1.
Introduction ^
I doubt that humanity will be that careless and naïve, although there are some clear alarming examples about humanitie's stupidity not to care about the earth's future, we still have ample opportunity to arrange for the integration of robotics in our future society in a way that will be beneficial to humanity and the earth.
As Erik Tjong Tjin Tai, in his contribution to the preliminary reports of the Netherlands Association of Jurists (NJV) stated: «If the facts too long deviate from the legal status and the right is unsustainable, the law must ultimately yield to the actual situation.»3 The question that follows, is a robotized society benefits from – a certain degree of – legal personality of robots or do we wait until the shore of the robotized society will turn the legal ship?
Does it remain a legal object or should there be a sui generis legal person added to the persons that now exist in our legal framework. Already cautious proposals are done to comply to the future to find legal solutions.4
In a transition to the integration of robots in a society environment, legal solutions will be based on the desirability and legitimacy of the use of robots. May robots also be controlled by another robot or will there always be natural person supervision? The answer to these questions is dynamic as the number of applications of robots in everyday life of consumers increases exponentially as the development of this «robot technology». Examples include the 3D printer for more and more products, self-propelled cars, the ever developed prosthesis for the human body, limbs and organs, exo-skeletons and autonomous social robots. This article gives an opening to this discussion which still has to go a long way.
2.
Robot ^
A robot is nothing else than an AI system that is different in form and function, and will be continuously developing. The first references to robots were mainly given to the anthropomorphic appearance, the human-like robot. Originally the term robot in a play by the Czech writer Karel Čapek, suggested by his brother Joseph, in his play, RUR, or Rossum’s Universal Robots.5 The word «robot» comes from an old church Slavonic word «Robota» for «slavery», «forced labour» or «monotonous work». Robotics is a collective name – loosely translated – refers to automate labour-intensive processes and the replacement of the human component in an action by a robot. This automation has been around since the industrial revolution, a widely used technique in the production. Usually, the robot performs a number of tasks to be carried out so far by an individual, instructed by human programmers.
«Autonomous machine that has physical similarities with humans, consists of sensors, power and control; and to able to interact with the environment or people autonomously to carry out certain tasks.»7
«A robot is a mechanical or virtual artificial agent (called ‹Bot›), usually an electro-mechanical machine that is guided by a computer program or electronic circuitry. Robots can be autonomous, semi-autonomous or remotely controlled and range from humanoids as ASIMO and Topio to nanorobots, ‹swarm› robots and industrial robots. A robot may convey a sense of intelligence or thought of its own.»
The robot can be considered as a dynamic evolving concept that started as a machine and is constantly evolving into a complex autonomous functioning robot and – in later stage – humanoïde system. The nature of this entity, electronic, or organic-chemical is less relevant. The state of intelligent autonomy will be relevant for its legal status.
One in this light, primitive but topical example of this development is the «intelligent» car. According to the road traffic law the driver is the responsible party. But how to justify it when the driver has no control of the car anymore but the car depends on numerous providers of information? These providers are infrastructure, road managers other motorists, the producer, the meteorological department, the designer of the algorithm at the heart of the learning vehicle and third party data providers that control or affect navigation and engine control. But what if a direct link between the brain activity of the «driver» and the software control is made? Not so futuristic, there are already cars that respond to drivers who threaten to fall asleep where certain movements betray a delay in reflexes. Going one step further those links are analysed in an external autonomous system that will control the traffic flow.10
To determine the legal classification of the robot as a simple tool, a legal object that is used as an instrument or as an autonomous robot that will operate independently. Whether robots should be compared to legal persons or legal objects is to be answered for a great deal on the basis of function and autonomy.11 This determines whether they are assessed as thing, as minor, non-subordinate, movable property, animals, or as an independent legal entity.12
3.
The physical person ^
However, there is some agreement on what is characteristic of the individual: one is equal in the physical sense but in a legal sense,13 a man of flesh and blood in a legal sense the bearer of rights and obligations. The law regulates who is Dutch, German, Austrian or Chinese, that every living human being is the bearer of rights and obligations but not always what is a natural person.14
4.
The natural and human behaviour, determines legal personality? ^
«Andrew Martin: In a sense I have. I am growing old, my body is deteriorating, and like all of you, intending eventually cease to function. As a robot, I could have lived forever. But I tell you all today, I would rather to a man, than live for all eternity a machine.»
«It has been said in this courtroom that only a human being can be free. It seems to me that only someone who wishes for freedom can be free. I wish for freedom.»
«No intuition of things intellectual but only a symbolic [discursive] knowledge of them is given to man. Intellection is possible to us only through universal concepts in the abstract, not through a singular concept in the concrete. For all our intuition is bound to a certain formal principle … this formal principle of our intuition (space and time) is the condition under which anything can be an object of our senses, and being thus the condition of sensitive knowledge it is not a means to intellectual intuition. Further, all the matter of our knowledge is given by the senses alone, whereas a noumenon, as such, is not to be conceived through representations derived from sensations. Consequently, a concept of the intelligible as such is devoid of all that is given by human intuition. (2:396)»
5.
Artificial legal persons ^
In the ancient Egyptian society it was common to use the legal structure of a foundation to maintain temples. In Roman civilization, there were several legal entities, the Universitates personarum similar to corporations or government colleges with their own identity and legal personality.
As John Dewey indicated already in the Yale Law Journal in 1926: «The Corporation is a right-and-duty-bearing entity.»22 And, as stated, are not equal to humans, they have a legal personality to act in legal sense. Although it is a legal fiction, granted to organizations and other entities they can only act in a legal manner that is in the best interest and the purpose of this legal entity. There is a global spectrum of legal persons in civil law. In the United States, this means even to some extent the application of the Bill of Rights guarantees to corporations. Carl Mayer describes this situation in the United States on the basis of the development of equal treatment under the fourteenth amendment.23 Companies are considered persons for the purpose of fourteenth amendment, i.e. should have the right to equal protection and due process.
6.
Different Legal Persons accepted in society ^
7.
The artificial intelligent entity or robot ^
In today’s society are those systems or robots often controlled by natural persons but there is an undeniable trend towards the use of self-thinking and self-acting systems. Also natural persons are controlled in their professional activities in comparable ways. Robot applications will be in the field of all kinds of industry, hosting, social and physical support, care robot in physical and social sense, the sex robot, industrial robots, medical robots, surveillance robots, military robots, drones, etc. In the medical sector molecular nano-robots are deployed of chemical or organic origin.25
8.
Legal Subject or Legal object specialis? ^
The degree of suitability for legal personality autonomy and intelligence can be simplified by using the following formula R = ai.mn> hi = rp.26 It is so far considered that:
«Legal actions will be carried out by legal entities, i.e. legal automated systems, electronic or other, whether or not autonomous, more and more used to take part in all sorts of relationships in our global society. The fact that these systems and devices can act autonomously and may bring changes in legal relations will eventually continue to have legal effect for the user of the system.»
The liability of a legal person shall also apply to the director or directors, being natural persons at any time during the lifespan of the liability of the legal persons if they had the responsibility or were authorized to act for the legal person. This seems to apply to AI and robots as well. Robots can be classified simply as a legal object, but they can also occupy a special position. In several publications, the comparison has been made with slaves. Already in 200128 and later also in 2005, the intelligent agent, as a software robot, was compared with a slave, deployed to carry out a particular task.29 If we make the comparison with the position of the Roman slave, it must also be taken into account that the slave relation between their master and society as a whole was more than instrumental. They could perform in a legal representative position, they could perform independently legal transactions and could appear as a witness in court. Moreover, he could be declared a free man by his master (manumission).
9.
The legal acts ^
This view I share with Voulon in the sense that any legal effect which is caused by an autonomous and less autonomous system must be attributed to the natural or legal person who has made the decision to commission the system in its service operations.32 One would apply the level of liability of the person or entity related to the degree of control exercised over the autonomic system thereby also taking the legal effect into account. However, this would only be the case with regard to liability and accountability to the natural or legal person. The malfunction or failure of the autonomic system can be significant with regard to the recognition of the legal liability of the actor. The autonomous system itself, however, can never bear any legal responsibility until there is a degree of legal personality.
10.
Conclusion and steps into the future ^
Should an autonomous system or robot, even with an independent intelligence and emotion to function in our society not need to have a legal status that is similar to the rights and obligations of natural and legal persons in the positive law? How will the contours be defined. Even as an autonomous system passes the Turing test, this would not create any legal responsibilities per se. However, it is advisable that certain forms of acting by autonomously functioning intelligent systems as social robots or legal enforcement robots may be conceivable to obtain a certain form of legal personality to carry out their tasks. This though, is based on the essential requirement that that there is a social and legal necessity.
- 1 J. Lehman/R. Miikkulainen, Extinction Events Can Accelerate Evolution, St. Mary’s University, Canada, 2015 (http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0132886 [all Internetsources accessed on 13 February 2017]).
- 2 R. van Est/L. Kool, Werken aan de robotsamenleving, Rathenau Instituut, Den Haag 2015 (https://www.rathenau.nl/nl/publicatie/werken-aan-de-robotsamenleving), p. 16.
- 3 TFE/E. Tjong Tjin Tai, Private Law for Homo digitalis, use and maintenance, preliminary advice for NVJ, 2016, p. 248.
- 4 Whereas, Ultimately, robots autonomy raises the question of heir naturally in the light of the Existing legal categories and whether they should be regarded as natural persons, legal persons, animals or objects or Whether a new category shouldering be created, with its own specific features and Implications as regards the attribution of rights and duties, as liability for damage […]. Committee on Legal Affairs/M. Delvaux, Draft report made for the European Parliament. DRAFT REPORT with recommendations to the Commission on Civil Law Rules on Robotics (2015/2103 (INL)), 31 May 2016, p. 5
- 5 In the final act of the play the robots revolt against their human creators. After killing most of the people on the planet, the robots realize they need people because they can only find out from them how robots are manufactured. This secret dies with the last man. In the final scene, there is a deus ex machina moment when two robots acquire human qualities of love and compassion and the sunset meet to create a new world. (http://www.sciencefriday.com/segment/04/22/2011/science-diction-the-origin-of-the-word-robot.html).
- 6 See European Research, Regulating Emerging Robotic Technologies in Europe: facing Robotics Law and Ethics (www.robolaw.eu).
- 7 Europe, Guidelines for regulating Robotics (http://www.robolaw.eu).
- 8 http://blog.robotpark.com/what-is-a-robot-51001/.
- 9 The Robot will have: the acquisition of autonomy through sensors and/or by exchanging data with its environment (inter-connectivity) and the trading and analysing of those data; self-learning from experience and by interaction (optional criterion); at least a minor physical support; the adaptation of its behaviour and actions to the environment; absence of life in the biological sense. Committee on Legal Affairs/M. Delvaux, Report with recommendations to the Commission on Civil Law Rules on Robotics (2015/2103(INL)), 27 January 2017.
- 10 See: https://youtube/pyphUsEmoak.
- 11 See: R. Van Den Hoven Van Genderen, Robot Law, a Necessity or Legal Science Fiction? (p. 170); Machine Medical Ethics and What About the Law? (pp. 167 ff.), in: Simon Peter van Rysewyk/Matthijs Pontier (eds.), Springer, Machine Medical Ethics, Springer International Publishing, 2014.
- 12 E. Schaerer/R. Kelley/M. Nicolescu, Robots as Animals: A Framework for Liability and Responsibility in Human-Robot Interaction, in: Robot and Human Interaction Communication – 18th IEEE International Symposium, 2009, pp. 72–77.
- 13 R. Van Hoven Van Genderen/E. Van Duin , «.... and deserves its own rights», NRC, 20 December 2014. See also H. Der Pluijm, Rights and Obligations for Robots, PC Active, 2013.
- 14 The Principles of European Tort Law («PETL «) refers to liability for «auxiliaries» (6: 102) – an apt term for robots as for us, though still below the PETL particularly thought of people. Article 3: 201 of the Draft Common Frame of Reference (DCFR) of the Principles, Definitions and Model Rules of European Private Law refers to workers or «similarly engaged» others, in which the phrase «similarly engages another» clues may contain cases of accidental damage, see: P. Giliker, Vicarious Liability or Liability for the Acts of Others in Tort: A Comparative Perspective, in: Journal of European Tort Law (JETL), 1/2011, pp. 38 ff. Then the robot will have to be seen as «another», where the employer is liable under the condition that he still has « the least abstract Possibility of directing and supervising their conduct through binding instructions» (C. von Bar/E. Clive [eds.], Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference, pp. 34–55).
- 15 I. Asimov, The Bicentennial Man and Other Stories, 1972, and later edited by Asimov as The Positronic Man (1993), co-written with Robert Silverberg, ultimately raises formed the basis for the script of the movie Bicentennial Man, 1999 starring Robin Williams.
- 16 Descartes, Principia Philosophiae, 1973. Jhering had a different view.
- 17 The Turing Test Proposed by Alan Turing (1950), was designed to providence a satisfactory operational definition of intelligence. Turing defined intelligent behaviour as the ability to achieve human-level performance in all cognitive tasks, sufficient is to fool an interrogator.
- 18 http://www.dierenrecht.nl/standpunten/rechten-voor-dieren.
- 19 Eq. by Kate Darling opinions in: Electronic Love, Trust, & Abuse: Social Aspects of Robotics, Miami, 1 April 2016.
- 20 In the Austrian case, the «surprising cognitive abilities» of the chimpanzee were named as the ultimate decisive argument to categorize Hiasl under the applicable law as a person or to grant him at least by analogy basic rights.
- 21 Book 3: Article 5 of the Dutch Civil Code.
- 22 J. Dewey, the Historic Background Of Corporate Legal Personality, Yale Law Journal, April 1926, p. 26.
- 23 C.J. Mayer, Personalizing the Impersonal: Corporations and the Bill of Rights, Hastings Law Journal, March 1990, Volume 41, No. 3.
- 24 Until 1956 women had to get pemission for performing legal acts from their husband.
- 25 R. Van Den Hoven Van Genderen, p. 170; R. Shoyama, Intelligent Agents: Authors, Makers, and Owners of Computer-Generated Works in Canadian Copyright Law, Canadian Journal of Law and Technology 2005, Volume 4, Issue 2, p. 129.
- 26 R = Robot autonomous artificial intelligence times social demand exceeds human intelligence creates a need for legal personality.
- 27 Examples are the molecular machines as designed by prof. Ben Feringa, Nobel laureate in 2016.
- 28 E. Schweighofer, Robotik. Rechtliche Aspekte, in: T. Christaller et al. (eds.), Robotik. Perspektiven des menschlichen Handelns in der zukünftigen Gesellschaft, Springer, Berlin 2001, pp. 135–172.
- 29 U. Pagallo, Robots in the cloud with privacy: A new threat to data protection?, Computer Law & Security Review 2013, Volume 29, Issue 5, pp. 501–508.
- 30 J. Pirenne, Histoire des institutions et des droit privé de l’ancien Egypt, fondation Egyptologique Reine Elisabeth, Brussels II, 1939.
- 31 M. Kaser/F. Bernard Joseph Wubbe, Roman Private Law, Enschede, 1971.
- 32 M. Voulon, Contract Automatic, Dissertation, Amsterdam 2010.