Robot Law, a Necessity or Legal Science Fiction?

Robot Law, a Necessity or Legal Science Fiction?

Machine Medical Ethics and What About the Law?

I pity inanimate objects…

The frustrations of being inanimate
Maybe it’s better that way
the fewer the moving parts
the less there is to go wrong

Godley&Crème (Freeze Frame)

Rob van den Hoven van Genderen[1]

Law is formed and made by human beings in an enduring evolution from the Roman Empire until the internet society. Law is applicable to all human beings (natural persons) and all constructions that are made by them. Organizational structures and companies can have legal personality as well though the legal actions are always performed by natural persons, be it in name of the legal structure. Legal persons, natural and non-natural, are subjected to the total national and international law systems, private law and public law – as criminal law and the law on human rights.

In the long history of law the natural persons always bear the rights and responsibility of their actions. They could and would be held responsible for all legal acts and acts with legal consequences that have been committed under their responsibility. This applies to the doing of those acting under their responsibility as well, such as animals and under aged children[2]. But also inanimate objects under their hold, machines and persons under their supervision (personnel) are within the legal sphere of responsibility of natural persons.

Could the evolution of law systems extend to machines that are performing tasks in a more and more independent way? Could a machine that functions on its own developed instructions, a real artificial intelligence, be considered a new form of legal person with all legal consequences and responsibilities of such? Or will there always be a natural legal person involved who will be held responsible for the acts of this artificial intelligence being?  And who will that be: the “user” or the developer and/or producer of this “machine being”?

 

Those questions will be discussed and maybe answered in this chapter where I will describe the evolution of legal control and responsibility of the user of simple instruments to the user of automated systems and beyond.

1 Introduction

Do we have to pity inanimate objects or do we want to give those rights? They certainly will not pity us. They do not have a soul, whatever that may be. According to the Catechism of the Catholic Church[3], and they can be seen as the experts on this, “soul” is defined as follows: The spiritual principle of human beings. The soul is the subject of human consciousness and freedom. This freedom of decision-making is the ethical and legal background of the responsibility we have as natural beings: to be held responsible for the decisions and acts as human beings, in a legal sense referred to as natural persons. Those natural persons are sovereign in their decision-making and therefore are legally responsible for their acts. Jean Bodin claimed that sovereignty must reside in a single individual.[4] This sovereignty, though, can be transferred to other “Legal Beings”, The State, a company or other organizational entity. These legal entities are to be considered ‘legal persons”, with the power to make decisions with legal effects. They also can be the subject of rights that are conferred on them, “legal subjects”.

The big question is, of course, if autonomous technical or electronic instruments, hardware and software can be conceived as the bearer of rights and would be vested with the power to act as a legal person and can perform legal deeds. Their deeds could also result in liability. Or will there always be a natural person that will be the ultimate bearer of the rights and legal responsibility?

2 What about the legal person

Is there a difference between the natural person Rob van den Hoven van Genderen and the legal person Rob van den Hoven van Genderen? There is and there is not. Of course, there is the physical person that can move, feel pain, love and run around. A legal person cannot do that. But the legal person, being a natural person, can be the subject of rights and can act with legal consequences. There is no question if one of these persons is fictitious or natural. One is of flesh and blood but inherently this person is capable of performing legal acts with legal consequences. According to Dutch law, in the first book of the civil law, article 1, everyone who will be in the Netherlands, will be the bearer of civil rights system, including the personal rights that only can be borne by natural persons. Natural persons can get married, to another natural person or enter a co-habitation contract. They can have children, who by natural birth can descend from other natural persons. But they can also be adopted or partly naturally descend from insemination. They can vote for the another natural person in elections and can be voted on during these elections. They can be Member of a political party or a church. Further, they will be the subject of human rights, have the right to life, privacy, freedom of speech, education or religion. Natural persons can be put in prison when they have done something against the law.

Of course, I can elaborate on the evolution of the legal potential of the natural persons in historical perspective. In this respect I could refer to the fact that a slave in the Roman Empire was not a natural person. The slave was a valuable asset, but not a natural person, who could perform tasks, even legal acts for his or her master. They could even possess a money belt to make payments for their masters if they were trusted enough to do this. I could go on, deliberating the long tradition of having slaves, not being accepted as natural or legal persons until the end of the 19th century. Also, I could refer to the fact that colored people were only semi-natural persons in the United States and South Africa. I could even point at the fact that married women were considered natural persons but only in the sense that could easily compare with the Roman slaves, not being legally competent to act with full legal responsibility, based on the Code Napoleon of 1904. This situation lasted until 1956. Only then, the feminine part of the Dutch population was considered to have full legal competence to act with all possible legal effect.

Even now, there are several, too many, parts on the globe where girls and women do not have (full) legal capacity, not being allowed to buy, drive or even go to school.

I could, but I will not.

I will try to shed some light, though, on the difference between natural persons and legal persons and their difference in legal capacity to obtain an entrance to the legal responsibility of the different actors in society.

In the early 20th century several concepts of the essence of a natural person as a human being performing legal acts were addressed to the realistic approach of having a real personality.  This should not be based on exclusive legal theories. Referring to Geldart, an upholder of the doctrine of “real personality”,

“The question is at bottom not one on which law and legal conceptions

Have the only or the final voice: it is one which law shares with other

Sciences, political science, ethics, psychology and metaphysics”. [5]

And what is a real or natural person; do we use distinctions on basis of free will and intelligence? If a natural person is not capable of independently performing legal acts with legal effect we place them under curatorship. If they are not legally become of age (in the Netherlands 18 years), natural persons are not to be trusted to perform all acts with legal effects. This is not an absolute line, though. They can buy a sandwich, or even a bike, but limits will be set when buying a car or a house. Their parents have to support this and will have to represent them.

3 What about the unnatural, legal person

The legal person can also be a corporation or other entity. A natural person cannot be a corporation but will represent this corporation to act with legal effect. In our society we use the entity of legal person for a long time.

A legal person state is concerning property equal to an individual right, unless the law provides otherwise. “We say, however, that a legal person, as an individual, has legal personality

As John Dewey already stated in 1926 in the Yale Journal of Law: The Corporation is a right-and-duty-bearing unit. Not all the legal propositions that are true of a man will be true of a corporation[6]

Still they have a legal personality to act in a legal sense. What they do, can have legal effect.  Although it is a legal fictitious invention to provide organizations and other entities with a legal life to act as if they are natural person, they can only act in a legal way that will be in the interest and purpose of this legal entity. In this way it is not fictitious, at least not within a society that is based on a legal reality. There is a whole spectrum of legal persons in civil law countries and continental law countries. The legal systems vary but the essence of legal persons is not that different, so I will use the examples at random. The purpose is to grow nearer to the understanding of the position of acting artificial intelligent entities.

The first big distinction in legal persons is the separation between public legal persons and private legal persons. Public legal persons have a public responsibility: governmental and other state initiated entities like provinces and municipalities; but also, other state organized public entities, as energy organizations or independent regulators, have legal personality. They all have a defined purpose to represent the government or certain public interests. On top of that they have to be initiated by act of law.

A kind of in between position is provided to Churches and certain social entities. They also have a defined purposed that requires legal personality.

Private legal persons are companies that are based on a commercial or idealistic basis. They have a defined purpose too. This can vary from making a profit, to representing people to perceive a goal on idealistic ground, human right or animal rights. The actual legal specification varies too. Examples are companies and corporations under limited liability (Ltd) to Euro B.V. or foundations and funds that are not allowed to make profits. They must be initiated by a notorial deed.

Private legal persons may be small: a shop, a one man (or no man) consultancy or “letter box firm” to dash tax in the Caribbean. They can be big too, like multinationals as Heineken, Microsoft or Apple.

In essence they all have the same legal powers and responsibilities. They can be all law subject like a natural person. The main difference is that non-natural legal persons can also be object of law; they can be sold, ended or dismembered in a legal sense.

The natural person cannot be ended in a legal way, although some of their rights can be withdrawn, for instance they can lose their nationality if they join a foreign army. And, of course, they can lose their legal competence if they lose their sanity and are not capable to act in legal sense.

Legal objects

Legal objects are goods, services or articles which can be the underlying object of rights and obligations. Objects can never be carriers of rights and obligations themselves as a legal person. This concerns in particular goods, products and services, but also more abstract notions as the organization or corporation. This special construction is also described as a whole of active and passive property law elements.

Liability of a legal person as a director of another entity rests also on those persons who were director of the legal person at time of the creation of the liability.

4 And What About the Legal Acting of Persons,

    the legal  Acts?

Why is it so important to have a legal personality? As I have tried to make clear: Legal persons can perform legal acts. Those acts have legal effects. They change the legal circumstance. By buying products or services the legal person creates new legal circumstances. Money is paid to transfer the property from one hand to the other. The house owner changes, the owner of a company changes. Also, the buying of a sandwich is an agreement with legal effect. One party pays money and the other party will become the owner and consumer of the sandwich. These acts all had an intention to change the legal circumstances. Those legal acts can also be without an intended purpose, or even illegal on purpose, or without an intended purpose. If legal persons act in a criminal way they can be convicted on basis of their crimes. If they will create damage, they will be held liable for the costs.

But who is the person that will be held liable or put into prison in our world?

As with under aged children or animals, the parents can be held liable for their acts. They have the responsibility. Companies and governments can be held legally responsible for their acts. The interesting part of all this is that all these acts have to be performed by natural persons. Companies and governments are represented by natural persons, directors or government officials who have to be the visible and trusted contacts to perform the acts, sign the agreement or held to be liable for damages. If it comes to a legal procedure, a court case then the representatives of the board will be subpoenaed or summoned to explain the (policy) decisions that have been made. The Minister or other governmental representative has to explain these decisions and legal acts to parliament. or other democratic control. or even before the court if it concerns liability or criminal cases.

So the representative of performing the legal acts will always consist of a group or single identifiable natural person: the board, the civil servant, the politically responsible representative and recognizable natural person.

5 How about artificial mechanisms and instruments?

Until the advanced information society really took off, there was no question who would be legally responsible for the acts with legal effect. It was clear who acted in a physical or legal sense or committed crimes. That a natural person used machines or instruments was not relevant. A surgeon who used a knife to make an incision to operate and made a mistake could not blame the knife or the producer of the knife. In times of war the canon or the tank or even the producer could not be held responsible for the acts of war. The last in command, though, could be held responsible for his acts and possible war crimes. But what happens if those machines are not instructed or steered by natural persons anymore? Or if they are collecting information that will determine their functioning without human intervention? If a drone is designed to recognize imminent danger and act by destroying this threat without someone using a joy stick (what’s in a word) anymore?

What if the surgeon is not doing the operation himself but leaves the performing of the operation to an advanced data fed laser instrument that has collected all medical data itself including the patient documentation? Also, in a less dramatic environment this question is relevant: Automated systems can give instructions to crawl over the web trying to collect relevant information, going beyond the initial command of the initial instruction. Computers, search engines, can act on the internet without recognizable human instructions and can be received by comparable systems.

Those systems can accept the instruction released by the ‘crawler”. This can be a simple request to collect certain information but could also be an instruction to make a reservation for a restaurant or performance of “Death in Venice“ or a dance party. This could even be based on the interest profile of the natural person who gave a general instruction to arrange his weekend agenda.

These actions of an automated system can have legal effects. The search system, as an advanced bot meets other bots and interchanges a set of constructions that can result in an agreement to reserve a certain place or even buy a product or service. There will be a possible electronically agreement that will be accepted by both electronic “parties” without any intervention or even confirmation by a natural person.

These kinds of actions fall within the legal context of the E-commerce Directive of 2000[7] but the Directive is not prepared for this kind of autonomous systems. The E-commerce Directive, which is accepted and integrated in all European Member States is directed on creating legal certainty in the electronic system within the internal market. The concentration is on the trustworthy and identifiability of the party that is selling content, services or product to the consumer.

As stated in consideration 7 of the Directive: In order to ensure legal certainty and consumer confidence, this Directive must lay down a clear and general framework to cover certain legal aspects of electronic commerce in the internal market.

In this context it is of main importance to identify the company and responsible persons that are “selling” the products and service. This also includes the physical location of the company, to find them if something goes wrong. The Directive is covering the relation between consumers and business parties but is not taking into account the developments where there is no easily identifiable party, being an automated system, at least for a part of its legal process and the agreeing on the content of the agreement.  It refers to the obligations, “the information duties” of a specific identifiable located party[8].

From a perspective of protecting (consumer) parties who purchase services and product by electronics this makes sense in the historical perspective of the year 2000 but “times they are a- changin[9]”.

Crawlers, all kind of search or selection programs and smart devices are capable to arrange pr-contractual agreements, at least provide all kind of information that can result in legal acts or create legal effects.

These effects can also result in liability. But who will be liable? The smart device, the operating laser device, the autonomous system that functions on basis of processed data that the device collected?

6 Could We Accept a Certain Legal Responsibility of

    Automated Artificial Intelligent Systems?

Returning to the operating device that operates on basis of processed data from selected data from “big data” and specified data resources where no natural person is involved, except for the patient, what is its legal status?

Is there a distinction between an autonomous acting electronic system as independent actor and the use of this system as an instrument? They perform activities that will have legal effects as a result. Legal acts will always be performed by legal subjects, being legal persons. Automated systems, electronic or otherwise, are neither, autonomous or not. The fact that they can act autonomous and create changes in legal positions will ultimately reflect on the user of the system[10] They cannot perform as a legal person with the same legal position and consequences of their acting.

But what, in essence, is the difference between the representative in a human form, the natural person and the electronic representative, being a crawling program or software agent in the examples I gave, reserving for a play or buying a book on Amazon? I think we must make a distinction between the different phases of the legal process of buying and the performance of the (semi) autonomous system.

The whole of the process is in the first place always initiated by an individual or group of natural persons. They have instructed the device, being a search engine or an advance weapon system.

So in the command phase, the natural person is the responsible actor. The difference in functional execution is not relevant. The use of drones for delivering packages to a client or rockets to a perceived enemy is not making a difference concerning the legal position.

No one has ever thought about making the pen, that put the ink on the contract, responsible for signing and executing the contract.[11]  This also accounts for all producers of products that are used to commit a crime or products that create damage. Of course, a producer of products or services that are defective or unsound or concerning services, not according to agreed expectations, liability for damages is appropriate according to the level of involvement of the failure.

A natural person with a free will. though, even in representing someone else could be held responsible for his acts, even representing someone else. The final legal effect can be held against him in the case of liability. Also. the person who has given the mandate or instruction can be held liable for the damage his representative has inflicted.  In the case of positive or negative legal action though, the ultimate legal effect will be returned to the initial instructing party and only, concerning negative effect, will be diminished if there is a reason for disculpation, for instance, if his representative went berserk. In the last case there could be analogy with automated systems. A non-intentional disturbance of the system could diminish the liability of the initiating natural person as well, using this system.

Agreeing with Voulon[12], I think that any legal effect that has been created by an autonomous as well as less autonomous system has to be attributed to the legal or natural person that has made the choice to deploy the system in his service. One could doubt about the level of liability of the legal or natural person relating to the degree of control one has over the autonomous system. This, though, would only be the case concerning liability and accountability to the legal or natural person. The failure or mistake of the autonomous system can be of consequence concerning the accountability of the legal actor.  The liability, though, will never be attributed to the system as such because the system can never have a legal responsibility as such.

7 I, robot, concluding

Although an emotional autonomous system or robot, even having an independent intelligence and emotion, is certainly foreseeable, this would not create, in my view, a legal personality with the rights and obligations vested on natural and legal persons. There even wouldn’t be a in between or sui generis norm for autonomous robot be necessary. One could imagine that there will be certain adaptions in the existing law to create a practical system in representation of autonomous systems on behalf of the initial legal actor, natural or legal person.

Even when on basis of the Turing test the autonomous being can be defined as an intelligent functioning entity, this would not create legal responsibilities. The functioning of the robot can have legal effects, certainly in representing the legal will or even derived legal will of the initial legal actor.

Those changes in law will be instrumental, though, like the “rather long” discussion of the equality between written documents and electronic documents and the acceptance of the electronic signature.

Most important in legal traffic and legal communications, including legal transactions, is that there will be a trusted identification of the autonomous functioning entity or system in such a way that it will fit within the increasing autonomous functioning system within our global society.

It is essential that we, as natural human beings, will keep control over the system. We would not want to be confronted with autonomous systems, collecting all kind of personal information to be used for their own purposes?

We better use our electronic – or, rather, technology based slaves – to assist us in the practical executions of our tasks. The more intelligent the system is, the more trustworthy will be its functionality.

It will be sensible though to keep in mind the laws of robotics of Asimov:

First Law: A robot may not injure a human being, or, through inaction, allow a human being to come to harm.
Second Law: A robot must obey the orders given it by human beings except where such orders would conflict with the First Law.
Third Law: A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

These are functional instructions and have to be enforced by natural persons…

If they do not abide, put them in a closed container.

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[1] Associate professor and director of Center for Law and Internet, Law Faculty, VU University)

[2] and in the roman empire and later times also applicable to slaves of the owner: “caput sequiter” meaning the legal responsibility follows the head of the slave (to the owner)

[3] http://www.catholic.com/quickquestions/what-exactly-is-a-soul

[4] Interesting are the observations of Bodin concerning the vested sovereign rights of individuals towards the Prince as representing sovereign of the commonwealth. So the principle stands, that the Prince is not subject to his own laws, or those of his predecessors, but is bound by the just and reasonable engagements which touch the interests of his subjects individually or collectively. Jan Bodin, Les six livres de la Republique, translation by M. J. Tooley 1955, Blackwell Oxford, Chapter VIII, on sovereignty.

[5] Geldart, Legal Personality (1911) 27 L. QUART. Ruv. 90, at 94.in: John Dewey, The Historic Background of Corporate Legal Personality, Vol. XXXV APRIL, 1926 No. 6, p. 655

[6] John Dewey, The Historic Background of Corporate Legal Personality, Vol. XXXV, APRIL, 1926, No. 6

[7] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on Electronic Commerce’)

[8] These obligations are integrated in Dutch law in article 3:15 Civil Code

[9] Bob Dylan, 1964

[10] See also, “Automatisch contracteren”, dissertation 2010  by Marten Voulon, chapter 3

[11] Although the weapon industry and cigarette industry  are blamed for killing people, this is more based on the responsibility of the industry and the people who control the companies.

[12] Ibidem note 10

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