The scope of change that is coming is truly unprecedented. The economist, Michael Spence, recently observed that on the current track of development, by 2050, the computational power of the best machines will exceed the total collective computational power of the human species. It is impossible to know the meaning of a titanic upsurge in computation on that scale. If computation represents human cognitive enhancement, then the closest historical precedent is the coming of literacy more than 1,500 years ago. Just as writing allowed human beings to vastly extend their minds into new directions, so too will be the radical extension of the mind that will become possible through artificial intelligence. Legal technology will ride the wave of changes that technology will bring. The legal services industry is evolving, and the changes are coming quickly and bringing with them both hope and fear. Legal philosophy can help us understand how legal technology will change the law and its role in society. Philosophy changes perspectives and brings new insights, and legal technology today needs this perspective and insight because the law is essential to the health of our democracy.
It is particularly important for legal technology firms to understand that their work is of vital importance to the future, to the liberty of persons, and to the collective aspirations of people around the world for hope and peace and the means to flourish. Legal technology firms need to understand their importance to society. Only companies committed to a clear mission that betters society will be able to attract funding, maintain focus, and garner the support of government, which is of vital importance to their survival. The January 2018 letter of Larry Fink, the founder of BlackRock, should be gospel for the legal technology industry. Slick products alone will not result in long-term success. As Fink puts it, to sustain long-term performance, you must “understand the societal impact of your business as well as the ways that broad, structural trends … affect your potential for growth.” And, there are some obvious ways that philosophers can help with this lofty goal.
Legal Technology and the Logical/Informational Structure of Law
Legal technology challenges the way that legal concepts are understood. Smart contracts, for example, challenge conceptions of offer, acceptance, and the negotiated exchange between persons that are standard in the law. A logician can be helpful for describing the law in terms of set theory, which is common among the fields of computation, mathematics, and philosophy. Since legal technology requires converting the semantic expression of law into something that can be interpreted by computers, philosophers who have studied logic, mathematics, and information are well-suited to investigate the basic structures in law. They can be useful for thinking about how legal concepts function.
Consider the concept of “fiduciary duty,” which is foundational for understanding many legal doctrines in areas as diverse as corporate law and government responsibility. Despite being ancient, it is notoriously under-theorized. Although there are many laws that depend on a firm concept of fiduciary duty, the structure and nature of the duty are undefined. For that reason (at least in part) there is a good deal of disagreement about the fiduciary duties owed by parties to Distributed Autonomous Organizations (DAO). Philosophers with a background in the philosophy of information could contribute to this debate by helping to understand the informational structure of fiduciary duty, which would result in a better understanding of these new entities.
Legal Technology and General Theories of Law
Some legal technologists believe that legal meaning can be reduced to some formal language or process, which can be computable. There are many approaches to developing the formal analysis of law. Some expert systems, for example, model legal reasoning by attempting to formally state the logical structure of law. This is typically expressed in terms of Boolean algebra or a computational algorithm. Other approaches look to model socio-cultural forces. This is more common in quantitative modeling.
The desire to model law reductively has complex cultural origins. It was the impetus for early twentieth-century legal philosophy, with its characteristic debates between legal formalists and realists. Formalists in this sense believe that law consists of a relatively few formal legal principles, and realists believe that law includes sociological and economic relations. A good deal of ink has been spilled on this debate, and the details of it remain contested and poorly understood by most lawyers and law professors. The debate continues today among legal philosophers, but the emphasis has shifted to fundamental questions about what it means to say a claim about the law is true. These debates now draw from socio-cultural studies as well as analytic philosophy and neo-pragmatism. There are many interesting philosophical claims to investigate in this area. The developers of legal technology can benefit from knowing something about these debates and why they matter.
This is very abstract work to which philosophers are well-suited. Some of the very best predictive analytics is being done by using machine learning to look for regular patterns in law. This is done by sorting through large datasets that are generated by picking out traits or events in law. In doing this work, the machine learning AI can reach conclusions about what can be measured in order to predict a legal outcome. This work would obviously benefit from a philosopher with a detailed knowledge of the debates about the nature of law and how they have influenced theories of law. A legal philosopher can point out assumptions about the law that have been discredited and hold social science models to their limitations.
Legal Technology and Moral Philosophy
The new information and communications technologies are raising profound moral issues. This is due, in part, to the vast extension of human power that these technologies offer. The ability to predict and control human behavior will be transformative for the law. But, perhaps even more impact will be derived from the new self-understanding that comes with new concepts that are attributable to information science. Human beings must now understand themselves as informational structures, whatever else they might be.
Technologists who seek to contribute to the betterment of society, as Larry Fink suggests is necessary for long-term survival, must understand and embrace these challenges. Philosophers who understand the shifts in moral theory and practice are needed by technology companies to act responsibly in the changing world. There are many issues that are undergoing a substantial change that requires new thinking that can draw from the past without being constrained by it. A critical openness to the future is needed. Philosophers can be very useful in helping to keep a legal technology company on track.
The treatment of privacy by social media companies has attracted attention to the moral dimensions of technology. Personal data has profound moral meaning and implications for justice. It is not possible for the average consumer to be aware of the risks entailed by a click-through acceptance of privacy policies. The issues are deeply complex, involved, and require some assessment of the significance of data in relation to the moral dignity of persons. Data collectors and sellers need to be aware of the moral issues surrounding their practices. Moral philosophers with a strong background in law are useful for this. The issues evolve, often faster than the law. So, having access to someone who knows the traditions for thinking about moral meaning and value can be essential to making good, long-term choices for a firm.
Legal Technology and Democracy
Law plays a foundational role in democratic governance since the rule of law is essential to a fair and just society. Legal philosophers with a background in political theory can help a technology firm understand the impact that their product will have on democracy. While some of the best firms, like Ross Intelligence, make a point of considering how their product will impact the practice of law and the state of the profession, it is very rare to find much thought being given to how the changes will influence democratic discourse and the moral meaning of striving together through our political institutions.
It should be clear that all of these multi-dimensional issues have to be considered with a discerning interdisciplinary perspective. Their solutions need to be negotiated by sociological and anthropological experts, economists, lawyers, political theorists, information systems experts, computer scientists, and others. Philosophers can play important roles here because of their concern for consistency in perspectives about what constitutes truthful statements, what is foundational, how liberal democracy works, the nature of law, and other important questions. It is typical that philosophers will hold other disciplines to the limits of their foundational presuppositions—to make sure that computer scientists aren’t telling lawyers what the law must be or vice-versa. Philosophers who have specialized concentrations can be useful. By adding a legal philosopher to their board, legal technology firms can gain perspective and understanding. This will be necessary going forward to keep up with the radical changes that are coming as computational power grows explosively.