Publication details
Darwin among the Judges: Efficiency and Digital Managerialism in the Judiciary
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| Year of publication | 2026 |
| Type | Appeared in Conference without Proceedings |
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| Description | This paper explores how the digitalisation of the judiciary may reshape judicial decision-making by placing judges within a new regime of visibility. At a general level, this line of thought recalls Samuel Butler’s early concern that human institutions may gradually begin to adapt themselves to technological systems, rather than merely using them as neutral tools. In today’s judiciary, this concern does not take the form of literal machine domination, but rather of a subtler adjustment of judicial conduct to digital infrastructures that record, measure, compare, and publicise performance. The theme of this year’s conference is “Theory!”, and for that reason I want to reflect on a theory that may in many respects appear somewhat exhausted, yet regains its relevance precisely in connection with these transformations. I argue that this development can be productively understood through Foucault’s appropriation of the concept of the panopticon. Digital case-management systems, online databases, remote hearings, publication platforms, and performance indicators create conditions of permanent potential observability. Even where there is no direct intervention, judges may internalise the awareness that they are visible to court management, appellate courts, the media, political actors, and the public. This may encourage anticipatory self-discipline, self-censorship, or conformity, both in legal reasoning and in style of decision-making. At the same time, I do not believe that the Benthamite panopticon is the only theory that can help us understand the fundamental transformation of the judiciary in the datafied age. I therefore want to connect this perspective with Shoshana Zuboff’s analysis of data extraction and behavioural steering, Richard Susskind’s account of the digital transformation of courts, and Wendy Brown’s critique of neoliberal governance and institutionally metric-driven rationality. Read together, these authors point to something more than a story of efficiency, accessibility, or modernisation. The institutional context of judicial decision-making is also changing, as visibility becomes tied to datafication, benchmarking, and performance management. I intend to support this argument with our own empirical analysis conducted within the Judicial Data project, in which we examine various forms of control to which judges are exposed. The paper is therefore also intended as a contribution to a broader discussion, in which I would welcome the views of the expert community on how these power relations in judicial governance can be identified, described, and studied. The paper, together with our preliminary reflections, suggests that the principal risk of digital justice lies not only in automation replacing adjudication, but also in the emergence of a digital panopticon in which judges remain formally independent while their decision-making is increasingly shaped by continuous observability and metric-mediated governance. At the same time, there is also a significant shift in the vocabulary used by both judges and academics. And it is precisely here that the importance of theory becomes visible again: theory is also a struggle over meanings. This opens the broader normative question of how judicial independence can be preserved under conditions of pervasive digital surveillance. |
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