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11 - What’s in the Box?
- from Part II - Regulation and Policy
- Edited by Hans-W. Micklitz, European University Institute, Florence, Oreste Pollicino, Amnon Reichman, University of California, Berkeley, Andrea Simoncini, Giovanni Sartor, European University Institute, Florence, Giovanni De Gregorio, University of Oxford
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- Book:
- Constitutional Challenges in the Algorithmic Society
- Published online:
- 01 November 2021
- Print publication:
- 02 December 2021, pp 219-235
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Summary
Every day, millions of administrative decisions take place in the public sector: building permits, land use, tax deductions, social welfare support, and access to healthcare, etc. When such decisions affect the rights and duties of individual citizens and/or businesses, they must meet the requirements set out in administrative law. Of those is the requirement that the body responsible for the decision must provide an explanation of the decision to the recipient. As many administrative decisions are being considered for automation through algorithmic decision-making (ADM) systems, it raises questions about what kind of explanations they need to provide. Fearing the opaqueness of the dreaded black box of these ADM systems, countless ethical guidelines have been produced, often of a very general character. Rather than adding yet another ethical consideration to what in our view is an already overcrowded ethics-based literature, we focus on a concrete legal approach, and ask: what does the legal requirement to explain a decision in public administration actually entail in regards to both human and computer-aided decision-making? We argue that, instead of pursuing a new approach to explanation, retaining the existing standard (the human standard) for explanation already enshrined in administrative law will be more meaningful and safe. To add to this we introduce what we call an ‘administrative Turing test’ which could be used to continually validate and strengthen computationally assisted decision-making, providing a benchmark on which future applications of ADM can be measured.
Burqas and Niqābs as Protected Expression: “This is My Face”
- Edited by Anja Matwijkiw, Anna Oriolo
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- Book:
- Law, Cultural Studies and the 'Burqa Ban' Trend
- Published by:
- Intersentia
- Published online:
- 10 December 2021
- Print publication:
- 01 July 2021, pp 167-186
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Abstract
In several European countries, Islamic attire is banned in public spaces, in what can best be described as structural Islamophobic discrimination. In 2014, Europe's highest human rights court upheld the French ban and, three years later, the Belgian bans. In doing so, however, the European Court of Human Rights cemented a dangerous standard into human rights case law:’ living together.’ Judicial rights discourse regarding these bans has centered on freedom of religion, protected under Article 9 of the European Convention on Human Rights as the applicable article. While the analysis under Article 9 was of course necessary, this chapter argues that the Court should have also assessed the question of’ living together’ against free expression under Article 10. To demonstrate this, it begins by considering the history of failure to recognize violations of Article 9 freedom of religion protections under European human rights law and discusses the protections available under Article 10. It then considers how the ban on face coverings and the Court's jurisprudence take a dangerous turn when applied to a different context, Denmark, where bans are part of a wider discriminatory political and legal landscape.
Introduction
In 1992, the U.S. law professor and critical race theorist Derrick Bell published a short science-fiction story called’ Space Traders.’ In the story, aliens arrive in the U.S. offering gold, anti-pollutants, and clean, safe nuclear energy (i.e. to solve all America's problems). In exchange, they request that all American black people – 20 million citizens – be transferred to their spaceships for interstellar deportation. Provocative and paradigm setting, the story illustrated the problems of unequal citizenship in the U.S. By imagining political discussions where black Americans are asked to sacrifice themselves for the good of the country, the story fictionalized a common political argument that race relations might be’ solved’ by removing/limiting the numbers of the’ problem’ race.
If Bell's allegory were applied toward Muslims in Europe today, what do we imagine the answer would be? Certain forms of Islamophobia are mainstream in Europe today.