A New Beginning or a Hastening of the End?: Sustaining the Ideological Evolution of Law in the Age of Artificial Intelligence
Posted: 13 Nov 2018
Date Written: October 22, 2018
Over the last decade increased emphasis has been placed on the role that artificial intelligence (AI) will play in disrupting the practice of law. Although considerable attention has been given to the practical issues of designing a computer to ‘think like a lawyer’ there has been far less reflection on other relevant yet often intangible issues that exist, including the impact of legal AI on both the rule of law and our conceptual understanding of the law itself. In this paper we address this gap, providing a comprehensive overview of the way in which technology has been used in law, and the way in which it may further shape public and private legal service delivery. We argue that law is a mechanism for balancing competing interests, providing the infrastructure within which those competing interests can be expressed and reconciled. We observe that the imposition of AI in certain legal contexts and settings has the potential to silence this discourse by subverting the plurality of law - displacing the heterogeneity of legal expression with a form of homogeneity that arises by virtue of the constraints of the technology itself. We also observe the way in which certain forms or implementations of AI may operate to subvert the rule of law - the ideological roots which underpin the stability of democracy and which permit the regeneration and growth of law. However, if we understand and make explicit the model of law being imposed by a particular form of AI, it is possible to preempt the likely rule of law impact – enabling us to deploy AI in a way that strengthens core rule-of-law values and more fairly distributes the associated risks and benefits of new technology. In substantiating these observations, we begin in Part I by setting out a definition of AI and law, developing a framework by which to understand the intersection between law and AI, and highlighting the fundamentally pluralist nature of law. In Part II we explore the building of law machines: tracing the evolution of formalist rule-based AI approaches through to modern data-driven techniques and revealing the theoretical assumptions imposed as a consequence of the technological paradigm employed. In order to measure the potential impact of AI when applied to law and legal service delivery, in Part III we assess AI against a series of rule-of-law derived criteria, revealing the range of difficulties that AI poses for the rule of law. Finally, in Part IV we examine the pragmatic challenges that arise in balancing the risks and rewards of AI by considering the issues that should shape and that are likely to shape the use of AI in law. We conclude in Part V by advocating for the creation of a ‘rule of legal AI’ designed to solidify the shared values that ought to underpin future developments in the field.
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