Will the 'Legal Singularity' Hollow Out Law's Normative Core?
70 Pages Posted: 22 Jan 2021
Date Written: December 1, 2020
This Article undertakes a critical examination of the unintended consequences for the legal system if we arrive at the futurist dream of a legal singularity—the moment when predictive, mass-data technologies evolve to create a perfectly predictable, algorithmically expressed legal system bereft of all legal uncertainty. It argues that although the singularity would surely enhance the efficiency of the legal system in a narrow sense, it would also undermine the rule of law, a bedrock institution of any liberal legal order and a key source of the legal system’s legitimacy. It would do so by dissolving the normative content of the two core pillars of the rule of law: the predictability principle and the universality principle, each of which has traditionally been conceived as a bulwark against arbitrary government power.
The futurists heralding the legal singularity privilege a weak-form predictability principle that emphasizes providing notice to legal subjects about the content of laws over a strong-form variant that also emphasizes the prevention of arbitrary governmental action. Hence, an inattentive and hurried embrace of predictive technologies in service of the (only weak-form) predictability principle will likely attenuate the rule of law’s connection to the deeper (strong-form) predictability principle. The legal singularity will also destabilize law’s universality principle, by reconceiving of legal subjects as aggregations of data points rather than as individual members of a polity. In so doing, it will undermine the universality principle’s premise that the differences among legal subjects are outweighed by what we—or, better still, “We the People” who are, as Blackstone put it, the “community in general”—have in common. A cautionary directive emerges from this analysis: that lawyers should avoid an uncritical embrace of predictive technologies in pursuit of a shrunken ideal of predictability that might ultimately require them to throw aside much of the normative ballast that has kept the liberal legal order stable and afloat.
Keywords: legal analytics, predictive analytics, singularity, legal singularity, legal technology, rule of law, liberalism, jurisprudence, critical legal theory, legal theory, legal realism
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