inadvertently changing the normative way of thinking; the risk spiral will also contribute to the way of managing emergencies and crises, significantly increasing the power of discretion and the direction of decision-making. Together, these factors can easily lead to an excessive relaxation of procedural constraints on administrative power, or even to a state of affairs that tramples on the legal process. In view of the seriousness of the problem in reality, the legal profession should adhere to the bottom line of procedural justice and explore the possibility of diversified procedural design.

Going back to the academic genealogy, we can find that Foucault had advocated the concepts of "life politics" and "medical police" in his 1974 lecture on social medicine, and more recently, Mike Mamou, professor of public health at University College London, has also raised the issues of global "health inequality" and "health totalitarianism". More recently, Michael Mamou, Professor of Public Health at University College London, has also raised the issues of global "health inequality" and "health totalitarianism". Prof. Ji Weidong further combines the phenomena of the epidemic prevention and control of Mystic Krohn with the abuse of CDC power and administrative discretion by local governments and administrators, revealing the reversal of the ordinary (daily state) and the exceptional (state of emergency), and the imbalance between security and freedom under the special scenario and power relationship of epidemic prevention, and analyzing the black box of algorithms and the uniqueness of algorithms that are caused by the escape of digital information technology from the constraints of ethics, governance, and jurisprudence. In particular, it analyzes the black box of algorithms, dictatorship of algorithms, discrimination of algorithms, digital tracking, digital sentinels, digital shackles, etc. caused by digital information technology that is free from the constraints of ethics, governance and jurisprudence, and reaffirms the proposition of restricting the public power, especially the grass-roots administrative discretion, by means of a fair procedure.

Indeed, unlike the judicial process in which the judge makes a centerpiece decision, the process of administrative activities has some peculiarities. For example, the administrative subject and the administrative relative are in an unequal position, and there is even a disparity of power; the decision-maker needs to carry out a variety of policy considerations, and emphasizes the flexibility and efficiency of improvisation. Nonetheless, administrative procedures need to establish the principle of appropriate balance and the principle of maintaining credibility, and formulate specific discretionary standards to prevent the administrative power out of control. In this regard, Prof. Ji Weidong particularly emphasized that the Administrative Procedure Law, which has been under consideration for many years and has been delayed for a long time, should be passed as soon as possible, focusing on improving the procedure as infrastructure and the procedure as interaction. In the digital era, legal procedural justice should be combined with technical procedural justice, and the principles and rules to ensure the legitimacy of the process and the legitimacy of the means should be skillfully embedded in the algorithmic design and in the process of big data, so as to counteract the impact of the risky society and the digital state on procedural justice.

After the keynote speech, Prof. Shen Kui from the Research Center for Constitutional and Administrative Law of Peking University commented from the perspective of administrative law. He firstly pointed out the three types of risk (natural risk, technical risk, and institutional risk), and then asked in depth whether all countries neglect procedural justice and why the phenomenon of increasing the number of layers of codes occurs in the context of risk prevention and control. At the same time, he also argues that it is difficult to limit the expansion of administrative discretion by constantly refining the criteria for discretion in risk prevention decision-making; moreover, the challenge of procedural justice posed by algorithmic dictatorships is difficult to be addressed and resolved by means of regulatory codes. He also analyzed the reasons for the difficulty in producing an administrative procedure law from a professional point of view.

Immediately after, Prof. Zhang Zheng, chief expert of Amazon Shanghai AI Institute, commented from the perspective of data ethics and AI governance, and he raised three issues of great relevance: (1) Data quality determines the ceiling of an algorithm. Improper handling of data noise may cause errors, such as trip code algorithms giving different assignments to the entire peer group. And big data algorithms neither pass a complete functional test before deployment nor are updated quickly and iteratively using user complaints after operation, because there is no way to bypass the expensive cost of manual review. For this reason, algorithms for big data processing should not be blindly trusted, and it is important to ensure that traditional media are not absent to prevent information distortion. (2) A good algorithm can provide diversified options through sandboxing based on cost-benefit analysis, and it is necessary to prevent administrative intervention from excluding choices and exacerbating path dependency. (3) Digital management may go astray if it goes too fast.

Prof. Ji Weidong responded to the comments of the two experts one by one, further elaborated his relevant academic insights, and then also answered various questions from the online audience summarized and relayed by the moderator, Prof. Shen Yuan Yuan. In total, the presentation, comments, and Q&A discussion lasted three hours. At the end, Prof. Shen Yuan Yuan also introduced the purpose of Harvard Salon, its operation mechanism and the nature of purely public welfare activities, and on behalf of all the guests of this event, expressed his gratitude to Mr. Kaiyuan Wang, the senior coordinator of the Salon, and several volunteers.