The Work of Law in the Age of Artificial Intelligence, or How Is the Academy Dealing With the "fourth Revolution"?

• Citation: Vol. 1 No. 2
• Publication year: 2018

Nachshon Goltz and Joel Gilmore^*

The authors of this article argue that the research of the intersection of law and artificial intelligence is challenging as it is dominated by those who research the latter. The intelligence being developed at this intersection is a legal intelligence, and as such should be led by legal experts and not computer scientists.

"The true is what he can; the false is what he wants."

—Madame De Duras¹

This article will argue that the research of the intersection of law and artificial intelligence ("AI") is challenging as it is dominated by those who research the latter. Rather than identify fields of law that AI can enhance, most of the work deals with new AI capabilities and their applicability to law.² Yet experience and reason push us to realize that the study, practice, and application of the law is highly contextualized and interpretative; perhaps even "the law cannot exist in an uninterpreted form."³ The intelligence being developed at this intersection is a legal intelligence, and as such should be led by legal experts and not computer scientists. The process is upside down.

The Fourth Industrial Revolution

Artificial intelligence has been described as "the fourth industrial revolution"⁴ although, as Schwab points out, this revolution is inherently different from the previous three in that it deals not so much with advances in new technology, as with the ways in which digital technology is becoming normalized and ingrained in human society. AI is entrenched in and revolutionizing law much like any other field.⁵

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Problems with this can be illustrated through parallels with Walter Benjamin's observations of art in the age of mechanical reproduction: it can be treated as a postmodern equivalent of Benjamin's critiques of art in modernity. For example, one parallel is the way in which specific instances of legal practice (such as giving advice or judging any case) are a product of tradition, with the meaning of the law being informed and shaped by meanings previously ascribed to similar words in similar situations. Meanings of locutions arrived at over time could often not have been predicted from the apparently clear and plain English meanings of the words on paper. And as Benjamin notes about art, "the uniqueness of a work of art is inseparable from its being imbedded in the fabric of tradition. This tradition itself is thoroughly alive and extremely changeable,"⁶ and concludes that a mechanically reproduced copy of an artwork incises it from this context, removing most of its basic worth as art.⁷ What is left is something inferior; it has been stripped of its "aura," that is, the authenticity in its unique expression of time and place. He suggests that in the case of mechanically created "art" the artistic aura of authenticity has been destroyed. The applicability of this to AI and law is obviously that mechanical reproduction of art removes the precise image from its context and tradition, in much the same way that AI removes law from the texture and context of its own traditions. These traditions are unpredictable, illogical, and "human, all too human."⁸ Art cannot be created mechanically if it is to have all the essential features of a work of art, and instance of legal interpretation or application of law cannot be created mechanically, either.

Another parallel between art/mechanical reproduction and law/AI lies with Benjamin's observation that:⁹

Experts have long recognised that in film "the greatest effects are almost

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