The Law Of The Future
“The future is already here – it is just not very evenly distributed.”
~ William Ford Gibson
In January 2017, two online transportation companies named Uber and Careem found themselves in a bit of trouble in Pakistan. The trouble entailed, inter alia, non-registration of vehicles with the relevant authorities and provision of transportation services without the requisite permits. However, these were the lesser of the evils that the companies had to deal with. The greater dilemma was that the country did not have any law to regulate online transportation companies, their vehicles and their services. The Provincial Minister for Transportation of Sindh boasted on television that he was among those who were present at the launching ceremony of Uber in Pakistan. The provincial government had allowed a company to operate in the country in the absence of any specific law to regulate it.
Technology is the product of human mind but at times it propels us to a point in time or brings about changes which we lack foresight of and are eventually not ready for, thus transcending our comprehension. We saw this in the case of cloning. When the science and ‘art’ of cloning were perfected, the world was not ready to accept it on ethical, religious, social and legal grounds. But, it was and still is a very potent scientific tool which can be utilised in various avenues where our moral compasses do not allow it go. Another incontestable truth about technology is that it only develops exponentially and at times, it permeates through borders and spreads epidemically. Technology does not care whether a given nation has laws and policies to accommodate it. As long as it can find its use, it will find its own way. The social media apps do not consider whether a given country has adequate cyber security laws or not. They are globally used in identical ways, regardless of absence or presence of relevant legal regimes. Many developing countries which were otherwise struggling in many ways, were forced to take measures to align themselves with the new trends due to the new era they were ushered to.
When Uber and Careem were finally allowed to carry on with their businesses in Pakistan, a disturbing truth emerged. The authorities desperately searched for any available legislation or instrument that they could use to regulate the businesses of the two companies. They were reluctant to proactively deal with the matter and table a new bill. This, although disturbing as it shows lack of political will, was not unexpected. A country that is still predominantly run by its pre-independence era legislation and procedures, will have to go a yard or two extra to get out of overwhelming torpidity. But, the truth is that most of the world is not legally ready for the future. The world is not mapped according to the ‘readiness’ of nations for changes in technology.
The books of jurisprudence are rife with questions like ‘what the law is’ or, in a given moral dilemma, what course should the law take. Whether it is the positivist brand or the dogmatic natural law, the themes resonated by them are invariably just attempts by jurists to isolate or single out law from other propositions. Their focus has generally been on leveling criticisms against their opponents or on manufacturing a hypothesis that can best explain the situation of law as they saw it. If jurisprudence is the study concerned with the past or current state of law, then these jurists have served that purpose well. They have destroyed shadows and shed shining bright light which enable us to view the picture that is right in front of us. However, we need a radical shift in jurisprudence if we want to survive the wave that is about to hit us. The legal minds must conjure up the spirits to view the prospects of the law. A futurist’s approach for jurisprudence is not only a proposition but, it is a need of time. The world was greatly bothered by mechanisation. Now, we are at the paradigm shift which will thrust upon us a future for which we need to be ready. Perhaps, a few examples can illuminate the point.
The machines are not only taking our jobs but, in the future, they will be doing those jobs more efficiently than us. In 2016, 19-year-old Joshua Browder created the first ‘robot lawyer.’ [i] The chatbot lawyer had a 64% success rate for contesting parking tickets. The robot had only ‘practised’ for 21 months by then. The robot lawyer provided its services free of charge. Again in 2016, a law firm, Baker and Hostetler, acquired the services of Artificial Intelligence lawyer “Ross.”[ii] Ross is the world’s first artificially intelligent attorney built by IBM. Ross can argue, formulate hypotheses and respond to queries based on in-depth research because of complex algorithms that go in its (his) making. Besides these, Ross can monitor court decisions and can make suggestions. In another instance, scientists from University College London created a ‘robot judge.’[iii] The artificially intelligent judge could predict the outcomes of cases with 79% accuracy. According to Clara Shih, CEO of Hearsay Social and Director with Starbucks, today’s jobs can be put in three buckets and the first bucket to disappear when Artificial Intelligence takes over are jobs of drivers, lower-skilled manufacturing jobs and certain research functions (including paralegals). The future with machines and Artificial Intelligence (AI) looks bleak for the legal sector.
At present, driverless cars are becoming more popular and unmanned drones capable of transporting humans are being tested. However, there is no specific legal framework to adequately accommodate such innovative technology. If the driverless car or the unmanned drone encounter an accident, how will liability be assessed? Will the exactitude of algorithms eliminate the torts of recklessness and negligence? Can a machine or a program be prosecuted? The future may make us ask pertinent questions regarding the ‘rights’ of AI. When should an AI be terminated from employment? What should be the minimum ratio of human to AI in a company employing both? When is it not reasonable or suitable to employ a robot or a self-learning machine to replace a human? Defense Advanced Research Projects Agency (DARPA) is testing the merger of humans with machines. If that futuristic experiment comes through, what kind of rights would those ‘man-machine hybrids’ have? The current jurisprudence has not envisaged such changes and is neither adequate nor efficient enough to deal with the future. Elon Musk, the CEO of Tesla and SpaceX has proposed universal basic income to deal with the massive lay-offs that the future will bring with itself, whereas Bill Gates has proposed that robots that replace humans should pay taxes.[iv] Are the current salary and tax regimes capable of dealing with such a future? Unfortunately, no. We still do not have satisfactory answers for genetic banking that satisfy the legal, ethical and social considerations. China is considered to fall on the conservative side of the spectrum. However, the recent intellectual property (IP) statistics show that China is the number 1 filer for all IPs in the whole world. China has, since 1980s, revised its trademark law thrice. It has kept abreast with the global trends and now, it is leading in many areas. But, even in developed countries, the problem still is the lack of visionary jurisprudence encompassing the upheaval the future has in for us.
The legal scholars, academics and researchers along with futurists, technology developers, investors and other stakeholders should join hands to address this issue in an adequate way. As mentioned above, we have already seen technology outpace legal development and evolution. It is time we learn a lesson from the past and do the necessary overhauling. A brand new jurisprudence that caters for the future should be developed and published globally. The feedback from other scholars and academics will take the matter further and help refine the ideas put forward. We must escape the ‘isms’ that trap us for the better part of our lives and take this initiative immediately lest the machines do it for us.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.