Care to explain?:A critical epistemic in/justice based analysis of legal explanation obligations and ideals for ‘AI’-infused times

Abstract

Fundamental legal explanation rights are seen to be in peril because of the use of inscru-table computational methods in decision making across important domains such as health care, welfare, and the judiciary. New technology-oriented explanation rules are created in response to this. As part of such rules, human explainers are tasked with re-humanizing the automated decisional processes. By providing their explainees with meaningful information, explainers are expected to help protect these decision subjects from AI-related harms such as wrongful discrimination, and to sustain their ability to participate in decision making about them in responsible ways.De Groot questions the merits, and the ideas behind these legislative approaches. Harms that are typically ascribed to the use of algorithms and modern ‘AI’ are not so different in character from harms that existed long before the ‘digital revolution.’ If explanation rights have a role to play as a tool against what De Groot describes as knowledge related wrong-doing, law has something to answer for since its explanation rules have thus far underserved those in less privileged societal positions; before and after decisions were automated.To conduct this critical questioning this thesis approaches explanation as a form of knowledge making. It builds a ‘re-idealized’ model of explanation duties based on val-ues described in the philosophical fields of epistemic justice and injustice. Starting from critical insights with regard to responsibly informed interaction in situations of social-informational inequality, the model relates duties of explanation care to different phases of an explanation cycle. The model is then applied in an analysis of the main explanation rules for administrative and medical decision making in The Netherlands. In ‘technology and regulation’ discus-sions, both domains are appealed to as benchmarks for the dignified treatment of ex-plainees. The analysis however teases out how the paradigms ignore important dimen-sions of decision making, and how explainers are not instructed to engage with explain-ees in ways that allow to fundamentally respect them as knowers and rights holders. By generating conceptual criticism and making practical, detailed points, the thesis demon-strates work that can be done to improve explanation regulation moving forward.<br/

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