THE LAW OF THE FUTURE: SEARCHING FOR NEW TRUTHS OR CONSERVING TRADITIONAL VALUES?
- Authors: Rafalyuk E.E.1
- The Secretariat of the Court of the Eurasian Economic Union
- Issue: Vol 24, No 4 (2020)
- Pages: 843-863
- Section: STATE AND LAW IN CONTEMPORARY WORLD
- URL: https://journals.rudn.ru/law/article/view/25242
- DOI: https://doi.org/10.22363/2313-2337-2020-24-4-843-863
The digitalization of the economy and society, the introduction of artificial intelligence in human activities actualize a number of new issues related to both the legal support of these processes, and areas of development of law as a regulatory system, and the relationship between law and technology. Understanding of law in conjunction with other social institutions determines its role not only as a normative regulator, but as a cultural and historical phenomenon. The aim of the article is to analyze the problem of changing the value (ethical and moral) element of law in the context of technology development. The investigation will be based on an interdisciplinary approach. The author concludes that the progress of law is defined by the values protected by it, which traditionally includes justice, equality, good faith, common sense, etc. The transformation of human-technology relations at the present stage raises the question of moving toward technological humanism or turning to traditional humanism. The author formulates the hypothesis that the law in its value component cannot be replaced by artificial intelligence. The research studies the forms of securing value ideas in international law. By the example of international acts and case law it is shown that international organizations are in search of a balance between the use of artificial intelligence and respect for human rights. It is concluded that the law is able to maintain its essential foundation without turning into technology, addressing universal principles of law, and searching for the balance between scientific and technological progress and human rights.
Law is a part of society and it reacts to all changes that occur in it. Digitalization as a global trend in the development of economy and society based on transformation of information into digital form (Khalin, Chernova, 2018:47), shift to other forms of communication through on-line technologies, introduction of remote working and studying, which were widely used during the fight against COVID-19 pandemic, undoubtedly influence the development of law as a regulatory system. Legal theorist and philosopher Werner Krawietz noted that “...New technological possibilities have changed the practical possibilities that a person has in his/her legal actions, but with them and through them, the social reality of law has also changed” (Krawietz, 1998:123). The change in the “human-technology” relationship (Vlasova, 2015:170-173, Kasavina, 2018:129-142, Rostova, 2019:50-59) as a philosophical problem raises before legal science a new range of issues related both to the legal support of digitalization and various legal aspects of artificial intelligence application and development of law in the digital age, and correlation between law and technology in general. The use of artificial intelligence is rapidly expanding, including in the field of legal activity. “Robotization and technologization of legal activity are quite common” (Khabrieva, 2018:13): self-learning algorithms are used for analyzing large amounts of data and investigating crimes, artificial intelligence is used to perform certain tasks of a lawyer (Ponkin, Redkina, 2018:91-109), in judicial and banking activities, corporate procedures (Vojnikanis, Semenova, Tyulyaev, 2018:140), etc. The expanding digitalization generates a normative transformation (Tikhomirov, 2020). The normative transformation seems to be taking place in several directions. Firstly, legal regulation of various aspects of artificial intelligence and robotics application is being developed (Neznamov, Naumov, 2017:14-25). Secondly, the law itself, as a social institution, is undergoing certain changes: “it gradually accepts, as subjects and new atypical objects, phenomena that, according to the old legal classification, have an inanimate, non-subjective and non-objective character like genome engineering, biotechnology, Internet, and artificial intelligence” (Sinyukov, 2019:11). So, it can be noted that the Law of the Russian Federation No. 1-FKZ “On Amendment to the Constitution of the Russian Federation” dated March 14, 2020 (Article 1, paragraph 6, subparagraphs “v”, “g”) revised Article 71, subparagraphs “I” and “m” of the Constitution of the Russian Federation of December 12, 1993, according to which “information technologies, ensuring security of an individual, society and the state when applying information technologies, and circulation of digital data” are under the authority of the Russian Federation. Transformation of law in a global sense (not only its normative “envelope”) owes to the multidimensional nature of law, interpreted as a part of culture (García Cívico, 2018:13), and as a system of social communications (Antonov, Polyakov, Chestnov, 2013:78-95). The synthetic understanding of law in the context of combination of sciences and arts that make up the “great anthropology” of human culture (Häberle, 2006:151; 2002:104; Häberle, Kotzur, 2003:5) seems relevant today, when human and individual is replaced by technical and typical; therefore it is important to refer to art as “a form of creativity, way of spiritual self-realization of a person through sensory and expressive means” (Ivin, 2004), form of social consciousness, and specific kind of practical-spiritual development of the world” (Il'ichyov, Fedoseev, Kovalyov, Panov, 1983), and to law as to art. Let us recall the definition of law introduced by Celsus, the ancient Roman lawyer, as “the art of good and justice” (Jus est ars boni et aequi). S.S. Alekseev, a Soviet and Russian legal theorist, devoted several his works to the study of social value of law. He justified the importance of the value-based characteristic of law as a necessary and socially useful tool for social development, identified specific properties of law (normativity, formal certainty, coercion, and dynamism) and showed their social value in regulation of public relations. The scientist described law as an independent value due to its specific content, which is also reflected in the fact that “legal norms embody the prevailing moral principles, i.e., the basics of justice” (Alekseev, 2019: 47). The author highlighted the relationship between law and culture, noting that the properties of law, legal technique, and legal language can be characterized “as gradually accumulating elements of intangible spiritual culture” (Alekseev, 2019:201). Professor Jesus Garcia Civico studied the relationship between law, society and culture from the perspective of the “man-society-culture-law relationship” (García Cívico, 2018:15). Miguel Reale, legal theorist and philosopher, the author of the “threedimensional theory of law”, believed that law involve normative (norm), factual, social and historical (fact), and ethical and moral (the value of justice, which is put as the task to be preserved) elements. According to Reale, through multiple forms of correlation between facts, values, and norms, arise and develop various legal experiences, which, in their turn, are mutually influenced and overlap (Reale, 1985:203- 224, 1997). A broad understanding of law in relation to other social institutions determines its role not only as a statutory regulator, but as a cultural and historical phenomenon. The increasingly spreading introduction of artificial intelligence into life effects the development of each of the elements of law (normative, factual and ethical). Legal science and philosophical thought are increasingly turning to the issue of future law. Several options for future law development have been substantiated (Khabrieva, 2018:15). Using the Socratic method of posing questions in learning the truth, I will indicate several problems and judgments, which may encourage discussion about the future of law. What is the role of the value-based core of law in the era of digitalization and robotization? To analyze this issue, I will turn to the ideas of Emilio Serrano Villafañe, the legal theorist and philosopher, who looked at the progressive development of law through its goals and values (Serrano Villafaña, 1973-1974:466). The author did not deny the development of law in accordance with the spirit of the time: “...since social progress is, in its turn, the progress of civilization and culture, hence the progress of law reflects not only legal forms, but also the forms of civilization and culture of society that give it life. [ ... ] Law must perform a progressive function and develop in accordance with time and with the reality and relationships it regulates” (Serrano Villafaña, 1973-1974:462-463). At the same time, Serrano distinguished “formal” and “substantial” progress of law. The former involves the technical aspect of law, the legislative expression of legal ideas, and their logical and clear expression (Serrano Villafaña, 1973-1974:469). According to the scientist, it is not the concern for the legal technique but for the goals and values that the norms are designed to implement that constitutes a perfect law and defines its functions. “The function of law is to reflect this changing social reality and regulate numerous legal relationships for the benefit of security, certainty, and common good; these are the goals of law among which justice is of prime importance” (Serrano Villafaña, 1973-1974:472). It seems that this scholar’s point of view can be accepted by modern scientific thought. Law regulates social relations, and therefore develops along with them. However, it is the goals and values of the law that determine its progressive development. Is the new digital reality able to change the traditional values of law? The formation of electronic culture which is taking place “on the basis of the process of global informatization of society, the development of digital technologies, creation of alternative computer reality, unified virtual environment of the Internet, is only a part of big changes associated with the emergence of a new type of society in line with scientific and technological development” (Kasavina, 2018:131). New society - new values? Leaving this question open, I would like to note that the content of universal principles of law, including equality, rationality, etc. is at risk of modification, since scientific and technical progress contributes to the formation of new standards of life and work, and artificial intelligence offers society “highly developed and intelligent machines” that compete with humans by analyzing large amounts of information and independently solving problems. Can introduction of artificial intelligence into legal activities effect the relationship between law and human consciousness? As professor N.A. Vlasenko argued “Law is a phenomenon of consciousness that expresses the objective values and requirements of human existence and is the unconditional source and absolute criterion of all human institutions” (Vlasenko, 2012:121). We cannot ignore the fact that besides human activity a “machine” is being introduced into legal practice, which makes the issues of acceptable limits and legal principles of artificial intelligence participation in the process of legal decisionmaking, as well as scientific verification and control of the operation of such artificial systems relevant. Neuroethics, which claims to constitute morality of a new neuro-improved society, where cognitive improvement and artificial intelligence will prevail, and a naturalistic paradigm in understanding of morality is gaining popularity (Sidorova, 2018:79). Thus, the relationship between “law and robotization” can be looked at as an ethical problem, where a new relationship between man and technology is being formed. What will they be like? Will they move towards “technical humanism” (Sanz Larruga, 1997:516) or return to traditional values of humanism, following the circle of “humanism - posthumanism - transhumanism - technohumanism - humanism” (Yakovleva, 2014:40-42)? These neuroscience data allow us to replace part of the human intellectual operations with machine operations. The sensory and emotional spheres of a person, which are the basis of creative activity, have also become the “object of pretension” by artificial intelligence. Scholars express different opinions on this issue. One of them stems from the idea that “Art and feelings cannot be replaced by artificial intelligence” (Zhilkin, 2018:19). Another allows for the possibility of introducing artificial intelligence into the emotional domain, in case emotions are “recognized as another way of thinking” (Minsky, 2006), thus admitting “the possibility of a machine analog to such type of thinking” (Karpov, Gotovcev, Rojzenzon, 2018:91). Law in the context of axiological methodology is based on values. The conditionality of values by human activity (“only for man and only through man does reality acquire a value character”) (Rasheva, Gomonov, 2006:173), allows us to assert that law at the value-based level cannot be replaced by artificial intelligence acting through algorithms and schemes, invented by person. What are the mechanisms for preserving the essential core of law? Universal principles of law, which are based on moral and ethical nature and express cultural and historical traditions, reflect the values of law. International law demonstrates various forms of implementing the concept of justice (Tolstyh, 2009:188) and other legal values. These include imperative norms of general international law (jus cogens), treaties and customary rules, general principles of law recognized by civilized nations, and a special mechanism for resolving disputes called ex aequo et bono (in justice and fairness). Thus, in accordance with Article 38 of the Statute of the International Court of Justice: “The court, which is obliged to resolve disputes referred to it on the basis of international law, shall apply: a) international conventions, whether general or special, establishing rules expressly recognized by the contesting states; b) international custom as evidence of universal practice recognized as a rule of law; c) general principles of law recognized by civilized nations; d) subject to the provision referred to in Article 59, the judicial decisions and doctrines of the most qualified public law specialists of various nations as an auxiliary means for determining the principles of law”. Under Article 38, paragraph 2, of the Statute, the Court may decide a case ex aequo et bono if the parties agree so. Article 34 of the MERCOSUR Permanent Appeals Court stipulates that ad hoc arbitrations and the Permanent Appeals Court may resolve disputes ex aequo et bono if the parties agree so. The possibility of applying generally recognized principles and norms of international law, as well as international customs as evidence of universal practice recognized as a legal norm, is stipulated in Clause 50 of the Statute of the Court of the Eurasian Economic Union (Annex No. 2 to the Treaty on the Eurasian Economic Union dd. May 29, 2014). The application of general principles of law and international customs by courts makes it possible to form a value-based component in judicial decisions based on the provisions of natural justice. As Professor T.N. Neshataeva argues “The latest practice of European courts shows the need to provide a new understanding of human rights in order to resolve contradiction between natural justice and scientific progress: the courts deal with cases of euthanasia, sex change operations and human cloning. In the absence of positive law, all these disputes are considered in terms of priority of human rights” (Neshataeva, 2004). The decision of the Court of the European Union of 8 April 2014 in the case “Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others” the Directive of the European Parliament and the Council 2006/24 /EC of 15 March 2006 on data retention obtained or processed by providing publicly available electronic communications services or networks and amending Directive 2002/58/EC was considered invalid because it entailed extensive and serious interference in the fundamental human rights concerning respect of private life and protection of personal data. Regarding the application of Article 8 of the European Convention on human rights, the European Court of Human Rights explained that “in accordance with the development of modern technologies, the concept of “correspondence” covers telephone and fax communications, e-mail, pager communication and Internet use, as well as letters by regular mail. Other means of communication may also fall within the scope of Article 8 of the Convention in the future [...]” (Harris, O’Boyle, Warbrick, 1995). International organizations are searching for balance between application of artificial intelligence and respect for human rights. The 2005 Declaration on Human Rights and the Rule of Law in the Information Society states that the rights and freedoms enshrined in the European Convention on Human Rights must be guaranteed to all without exception, regardless of the technical means used. In April 2020, the Committee of Ministers of the Council of Europe adopted Recommendation CM/Rec (2020) 1 to member States on the impact of algorithmic systems on human rights, which specifies a set of guidelines calling on governments to ensure respect for human rights when using, developing or purchasing algorithmic systems. States should ensure that algorithmic systems take into account reliability, confidentiality, data protection and security guarantees in order to prevent and reduce the risk of human rights violations and other adverse consequences for individuals and society. Earlier, the European Commission for the Efficiency of Justice adopted the European Ethical Charter on the Use of Artificial Intelligence in Judicial Systems and their Environment on December 3, 2018. This document sets forth the principles of using artificial intelligence in judicial systems and their environment: 1) the principle of respect for fundamental rights; 2) the principle of non-discrimination; 3) the principle of quality and safety; 4) the principle of transparency, impartiality, and reliability; 5) the principle of user control. The document states that the use of tools and services based on artificial intelligence must be carried out in good faith, taking into account the basic human rights specified in the European Convention on Human Rights and the Convention on the Protection of Personal Data, as well as in accordance with other fundamental principles set forth in the Charter. The conducted research allows us to look at law in the interdisciplinary context and ensure that modern problems of jurisprudence may only be studied with the holistic approach. The complex nature of modern jurisprudence, its “inseparable” inclusion in the system of scientific knowledge, implies making a fully justified “legal” decision of any type and level only in the interplay of legal knowledge and data of other, primarily social, sciences (Tarasov, 2019:126). Today, binding with natural science disciplines is also of great importance. It is obvious that artificial intelligence is embedded in society, partially replacing the intellectual activity of a person. It is important to find the place of the human being and their humanistic nature in the emerging digital society, thus it is fundamental to preserve the value-based ideals of humanism. Law, as a social institution, will undoubtedly undergo and is undergoing changes. At the same time, “it is necessary to overcome the obvious underestimation of the mechanisms of formation of legal consciousness and legal behavior in science and practice. Otherwise, only “textual” law will remain” (Tikhomirov, 2020). Raising the role of law and rule through education, upbringing, and ideology is one of the directions of development of the legal culture of society. At the same time, scientists have yet to comprehend the possibilities of harmonizing the values of law and digitalization of social life. The important issue is how law can preserve its essence without turning into technology. Let us answer this question metaphorically: “I imagine this measure to be something extremely thin - a razor blade, because it is often as difficult to find it, implement, and observe it as it is to walk on a razor blade that is almost invisible due to its extreme sharpness” (Efremov, 2017:69). “You should not take my expression about walking on a razor blade literally ... it is rather the highest subtlety of decisions, research, laws and morals and, of course, the choice of direction” (Efremov, 2017:702). One of the ways is to appeal to the universal principles of law as a starting point from a moral and ethical basis, as well as to find a balance between scientific and technological progress and human rights.
About the authors
Elena E. RafalyukThe Secretariat of the Court of the Eurasian Economic Union
Author for correspondence.
Candidate of Legal Sciences, Counsel of the Expert-Analytical Department of the Secretariat5 Kirova str., Minsk, 220006, Republic of Belarus
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