Empathy in the Digital Administrative State

Mar, 11/16/2021 - 13:00 / 14:30

Aula 18, Via Parenzo

Speaker: Sofia Ranchordás , Luiss

Abstract

It is human to make mistakes. It is indisputably human to make mistakes while filling in tax returns, benefit applications, and other government forms which are often tainted with complex language, requirements, and short deadlines. However, the unique human feature of forgiving these mistakes is disappearing with the digitization of government services and the automation of government decision-making. While the role of empathy has long been controversial in law, empathic measures have helped public authorities balance administrative values with citizens’ needs and deliver fair and legitimate decisions. The empathy of public servants has been particularly important for vulnerable citizens (e.g., disabled individuals, seniors, underrepresented minorities, low income). When empathy is threatened in the digital administrative state, vulnerable citizens are at risk of not being able to exercise their rights because they cannot engage with digital bureaucracy.

This Article argues that empathy, the ability to relate to others and understand a legal situation from multiple perspectives, is a key value of administrative law which should be safeguarded in the digital administrative state. Empathy can contribute to the advancement of procedural due process, equal treatment, and the legitimacy of automation. The concept of administrative empathy does not aim to create arrays of exceptions, imbue law with emotions and individualized justice. Instead, this concept suggests avenues for humanizing digital government and automated decision-making through the complete understanding of citizens’ needs. This Article explores the role of empathy in the digital administrative state at two levels: First, it argues that empathy can be a partial response to some of the shortcomings of digital bureaucracy. At this level, administrative empathy acknowledges that citizens have different skills and needs, and this requires the redesign of pre-filled application forms, government platforms, algorithms, as well as assistance. Second, empathy should also operate ex post as a humanizing measure which can help ensure that administrative decision-making remains human.

Drawing on comparative examples of empathic measures employed in the United States, the Netherlands, Estonia, and France, the academic contribution of this Article is twofold: first, it offers an interdisciplinary reflection on the role of empathy in administrative law and public administration for the digital age that seeks to advance the position of vulnerable citizens; second, it operationalizes the concept of administrative empathy.