Abstract
This paper proposes to address the question of the legal status of artificial intelligence (AI) from a perspective that is unique to itself. Which means that, rather than attempting to place AI in the box of legal personhood—where many other nonhuman entities already reside, in a legal space where they are in a state of constant friction with humans—we will see whether these inhabitants can be placed in a different box: not that of legal personhood, but that of the intelligent machine. I accordingly argue that we have made a mistake in not clearly maintaining the original separation between legal persons and human persons: this is how legal persons—particularly as the concept applies to corporations—have so far been claiming and gaining the rights ascribed to humans, on the basis of their personhood. AI instead suggests the need to work outside the framework of this fiction: it suggests that we should stop using the fiction of the person for something that is not a person in the first place and in the most original and primary sense of this word. I propose a different metaphor, the metaphor of the intelligent machine, to this end drawing on the work of Dan-Cohen (2016), who advanced this metaphor to argue that it fits corporations better than the metaphor of the person. In conclusion, we should be able to see that this metaphor of the intelligent machine makes a better fit not only for corporations but also for AI and robotics.
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Notes
At work in the background here is a distinction between the real and the fictitious, the natural and the artificial. For a discussion of how these elements interact in the construction of personality, see Radin (1932, 644).
Cf. Brooks (1991, 140), arguing that the ingredients needed to make for true intelligence, or “real AI,” are “mobility, acute vision, and the ability to carry out survival-related tasks in a dynamic environment.”.
Robots are also at the center of academic and political debates sparked by the European Parliament’s resolution on civil-law rules on robotics (European Parliament 2017). In Sect. 2, I come back to one of the responses to this resolution, a response encapsulated in an open letter signed by more than 200 scientists and researchers.
On the structural characteristics of the corporation such as we know it today, see Armour et al. (2017a). While the corporate form traces its origin to ancient Rome, it is primarily under Anglo-American law that the corporation gained the robust set of rights in virtue of which it has come to play in society the prominent role with which much of the debate is now concerned. On the early history of the corporate form, e.g., Maitland (1911).
Although corporations—through the corporate personhood they have been recognized as enjoying—stand as a model for understanding AI and robotic personhood, they are not the only prism through which it has been attempted to attack this problem. Solaiman (2017), for example, explores a similar link between robots, on the one hand, and chimpanzees and idols, on the other, for in some jurisdictions idols and animals alike are regarded as having a certain kind of legal personhood. As suggested, other links that can be explored for analytical purposes are between robots and states, trade unions, and political parties. But because I am taking issue with the corporation as a model for understanding legal personhood, it is that link alone (between robots and corporations) that I will be concerned with here.
This is a point we will be coming back to in the third part of this paper.
Burri (2018) takes this debate even further by arguing that these companies-as-AI-containers would have to be recognized within the EU as a consequence of the principle of “freedom of establishment,” under which a company recognized in one EU member state automatically has to be recognized by all member states. Hence, it is enough for one member state to recognize an AI-driven company as a legal person, and it will be recognized as such across the EU.
In highlighting these properties of an organization, Dan-Cohen (2016) uses the vocabulary of cybernetics, and later on, throughout the remainder of the book, he refers to AI, though the arguments he makes in doing so are different from the ones being presented here..
While some of these ideas inform the present discussion, I will not be able to address them here.
I should anticipate here that rights—or human rights, understood as the rights that humans enjoy both within a democratic system and outside any system of protections—are not the only good which corporate activity threatens to undermine. That is because to violate a right is also to undercut the ability of right-holders to protect their legitimate interests. There is a whole genre of literature devoted to the effects of corporate greed, criminal or otherwise from the legal, economic, social, political and other perspectives. Paradigmatic in this regard is the downfall of Enron, the subject of a movie titled Enron: The Smartest Guys in the Room (2005), directed by Alex Gibney and adapted from the book of the same title. Other movies of corporate greed include The Corporation (2003), directed by Mark Achbar and Jennifer Abbot, and Thank You for Smoking (2005), directed by Jason Reitman. A more detailed list is available at https://www.urban75.net/forums/threads/anti-corporate-movies-the-definitive-list.78604/. Accessed 27 December 2019. For a critical analysis of some of these movies, see Hamilton (2009), esp. chap. 2.
Indeed a practice has been observed in this regard, which is “to extend syllogistic deduction from the premise of legal personality to the existence of other characteristics of ‘personhood’ […] such as ethnicity or the protected enjoyment of civil rights” (Armour et al. 2017a, 8).
It would seem that something like the scenario just described is already unfolding with AI. Hamilton (2009, 175), for example, denounces the personalization of bots, which she considers as “the archetypical case of the posthuman person.” Let us also bear in mind that Hamilton was making these considerations 10 years ago, when bots were still the most advanced example of what AI could do.
Hamilton (2009, 34) takes a critical stance here, viewing these social expectations and their translation into corporate social responsibility as “attempts to morph the corporate person into a respectable citizen.” On this view, corporate social responsibility can become a tool for bringing the legal person closer to its human equivalent: a tool, in other words, by which to “humanize” the corporation.
Needless to say, the same reasoning could apply to AI and robots: if their purpose lies in profit alone, without regard to the greater good of society, their use can be expected to follow the same course we have seen with the corporation, and if they are mainstreamed into society on the basis of a profit motive alone, they may well not develop as felicitously as they could if they had social purposes built into them.
In the United States, this sense of public outcry was perhaps most emblematically expressed when President Obama was campaigning for reelection in 2012: “I don’t care how many times you try to explain it,” he said: “Corporations aren’t people. People are people” (Greenfield 2015).
Freedom of religion, clearly a human right, has been found by the US Supreme Court to be a right that also belongs to corporations: it does so indirectly through its ascription to the human beings who own the corporation. It does so through the metaphor of the corporation as a person, for if both a corporation and the people who own and control it are persons, then there is evidently no problem in ascribing the same right to the one and the other. The logic of the metaphor, if followed through consistently, is such as to require such a dual ascription of rights across the board: since both corporations and humans are people, there is in theory no right of the latter that cannot also be recognized for the former. For more information on the case, see the case of Burvell and Hobby Lobby Stores, Inc., available at https://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf. Accessed 29 December 2019.
Dan-Cohen (2016) explains the limitations of corporate rights by reference to two conceptions of law: on one conception the law is aimed at protecting individual autonomy and freedom; on the other it is aimed at promoting social welfare and utility. His argument is that corporations can justify their rights on this latter (social welfare and utility) conception of law but not on the former (that of individual autonomy).
Consistently with that view, Dan-Cohen (2016) recognizes that corporations should not be entirely excluded from the ability to assert rights on grounds similar to those that justify the ascription of rights to humans. This argument can be found in chapter 4, discussing corporate claims to derivative and original autonomy rights. I do not address this debate here, but I do see it is a valuable contribution to, and further development of, the ideas presented in this article.
I should mention, in regard to “abilities and purposes,” that this is shorthand for what are actually two different conceptions for thinking about rights: we can tailor rights to a right-holder’s abilities—enabling that person or entity to find its full potential (this is the well-known capabilities approach I have discussed elsewhere in connection with AI)—or we can tailor them to the purposes those persons or entities are meant to serve. These two conceptions may seem to be at odds with each other, but only until we reach some kind of consensus about what kinds of entities robots actually are. I am now taking the view that they are more means than ends in themselves, but their future evolution may prompt us to revise that view, and this is one way in which, as I was saying at the outset, the argument I am laying out is still a work in progress: not yet a definitive solution to the problem of the legal status of AI, but still good enough as a suggestion for attacking that problem from a different angle, or so I would hope.
Is it not ironic, in this regard, that the corporation—classically defined as having “an existence distinct from the individuals who own and operate it” (Emerson and Hardwicke 1987, 299)—now presents us with the problem of having to distinguish it from those very individuals, the human persons through whom, according to the US Supreme Court (fn. 16), it gains human rights it could not otherwise aspire to, thereby forcing us to untangle a relation (between corporations and people) that was not meant to be tangled when the modern corporation was first conceived?
A further question, in connection with such autonomous companies, concerns the doctrine known as “piercing the corporate veil,” when courts find that there are grounds for taking down the wall separating a company from its owners, members, or shareholders so as to determine whether these persons can be held liable for what the company does. This means looking into the “minds behind” the company. These minds have so far been human but, as the scenario being depicted suggest, there may soon come a time when the courts piercing the corporate veil find not human minds but artificial ones or, even more abstractly, intelligent algorithms, which often come in the form of black boxes whose functioning is not known or not readily accessible.
Also implicit in this distinction is that, whereas in Bayern’s scenario the AI-driven company acts through rights it can exercise under both private and public law, in Dan-Cohen’s scenario Personless, Inc., can only exercise rights under private law, and only so long as these rights bear a direct or indirect connection with its goals.
As one anonymous reviewer put it, you cannot hold a watermill liable for killing a fish.
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I am grateful to the anonymous reviewers for their useful and thought-provoking comments, and to my copy editor, Filippo Valente, for his careful work on this article.
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Laukyte, M. The intelligent machine: a new metaphor through which to understand both corporations and AI. AI & Soc 36, 445–456 (2021). https://doi.org/10.1007/s00146-020-01018-7
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DOI: https://doi.org/10.1007/s00146-020-01018-7