AI is upon us. Many see the emergence of the artificial intelligence as a unique and unforeseeable threat. If we try to step back, we can actually distinguish at least two reasons why AI is perceived as a threat. The first and the most widespread one is primarily stemming out of the general human difficulty to embrace the new and the unknown, especially if this is novel at such magnitude. This is certainly compounded by the intuitive fear that this particular new technology is bringing with it a very deep change that can, potentially, eliminate many jobs or even the entire professions. In the case of lawyers, this threat is rather unprecedented as the profession has uninterruptedly been developing for centuries with ever growing number of professionals together with their reputation and standing in the societies which they served. These fears are not unfounded, and the lawyers as an educated part of population quickly properly grasped the full potential of the emerging technology which does, indeed, bring to potential of automatizing large segments of the traditional legal work. The survival instinct of the entire profession kicked in and the lawyers turned their sights the other way from the imminent developments for a couple of decades.
The second ground for perceiving the emergence of AI as a threat is much more elaborate in the sense that it stems out of the understanding of the inherent traits of AI. Examples of such threats might be the issues of “explainability” and “unlearnability”. Many informed legal professionals will have already appreciated one problem in human interfacing with AI. Namely, there is an important barrier that arises when the AI delivers its decision based on the automatically gathered intake used of the machine learning process, and this comes without a humanely intelligible reasoning behind it. Of course, in the administrative and judicial contexts, this means that such a decision cannot be properly examined for the purposes of appeal. This is called the “explainability” issue. This is compounded by the apparent fact that even if an explanation is provided, the humans which are tasked with eventually controlling the outcome, increasingly tend to follow the AI decisions without further questioning them.
The other, namely the “unlearnability” issue, arises when the automatically gathered intake is programmed to remain unchanged regardless of the moral and ethical considerations that it represents in interacting with humans. Problems which were reported include those that arose when some chatbots were programmed in such a way and in the short time started making offensive racist remarks because that is what they have learned automatically online. The fact that many vocal individuals and other bots express such objectionable views online resulted with the particular AI powered chatbot becoming racist in spite of the general moral attitude where the humans try to rise above such traits. Therefore, it became necessary to shut down this particular chatbot over some 48 hours of its functioning as it was not possible to reprogram it so to unlearn the racism it has developed.
The role of the rule of law has been raising in importance for centuries to take the position of the very central axis of social organization. The feudalism was replaced by the rule of law and the civil democratic societies as the forces of social reorganization were unleashed by the industrial revolution and were aided by the way we have started using law to regulate the individual rights in itself. There can be very little doubt that law and the legal system, followed by the raising role of the intangible assets protected by law, have brought unprecedented levels of development to a number of societies on the planet. It could be even asserted that this potent combination of judicial and legal systems in conjunction with intellectual property in particular have brought the highest rates of development in the entire human history. Law did serve us a potent booster for development like no other social institution in human history.
Feudalism might have been ultimately replaced by civil society and the rule of law as the central axis of organization of modern societies. While it may have lost its dominant role, it did no disappear. While we were proudly and rightfully touting this achievement as a progress of human race, the feudalism morphed, shifted and transformed itself into a different quality, and have persistently remained a part of the social organization. It is impossible to overlook its morphed remnants in the very visible role in constitutional monarchies where royal sovereigns play an important role. Not least, in many a country, republics or monarchies, there is a number of associations composed of the individuals who are heirs to the formerly noble families and who keep the alive the memory of the feudal social structure. It is possible to imagine legal system morphing and shifting into its future role in a similar manner.
Former President of the High Commercial Court of Croatia, late Justice Blažević, remarked once publicly that, while we were rightly proud of introducing the rule of law, we don’t have an automatic right to remain proud of this achievement unless we help our societies to move beyond it. What he wanted to emphasize is that, after two centuries, the time has come for the societies to embark on a search of a better tool for social organization than the legal system that served us so well thus far. Our societies have been trying to make this point towards legal system over the last couple of decades ever more forcefully. The first signs of avoiding the usage of legal system as a main tool for dispute resolution appeared as soon as interest based dispute resolution methods were developed and deployed.
While it is clear that law will not disappear in the future societies, it is becoming increasingly certain that its role will shift and its form will morph. In accordance with the so called “principle of layering” in technological development. To the people who have noticed that human innovations tend to survive in layers it is clear that all: print, radio, television survived the onset of each new technology, and that they all have continued to thrive after the emergence of internet, albeit with different roles and functions. Here it is possible to make the analogy with the developments in the social realm where we can also observe that the forms of human invention tend to stick around over the centuries without disappearing, unfortunately including slavery that also morphed and shifted to the social margins.
The emergence of AI therefore, does not mean an end of the rule of law. Indeed, moving beyond the rule of law requires its strong functioning in the background. It does, likely signify a radical shift in the role of the rule of law. The first shifts and morphs in this process are becoming obvious not only to the well informed practitioners of law whom might not have a clear picture due to their vested interests, but in the first place to the societies at large. In order to predict what is coming it was over the last couple of decades, therefore, more useful to listen to the voices of the society at large rather than the legal professionals. Many of these impulses were note by Oxford professor Richard Susskind in his seminal book The End of Lawyers.
If we try to read the future we could probably first spot a chance for the AI as a potential savior of the legal system. As its inconsistencies increase under the ever growing complexity, the legal systems are ever worse suited to serve as a kind of guidance to their societies that they held as one of their most important traditional roles. Bringing consistency to the complex legal systems in the conditions of ever more populous, complex and diverging societies is a task legal systems were not designed to serve on such a massive scale. Just the doubling of the population on the planet would have seriously endangered the cohesion of the legal systems, but the growing social freedoms and the multiplications of the number of interactions enabled by the dependence on the internet sealed the fate of the traditional role for the legal systems for good.
Therefore, the deployment of the high capacity AI tools might decrease the pressure on the legal system operated by humans and increase any possible value it holds for the societies. Furthermore, I would submit that possibly, the most important role of the AI might be in the legislative field where machines might, in a superior way, become more able than humans to assure the integrity and consistency of the codified rules we are using to regulate our societies. Accordingly, rather than seeing the onset of the AI as a threat, the lawyers should get more involved in shaping its future forms and uses. The involvement of the lawyers in harnessing the power of human moral and ethical capacities will become a condition for the survival of the legal system to be operated sufficiently efficiently for the societies at large to perceive a real value in, what would otherwise be a cumbersome, complex and expensive system that otherwise produce relatively little value for the everyday challenges.
The question remains whether the legal system, if salvageable as described above, will still be the central tool of choice for the social integration. Our observation of the processes already in place indicate that this might not be enough. This does point to another potential role for the lawyers of the future. I feel that law might cease to be predominantly skills based profession, which it was for centuries. In a way, it might be argued that so many highly educated individuals providing specifically limited contribution to their societies is a bad use of social resources. The societies seem to have concluded this some time ago, when the Nobel prize for the contribution to the society did not include lawyers as its potential recipients. No contribution, no prize, to put it simply. To an active listener many centuries old jokes about the lawyers are as well a telling sign of the true social perception of their profession. If so, what could then a lawyer of the future be doing to change the perception and make a meaningful contribution?
I would argue that the answer lies in abandoning the skills as the core foundation of the legal profession. If we accept the role of the properly structured AI as a replacement for the basic legal skills what does remain? It is true that this means loss of traditional jobs for many legal assistants, trainees and associates as well as for many attorneys as well. However, I feel that already by addressing this threat, it is becoming clear that the morphing of the legal profession into a creative profession rather than skill based profession will be needed for its survival. It looks likely that the societies, in order to bridge the huge gap we have developed between our actual position in relation to the place that we need to be today in order to adequately address the needs of contemporary and future societies, legal profession needs de employ traits such as imagination and creativity. In other words, legal profession needs to morph into a creative and imaginative profession, rather than remain a repetitive skills based craft.
This means that innovation in the legal profession cannot remain limited to the introduction of the new products and services and inventing of the new marketing methods in the societies where they are permitted. In the societies that have realized that the innovation is a condition of survival these kind of efforts of the legal profession do not amount to a sufficient guarantee for its justification and its survival. By utilizing design thinking and imagination the lawyers of today and tomorrow will aim to shape the solutions we need to reshape the status at hand and realign the social forces for greater efficiency. In that sense, as lawyers, we need to pay more attention to the technological and social development and must not shy away from innovating profusely and abundantly the solutions our societies need to realign with their needs. For this to be achieved we need not only understanding of new technologies, but also gain different legal education and ambition to contribute to our society in innovative ways. If the AI will push us in this direction, it might, indeed prove to be the savior of our profession.
Text was published in the ECTA Daily Edinburgh, Day 1 pp 6-7, July 2019