Introduction/Context
With the advent of the universality of digital technologies and their pervasive influence, ‘the law’ has of course reacted, and in its various manifestations (legislative, regulatory, criminal, transactional, instructional, etc.) there has been a huge amount of ‘law and technology’ activity. The latest wave of (digital) technological development which has demanded response is that of (Generative) Artificial Intelligence, and it is far from clear that we have reached the high-water mark of this phenomenon of digitalisation of the social world and to what degree coming to terms with it will require revolutionary changes in legal process and legal concepts as opposed to adjustment of already tried and tested categories and responses.
In this welter of activity, coupled to the widespread recognition that law is ‘playing catch-up’, it is easy to see that law in this arena reveals itself not as sovereign, able to command, but rather as itself a technology, or a series of technologies (in the Heideggerean sense of an approach based on an ‘always already’ impulse to convert something into something else) struggling to understand the object(s) of its attentions. (Compare to Luhmann’s ideas of law as a closed communicative system.)
In order to deal with this pattern of playing catch-up, law formulates two basic responses that create a kind of janus-face. The first is to ally itself with (digital) technology and allow for the incorporation of patterns of algorithmic automaticity in the law in two modes; the first is based in the practice of ‘RegTech’, in other words the incorporation of digital technologies into social practice and activities in such a way that compliance with legal regulation is automatically guaranteed as a design feature, rather than needing to be enforced.
The second is a pattern of transactional law denoted as ‘smart contracting’ where contracts are automatically formed between parties where certain algorithmically set conditions are met. In either case, the regulation or the contracting, the law takes on an algorithmic cloak in order to become ‘self-executing’. This plays to a notional fundamental quality of law as providing certainty, rule and order and given the supposed flexibility of digital (coded) process relative to analogue, the idea is that law equips itself much better effectively manage social relations by itself becoming digital. It is the embrace of the utilitarian technologization of law.
In terms of the second attempt for law to ‘catch up’ and the broad awareness of the multiple potential legal transgressions facilitated by radical advances in digital technology (for example deepfakes, invasions of privacy, identity theft) a second fundamental notional quality of law, that it should be concordant with, if not identical to, substantive social justice, leads to a search for some kind of a priori to law, some more basic framework from which to work a set of legal interventions or approaches from first principles.
This explains, in this law and technology context, the turn towards ‘ethics’, which term at times denotes ‘providing right (coherent and justified) legal answers to difficult questions’ (ethics as normative instrumentality). At root this approach is simply a more sophisticated form of legal utility and as such is in no way incompatible with the technologization of law. A more radical approach is the search for ethics as a kind of ‘outside’ to the legal system that would situate the utilitarian modernist approach of law in a wider context.
The search then for ‘ethical’ responses to the current dilemmas posed by Artificial Intelligence requires that attention be paid to the anthropological and sociological basis of our current constructions of various legal conceptual tools to see somewhat more clearly the ground on which we stand.
In relation to the onward march of digital technologies and the concomitant generation of legal response, one core feature of the landscape will certainly involve considerations of ‘contract’, given that there is high awareness of the inefficacy and potential negative unintended consequences of attempting to regulate new areas by way of inflexible formal stricture.
In other words, as a culture we are in the realms of attempting to make reasonable deals with an as-yet unexplored future, of figuring out the give and the take, the prizes and the penalties, of tomorrow’s world: we don’t (yet) know enough to have the confidence to act by way of legal prohibition, and so we turn to transactional legal process as a model. The stakes are, on multiple levels (ecological, humanistic, militaristic), existential. The level of ‘contract’ we are working with here is therefore not the detail of conditions and terms, but the big-picture issue of some kind of grand bargain with our future selves, with the world we would like to live in, with the fundamentals we would like to live by.
So, considering both ethics and contracts, the ethical question par excellence becomes one of how to put understand things sufficiently well to make a bargain with the future, to institute a new social contract (with nature) (Serres, 1991). This project will address this dilemma, looking to theorists from a range of disciplines who are trying to take the long view on new technologies and conceptual architectures, and to establish conceptually sound analyses on which to ground regulatory approaches and legal responses.
Staff
The project is led by Professor Eugene McNamee and largely supported on the basis of his University-allocated research time, supported by Dr Morgan Macleod for research-related admin support (event organisation/publicity etc) and School of Law admin/clerical support.