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Short abstract:

Based on a case study of the profiling algorithm labour market policies, the article addresses the politics of algorithmic articulation of law. More specifically, we analyze how the law is articulated by the computer means, what discrepancies between the law and ADM are produced, by whom, and how.

Long abstract:

Understanding how the law is articulated by the computer means is important in the context of increasing use of algorithmic decision-making systems (ADM) in public policies and high profile scandals (e.g. Angwin et al. 2016, van Bekkum & Borgesius 2021; Rachovitsa & Johann 2022). Based on a case study of the profiling algorithm deployed in Poland to differentiate unemployed persons’ obligations and access to active labor market programs, the article contributes to the debates on computer representation and translation of law (Bovens, Zouridis 2002; Zouridis et al 2020; Hilderbrandt  2013, 2018). It addresses the questions of how the law is articulated by the computer means, what discrepancies between the law and ADM are produced, by whom, and how. Using unique data concerning the algorithm and its development, we demonstrate important discrepancies between the legal and algorithmic framework that are indicative of backstage discretionary decision-making and go far beyond what is assumed by the literature as a necessary by-product of representation or translation of law. Second, we reconstruct how these discrepancies came into being to conclude that surprisingly the discretion was mainly exercised by old policy-makers, namely the representatives of executive power and public administration, rather than by statisticians, data analysts, programmers or other so-called ‘system-level bureaucrats’ (Bovens & Zouridis, 2002) or ‘back-office policy-makers’ (Ustek-Spilda 2020) as the literature would suggest.