Artificial autonomous agents and the question of electronic personhood: a path between subjectivity and liability^*

* Antonio Iannì: Sections (1), (2), (3), (4). Michael William Monterossi: Sections (5), (6), (6.1), (6.2), (7).

ABSTRACT

Technological acceleration has led to the creation of innovative electronic autonomous agents. Considering this phenomenon from a legal point of view, the gradual introduction of such agents into daily relationships stresses both the categories of legal subjectivity and legal liability. Starting with a terminology toolbox, then this paper will investigate the impact of those agents on the legal order, especially regarding civil liability. To manage this ‘dilemma’ (liability), some have proposed giving artificial autonomous agents legal personality. By adopting an historical approach to legal subjectivity and personality, this paper tries to shed light on the reciprocal interdependency between the diverse criteria used by the law to attribute liability and the diverse legal persons to which such liability is assigned. The study of the positioning of non-human entities into this legal framework represents an key step in the process of regulating an issue which, at the beginning of the Fourth Industrial Revolution, is now a contingent reality.

KEYWORDS:

• Artificial autonomous agents
• legal subjectivity
• natural and legal personhood
• liability
• electronic personhood

Acknowledgement

This article is the revised version of the conference paper presented at the 2016 Law and Society Association of Australia and New Zealand (LSAANZ) Conference – Temporality, Disruption, Law: The Future of Law and Society Scholarship, held on Nov. 30-Dec. 3, in Brisbane. Our sincere thanks go to the Conference Organizers for giving us the opportunity to present our research to an international audience, exchange ideas and discuss them with distinguished scholars, thus enriching our analysis with valuable and useful feedbacks. In addition, we thank the anonymous referees for their precious comments. We also would like to express our gratitude to the Ca’ Foscari University of Venice, and especially to Professor Carmelita Camardi, which allowed us to take part to this Conference and supported us during this whole experience.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributors

Antonio Iannì Ph.D. in Comparative Private Law, Ca’ Foscari University of Venice (Doctoral Program: Law, Market and Person).

Michael William Monterossi Ph.D. Candidate in Private Law, Ca’ Foscari University of Venice (Doctoral Program: Law, Market and Person).

Notes

* Antonio Iannì: Sections (1), (2), (3), (4). Michael William Monterossi: Sections (5), (6), (6.1), (6.2), (7).

1 Schwab (2016), pp 11–12.

2 For example, there has been an increase in both general and specialist debate following the first fatal crash involving a self-driving vehicle and a pedestrian (which occurred in Arizona, in March 2018). See, e.g., Knight (2018).

3 In this sense, see Calo (2016).

4 For a brief overview of these cases, see Weaver (2013), p 12.

5 The difference between driverless car (sometimes called self-driving car or autonomous car) and driver-assist car, even today, is not as tenuous as one might think. In this regard, see, e.g., the ranking laid out by the U.S. National Highway Traffic Safety Administration (NHTSA), where we can find six different levels – from the ‘weakest’ to the ‘strongest’ – of automation/autonomy, at https://www.nhtsa.gov/technology-innovation/automated-vehicles#36046.

6 For example, this happens under Article 2 (section 105 – definition of goods) of the U.S. Uniform Commercial Code – as interpreted and applied by courts. For an account of this judicial tendency, see Weber (2012), pp 471–473.

7 See Woodard (2009).

8 Kim (2018), p 311. Moreover, the same doubts still exist within in EU Law: see, e.g., Howells et al (2017).

9 See Woodard (2009), pp 446–450.

10 For example, for U.S. law see Restatement, Third, Torts: Products Liability.

11 Alpaydin (2014), pp 2–3.

12 This has been noted by a few scholars. See e.g., Calo (2016), pp 3–5.

13 For a critic account of this view, see, e.g., Elvy (2017), pp 104 ff.

14 For this perspective, see Balkin (2015).

15 Sommer (2000), pp 1177–1178, 1183.

16 Easterbrook (1996), pp 207–208.

17 In this sense, see Lessig (1999).

18 See Pietrzykowski and Kurki (2017).

19 This type of scientism, which denies the political value of most of the legislative and doctrinal rules, is quite widespread within the civil law and EU law experiences especially with regard to the so-called patrimonial private law (property, contracts, and civil liability). For a critique of this approach see, e.g., Somma (2014), pp 5, and 172 ff.

20 European Parliament resolution of 16 February 2017 with recommendations to the Commission on Civil Law Rules on Robotics (2015/2103(INL)), at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2017-0051+0+DOC+XML+V0//EN.

21 Paradigm shift in the meaning of an enormous change in the political, legal and economic life of a community. At the same time, and with particular reference to the scientific context, we are referring here to the Thomas Kuhn’s concept of paradigm shift: see Kuhn (1962/1996), pp 89 ff.

22 For a general introduction, see Maes (1990).

23 Jensen and Meckling (1976), p 308.

24 Wooldridge (2009), p 21.

25 McFarland and Bösser (1993), p 213.

26 See for example Tzafestas (2016), p 196.

27 Beer et al. (2012), pp 16–17.

28 Beer (1995), p 173.

29 Franklin and Graesser (1996), p 25.

30 See Bedau (2014), pp 296 ff.

31 Chopra and White (2011), p 10.

32 Russell and Norvig (2010), p 1020.

33 Weber (1922/1949), p 93.

34 It is not a mere coincidence that the Latin term persona originally meant the mask that was used to be worn by actors, and only later – during the Late Republic – it acquired the meaning of ‘role’ that each individual – depending on the context – ‘performs’ in society. For example, Cicero wrote: ‘Unus sustineo tres personas, mei, adversarii, et iudicis’ (De Oratore, 2, 24,102) [‘I sustain one of three roles: that of my own, my adversary and that of the judge’].

35 See Schiller (1978), pp 403, 526–530.

36 See Duff (1938), pp 1–26.

37 Gaius, I, 123, English translation available at http://thelatinlibrary.com/law/gaius1.html.

38 Digest, 31, 34, English translation available at https://droitromain.univ-grenoble-alpes.fr.

39 Gaius, I, 159, 162.

40 See Johnston (1999), pp 42 ff.

41 For a readable and authoritative summary, see Mousourakis (2012), p 85.

42 See Buckland (1908), pp 3–5.

43 See Novellae Theodosiani (439 D.C.), 17. 1. 2, available at https://droitromain.univ-grenoble-alpes.fr.

44 Institutes, 1. 16. 4., English translation available at https://droitromain.univ-grenoble-alpes.fr.

45 See Duff (1938), pp 35 ff.; see also Orestano (1968).

46 See, e.g., Koessler (1949).

47 Pagallo (2013), pp 156–157.

48 See, e.g., Runciman (1997), pp 223 ff.

49 Hobbes (1651/1998), pp 106–109.

50 Case of Sutton’s Hospital (1612) 77 Eng Rep 960, available at http://oll.libertyfund.org/titles/coke-selected-writings-of-sir-edward-coke-vol-i--5.

51 Book 1, Chapter 18, Of Corporations, available at https://lonang.com/library/reference/blackstone-commentaries-law-england/bla-118/. See also Kyd (1793), p 13.

52 See Cooke (1950), pp 66 ff.

53 See Pollock (1911); see also Holdsworth (1922).

54 See Machen (1911); see also Diesselhorst (1982–1983), available at http://www.centropgm.unifi.it/cache/quaderni/11/0320.pdf.

55 See Savigny (1840), 2, §§ 85–86, pp 235 ff.

56 See Harris (2006).

57 Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394 (1886), applying the Fourteenth Amendment’s protections, enacted after the Civil War against racial discrimination.

58 The California Constitution recognized the right to deduct debts from the amount of taxable income, but this right was only given to the natural persons.

59 Chopra and White (2011), p 184.

60 Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819).

61 Teubner (2006); Matthias (2004).

62 White House, Executive Office of the President, National Science and Technology Council, Committee on Technology, Preparing for the Future of Artificial Intelligence (2016), pp 7–8.

63 House of Commons, The Science and Technology Committee, Report: Robotics and Artificial Intelligence, 2016.

64 European Parliament, Civil Law Rules on Robotics, European Parliament resolution of 16 February 2017 with recommendations to the Commission on Civil Law Rules on Robotics (2015/2103(INL)).

65 University of Pisa, Guidelines for Regulating Robots, document produced as part of the research conducted within the University of Pisa and coordinated by professor E. Palmerini – Robolaw – Regulating Emerging Robotic Technologies in Europe: Robotics facing Law and Ethics. The research was financed by the European Union in the Seventh Framework Programme (FP7/2007–2013) and was concluded in May 2014, with a proposal discussed at the European Parliament.

66 See Bertolini (2013), p 238; Bertolini et al (2016).

67 See also Decker (2014). Even in this case, the European Parliament calls on the Commission to evaluate the possibility to foresee a compulsory insurance scheme for the owners of robots. In particular, the solutions put forward are that of: (a) establishing a compulsory insurance scheme where relevant and necessary for specific categories of robots whereby, similarly to what already happens with cars, producers, or owners of robots would be required to take out insurance cover for the damage potentially caused by their robots; (b) ensuring that a compensation fund would not only serve the purpose of guaranteeing compensation if the damage caused by a robot was not covered by insurance; (c) allowing the manufacturer, the programmer, the owner or the user to benefit from limited liability if they contribute to a compensation fund, as well as if they jointly take out insurance to guarantee compensation where damage is caused by a robot; (d) deciding whether to create a general fund for all smart autonomous robots or to create an individual fund for each and every robot category, and whether a contribution should be paid as a one-off fee when placing the robot on the market or whether periodic contributions should be paid during the lifetime of the robot. See European Parliament, Civil Law Rules on Robotics, principle no. 59.

68 European Parliament, Civil Law Rules on Robotics, principle no. 59, lett. f: [Calls on the Commission, when carrying out an impact assessment of its future legislative instrument, to explore, analyze and consider the implications of all possible legal solutions, such as]: ‘creating a specific legal status for robots in the long run, so that at least the most sophisticated autonomous robots could be established as having the status of electronic persons responsible for making good any damage they may cause, and possibly applying electronic personality to cases where robots make autonomous decisions or otherwise interact with third parties independently’.

69 See Solum (1992).

70 Leroux et al. (2012) p 57.

71 Cfr. Haselager (2005), p 517; Tavani (2012) about consideration of whether robots can be deemed as ‘full-ethical-agents’.

72 Chopra and White (2011).

73 Chopra and White (2011).

74 See Bertolini (2013).

75 On this topic see Thomas (2016).

76 As Thomas underlines, by using the fictional device of as if, the law expressly denies that its object is reality. See Thomas (2016).

77 Latour (1993).

78 See Thomas (1998) refers to the anti-modern critique of the subject when analyzing the proposal to give rights to nature, advanced in 1972 by Professor C. Stone: see Stone (1972).

79 On the concept of reification of abstract notions in law see Orestano (1987), p 399. Significantly the Author highlights that the usage of abstract notions over time may lead to their progressive reification, until they assume the shape of more or less anthropomorphic images, associated to corporeal reality with an own life be reified.

80 Orestano (1978).

81 For a philosophical explanation of such dichotomy see Esposito (2014).

82 For an in-depth historical perspective on the theme of the double nature of public legal subjects and its implications during the middle-age see: Kantorowicz (1957). As regard Roman law history, see Thomas (2016).

83 Teubner (1994), italian version (2015), p 62; Cayla and Thomas (2002).

84 Rodotà (1964).

85 Barcellona (1996).

86 Orestano (1971).

87 Rodotà (1964), p 189.

88 On the coincidence between liberal ideological schemes and liability based on fault see: Ewald (1986), pp 49 ff.

89 Tucci (1974), p 459.

90 Orestano (1978).

91 Barcellona (1996).

92 In cases in which property remedies were not available to the owner. See: Mattei (2000) and Mattei (2015).

93 Rodotà (1964).

94 Tucci (1974), p 459

95 Ripert (1949), 218.

96 Rodotà (1964), p 21; James (1948), p 459.

97 Rodotà (1964) p 22.

98 Gruber (2016).

99 Josserand (1897), p 7: ‘en devenant industriel et mécanique, l’accident devenait en même temps anonyme’ [in becoming industrial and mechanical, the accident became at the same time anonymous]. See also Savatier (1931), p 6 and Ripert (1949).

100 Rodotà (1964) p 17.

101 Beck (1992).

102 See Ewald (1992).

103 See Josserand (1897) and Dalloz, 1900.2.289 (Note Josserand).

104 Rodotà (1964).

105 Rodotà (1964), p 84

106 Teubner (1994), p 62; Barcellona (1996), p 553.

107 Rodotà (1964), p 52. See also: Hart and Honoré (1959).

108 Latour (2005), p 46.

109 Rodotà (1984), p 598.

110 See: Josserand (1897). To deepen the perspective of Louis Josserand, who has been one of the founding father of the theory of objective liability in France but more in general in Europe, see Jutras (1993).

111 Article 2050 Italian Civil Code: ‘Everyone is liable for injuries caused by things in his custody, unless he proves that the injuries were the result of a fortuitous event’.

112 Monateri et al (2016).

113 Trimarchi (1961).

114 In Italian Law, such hypothesis is disciplined by article 2052 of the Civil Code: ‘The owner of an animal, or one who makes use of it, for the period of such use, is liable for damage caused by the animal, regardless of whether the animal was in his custody or strayed or escaped, unless he proves that the damage was the result of a fortuitous event’.

115 The zoo-morphic concept of the thing as a mechanical beast was developed by Louis Josserand in a series of comments to holdings pronounce between 1925 and 1930 in which judges were called to apply la ‘responsabilté du fait de choses inanimées’ (responsibility for inanimate things). See in particular: Dalloz 1928.1.97 (note Josserand); Dalloz 1929.2.41 (note Josserand); Dalloz 1930.2.105 (note Josserand).

116 Greco (1954), p 220.

117 Article 2049: ‘Masters and employers are liable for the damage caused by an unlawful act of their servants and employees in the exercise of the functions to which they are assigned’.

118 Article 2050: ‘Whoever causes injury to another in the performance of an activity dangerous by its nature or by reason of the instrumentalities employed, is liable for damages, unless he proves that he has taken all suitable measures to avoid the injury’.

119 In the Italian legal system the discipline introduced by the directive is now included in the Legislative Decree 206/2005 (Codice del Consumo).

120 Article 114 Codice del Consumo.

121 For a comparative perspective of product liability in Europe see Machnikowski (2016).

122 Ripert (1948), p 303; Josserand (1987).

123 Latour (2007), p 37.

124 Latour (2007), p 32.

125 In general see Rodotà (1964) and as regard the specific topic under scrutiny see Bertolini (2013).

126 For a depth analysis see Calabresi (1970).

127 Luhmann (2005).

128 Teubner (1994), Italian version (2015), p 62 and Gruber (2016).

129 Teubner (1994), Italian version (2015).

130 See Sindell v. Abbott Laboratorie 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132, cert. denied, 449 U.S. 912 (1980).

131 Schultz (1991).

132 Urgenda Foundation v The Kingdom of the Netherlands (Ministry of Infrastructure and Environment) [2015], Verdict, The Hague District Court C/09/456689/HA ZA 13–1396 (2015; the English translation of the ruling is available from the website of Urgenda http://www.urgenda.nl/documents/VerdictDistrictCourt-UrgendavStaat-24.06.2015.pdf.).

133 Case No. 2 O 285/15 Essen Regional Court; case documents available from the following website: http://climatecasechart.com/non-us-case/lliuya-v-rwe-ag/.

134 Latour (1994).

135 Latour (2007). See also Verbeek (2005) and Verbeek (2011).

136 See Gruber (2016).

137 Beck (1992).

138 Henkel and Andersen (2016).

139 Teubner (2006).

140 Latour (2005), p 217; Gruber (2016), p 99.

141 Mattei and Quarta (2018), pp 93 ff.

142 See European Parliament, Civil Law Rules on Robotics, European Parliament resolution of 16 February 2017 with recommendations to the Commission on Civil Law Rules on Robotics (2015/2103(INL)).