The Normative Power of Artificial Intelligence
Indiana Journal of Global Legal Studies, Forthcoming
19 Pages Posted: 16 May 2023
Date Written: 2023
Artificial intelligence technologies are increasingly spreading across society. Generative systems, such as ChatGPT and DALL-E, provide only some examples of the expanding consumption of artificial intelligence products in daily lives. Particularly, the reliance on the systems in public and private sectors reinforces the process of technological delegation which characterizes the algorithmic society. However, the standards applied by artificial intelligence systems are not always immutable, particularly when focusing on unsupervised machine learning technologies. These systems do not only make decisions on how to moderate online speech, check employment performances in the workplace, or evaluate credit scores. They also contribute to creating norms, thus defining another generative layer of normativity in the algorithmic society. This work argues that artificial intelligence systems autonomously develop norms by experience and learning within an opaque, technical space that tends to escape the logic of the rule of law. This normative system, or the rule of tech, raises questions for constitutional democracies that are already struggling with solutions to limit other forms of normative powers, particularly the power of online platforms to set private standards. Within this framework, the plurality of these normative powers has put the rule of law under pressure. The expansion of the rule of tech as a source of norms leads to addressing the role of the rule of law in limiting technological delegation in the algorithmic society. The proposal for the Artificial Intelligence Act in Europe is only an example of how the rule of law can limit the expansion of the rule of tech in the digital age. This work analyses the consolidation of the normative power of artificial intelligence systems and examines the spaces for the rule of law in the algorithmic society.
Keywords: digital constitutionalism, artificial intelligence, rule of law, spaces, norms
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