The use of artificial intelligence imposes itself as a reality and in this it produces a still unpredictable impact on law and on humanity, since reality impacts and also produces law. According to Niklas Luhmann (“The reality of the media”), our reality in today’s information society is created by the media. The media is a part of the law, and builds it, because it is a privileged means of communication in contemporary society, being its language more widely disseminated, and law is a language, with similar function.
This reveals a crisis of paradigms in law and a call for a transmutation, in order to findal ternatives to a possible death of mankind and history, the loss of autopoiesis (Luhmann), with the replacement by machines, robots or supercomputers, a condition of our possibility of existence. This is because in nature everything that is no longer relevant and has no function ends up mutated or discarded over time. We now live with the end of meaning, with the atomic bomb, aspect of the Death of God.
Before there was a sense in ancient subjects. Now we see the loss of the unity of sense, corresponding to Nietzsche’s nihilism. The question remains: With the widespread and progressive use of artificial intelligence, is the end of mankind and history? Have we come to what Nietzsche calls “too human”?
Are we facing the definitive overcoming of the carbon age, and with the extinction of the human from and the beginning of the silicon age, where a new form will arise, as Michel Foucault and Gilles Deleuze prescribe? This is the era of “machinic phylum”, a term forged by Gilles Deleuze and Felix Guattari, mentioning silicon in contemporary mannature agency.
Advogada e professora universitária. Bacharela em Direito pela UNIFMU. Mestre e doutora em Direito pela PUCSP. Doutora em Filosofia do Direito pela Università del Salento (Itália). Visiting researcher na Scuola Normale Superiore de Pisa – Itália (Roberto Esposito, supervisor). Pós-doutora pela EGS – European Graduate School, Suíça, em “Filosofia, artes e pensamento crítico”. Pós-doutora pela Universidade de Coimbra, Centro de Estudos Sociais – UC- CES – tutor Boaventura de Sousa Santos. Pós-doutora pela Faculdade de Direito da USP – Departamento de Filosofia e Teoria Geral do Direito. Pós-doutora em Direito e Inteligência Artificial – Programa de Pós-Graduação em Tecnologias da Inteligência e Design Digital, em projeto sobre Inteligência Artificial, coordenado por Lucia Santaella, da PUCSP. Pesquisadora colaboradora do Departamento de Filosofia da UNICAMP, junto a Oswaldo Giacoia Jr., do Instituto de Estudos Avançados da USP, Humanidades computacionais, junto a Teixeira Coelho, do Observatório do Racismo, coordenado por Teresinha Bernardo, do Grupo de Pesquisa Michel Foucault da Pós- Graduação em Filosofia da PUCSP, coordenado por Salma Tannus Muchail e Márcio Alves da Fonseca, do Grupo Transobjeto do TIDD-PUCSP, Pesquisadora do Instituto Lawgorithmics, coordenado por Juliano Maranhão. Sócia do escritório LBCA – Lee, Brock e Camargo advogados. Visiting fellow – Law Department -European University Institute – Florença/It
One wonders whether in the face of such transformations would we be facing a turning point, a new autopoietic turn, at a critical point in the form that the law is produced and how it is interpreted and applied? Can the indiscriminate and uncontrolled development, totally unconnected with a superior ethical and moral foundation of law in its application through artificial intelligence, indicate the end of humanity? Has the end of history and the death of mankind really come? Is this the empire of the oncoming machine, as glimpsed in works of science fiction?
Can the law being the expression of the “humanitas” be legitimately applied through artificial intelligence, which, exempt of feelings has no intuition and emotions, nor has it conscience and soul, limiting itself to a cold and dry application of legislation? Or is it possible to have a conscience too?
The goal is to, at first, investigate the ethical and moral dimension of automation and digitization, the indiscriminate use and commercialization, without responsibility and without control of our personal data by companies like google and facebook, the correlation of such thematic, with discriminatory, racist or sexist use in legal cases decided through artificial intelligence, involving data obtained through digital media. The ethical dimension encompasses the questions of whether or not artificial intelligence is a conscious intelligence, as well as the new societal paradigm, since we would be in the era no longer of an anthropocentric society, but of a “datacentric” or informational society, where freedom or excess (circulation) of information prevails. Finally, we aim to analyze the media and political representations of the main digital platforms, and their subsequent use by artificial intelligence, and how they impact Law, since reality impacts and also produces Law.
We are currently living the so-called Revolution 4.0, or fourth Industrial Revolution, in the face of extraordinary technological advancement and artificial intelligence, involving various impacts and changes in all social sectors, the virtualization of our self, the gestation of everchanging new subjectivity and new conceptions of time and space.
In the area of law, there are several impacts of new technologies and artificial intelligence. Holograms are being used as the newest form, for example, of computer mediation, that is, with mediators acting in a non physical, but holographic form in the resolution of out-of-court settlement for legal conflicts. More than ever we live in the age of uncertainty, according to what Quantum Physics calls the Principle of Indetermination.
This is because until this point of human and scientific development, the determination occurred because of the observer’s gaze, but within the space-time of determination. Thus, there is an expansion of space-time through virtualization, the use of artificial intelligence, and the complex human-machinic processes, where we see new spatial entities called hybrids, a hybrid form between the physical and the electronic.
In modern law there is a predominance of purely scientific and Cartesian technique and thinking, positivism, and in general the robotization and mechanization of thought. This disregards other fundamental aspects in judicial decision making, especially in the so-called “hard cases”, those involving collisions between fundamental rights. This leads to the insufficiency, for a proper solution, in the protection of the dignity of the human person, of a simple algorithmic mathematical formula, as in the proposal of Robert Alexy, which unfortunately has been adopted in many more recent judgments of the Federal Supreme Court in Brazil.
In mathematizing and quantifying legal thought, transforming it into calculation, it is disregarded that Law and Science, and Law as a Science have a history, and that the scientificity of Law itself also depends on the empirical element, on the experience (Pontes de Miranda, Miguel Reale), and then again, of history, reducing the legal reality to mathematical formulas, that is, to a simulacrum.
It turns out that this is just the beginning of the end. This reveals a crisis of paradigms in law and the need for transmutation, in order to find alternatives to a possible death of mankind and history, the loss of autopoiesis (Luhmann), the replacement by machines, robots or supercomputers, being a condition of our possibility of existence, before our replacement by machines and robots. This is because in nature everything that is no longer relevant and has no function ends up mutated or discarded over time.
The question remains: With the widespread and progressive use of artificial intelligence, is the end of mankind and history? Have we come to what Nietzsche calls “too human”? Are we facing the definitive overcoming of the carbon age, and with the extinction of the human form and the beginning of the silicon age, where a new form will come from, as Michel Foucault and Gilles Deleuze prescribe? This is the era of “machinic phylum”, a term forged by Gilles Deleuze and Felix Guattari, mentioning silicon in contemporary man-nature agency.
Artificial intelligence is increasingly being used in solving legal cases. But who watches, controls, and is accountable for the algorithms for racist, sexist, or discriminatory responses? It is known that socioeconomic, racial or gender discrimination has been occurring very frequently in the use of artificial intelligence system. The engine of various applications via artificial intelligence works basically as follows: The engine of such a program is an algorithm, an instruction set that applies to a data set. Depending on who builds these algorithm models, and the data collected that feed them, the result will be one or the other.
The Parliament of England through the Science and Technology Committee has opened an inquiry to examine the increasing use of algorithms (and artificial intelligence) in public and private decision-making to analyze how they are formulated, their possible corrections and especially the impact on people regarding their understanding, suggestion and / or induction in decision making.
(http://www.parliament.uk/business/committees/committees-a-z/commonsselect/science-andtechnology-committee/inquiries/parliament-2017/algorithms-indecision-making-17-19/). Such a phenomenon is called “Machine bias”, “Algorithbias” or simply, Bias, revealing itself with a non-impartial tendency. In that survey, it was
noted that the use of algorithms in the public sector can lead to discriminatory policing and indiscriminate monitoring, to intelligence agency actions, with clear behavioral influence and large-scale invasions of privacy.
In this important study, Virginia Eubanks, professor of political science at the University of Albany, author of the book “Automating Inequality,” investigates how technological tools shape, control, and punish the poor. Along the same line of critical thinking, a Boston University teachers research shows that machine learning systems have sexist biases, because in the most common data source, the Internet, there are already several associations of concepts that they induce or teach machines to establish certain correlations as true, without mediating their content, such as the “housewife = woman, genius = man” relationship. Due to several racist and discriminatory algorithms, some algorithms and digital auditing initiatives have been developed, as well as the construction of data sets, aiming at a kind of control or regulation of the use and result of the algorithms.
In France there is recent legislation prohibiting codification of court decisions to inhibit the use of artificial intelligence in the area of law. Law 2019-222 deals with judicial programming and judicial reform, establishing restrictions on the use of data: information regarding the identities of judges could not be used to evaluate, analyze, compare or predict the actual or alleged practices of these professionals. It was already reported the existence of the world’s first judge robot in Estonia, which will judge causes of lower economic value. Also underway is the Human Brain Project, a European-funded research project to recreate a human brain by 2024 with a supercomputer.
The so-called well-known “Troley problem” demonstrates the existence of the highest moral and ethical issues involved in the impossibility of absolute automation of justice, since this without the presence of the human element has already become something else. The US MIT Media Lab studying such issues has developed the Moral
Machine, a platform for collecting data on moral decisions by humans (moralmachine.mmit.edu). An article published in the journal Nature brings some results of such research, highlighting the conclusion that in countries with high degree of economic inequality there is a tendency to treat people very unequally according to their social status.
Law depends for its evolution and reconstruction “in fieri” of “poiesis”, being such a striking feature of human beings as biological beings, depends on the creativity and sensitivity of those who relate to the Law. Therefore, Law, despite the predominance of its understanding and application of a Cartesian, technical form, limited to being conceived only as technical science, is increasingly moving away from poiesis, poetics, sensibility, creation, which is currently occurring. For the most part, just an eternal repetition of the same, “ad nauseam”, nothing is created, and everything is copied, especially in the legal universe, we are becoming less and less aware of the law. The use of automated language and the application of artificial intelligence in law is increasingly being used without sufficiently analyzing the impacts and possibly harmful consequences mentioned above.
Do we enter the era of autoimmunity and parasitism in law (to say with Luhmann in comparison with Serres, Derrida, Esposito and others)?
DEVELOPMENT – EPISTEMOLOGICAL ASSUMPTIONS
This aims to analyze the relationship between Communication and Semiotics, Law, and Artificial Intelligence, postulating for interdisciplinarity and the use of an inclusive research methodology, fertilizing the various fields of knowledge.
Considering Law as Science, such a form of decision making by artificial intelligence seems to us to be a kind of return to the understanding that the sciences, based on the observation of regularities in the occurrence of facts, allowing for the elaboration of general mechanistic laws that explain reality. However, one should be aware that such facts were cut from reality as a whole so as to give them an analytical treatment, but limited and reduced to a particular spatiotemporal location.
It is a type of application proper to mechanistic-Newtonian physics, now surpassed by quantum and relativistic physics, to demonstrate the fragility of its theoretical construction and application, using observations obtained on a limited scale, as observed in the use of a database built by god knows who, in the construction of a legal decision through artificial intelligence, especially in the field of law, disregarding the fact that law and the sciences in general come from a history.
Still other problems are observed: artificial intelligence, for not having a conscience and a soul, having no possibility of marveling and haunting, limited to an odorless, inorganic and mechanistic perspective of life, contrary to typical actions. Would human beings be indicated and able to make decisions that involve not only the rational side of intelligence, but above all the imaginary, the imaginal (Henry Corbin), sensitivity, emotions and intuitions?
MIT Lab’s Affective Computing group (https://www.media.mit.edu/groups/affective-computing/projects/) aims to bridge the gap between human emotions and computer technology. Such research involves machine recognition and modeling of human emotional expression, and among its goals is to enable robots and computers to receive natural emotional feedback and improve human experiences.
Following Husserl’s studies and his doctrine of the concept, he differentiates two types of possible representations: his own direct representation of an object would only be achieved by intuition, while the concept would merely provide an improper representation, symbolic or through symbols, always having an intentional character.
To intend is to tend through contents given to consciousness to other contents that are not given. The issue of the production of “knowledge” through artificial intelligence embodied in judicial decisions produced by algorithms, in a form of calculation, brings the problematic of the dangerous alienation in the technique also worked by Husserl, since there is the construction of a symbolic universe from the evidence of sensitive intuition, which is impossible to be produced by a machine. In this sense, the understanding of Hermetes Reis de Araújo (“Presentation, in: Technoscience and Culture. Essays on the present time”, São Paulo: Liberdade Station, 1998, p. 12) deserves attention: “the mathematization of science is not only the substitution of one speech for another. It characterizes precisely the end of language (discursive, of logos), as a privileged mode of reflection by which man tells the truth.
The “logos” as a distinguishing feature of the human being, as more than just a political animal, but a being of language, has the word, which differs from it because other animals that would also be political, man is more than a “zoon politikon” ”By nature, in Aristotle’s words: That man is a political animal more so than a bee or any other animal living in a gregarious state is evident. Nature, as we say, does nothing in vain, and only man among all animals has the spoken word. Thus, while the voice serves only to indicate pleasure or suffering, and in this sense belongs equally to other animals (…) speech serves to express the useful and the harmful, and therefore also the just and the unjust; for it is man’s own before other animals to possess the character of being alone in having the feeling
of good and evil, the just and the unjust, and other moral notions, and it is the community of these feelings that produces the family and the city. (Aristote, 1982, I, 2, 1253a, 7-12).
In a congruent sense Steiner’s (1990) understanding: (…) the uniqueness of language is crucial (..) it leads us to the decisive recognition that language and man are correlates, that each other implies and is needed. (..) the man is a zoon phonanta, an animal with language.
There is a relationship between law and religion, since both are beliefs and founded on dogmas, there is a dogmatic structure of thought, and between science and religion, as well as between law and science.
In this sense, Foucault states that the origin of the scientific probative procedure lies in the process of the medieval Catholic inquisition, governed by canon law.
Hence there is every kind of science, whether empirical or formal, be it natural or human, subsumed under, according to Piaget, in the category of “Law Sciences”, encompassing cybernetics (cf. Jean Piaget, Psychology and Epistemology. For a Theory of Knowledge, 2nd ed., Translation Agnes Cretella, Rio de Janeiro: University Forensics, 1978, pp. 133 ff.
It is essential, therefore, for Christianity to have the notion of the subject of modern science, so it is stated that the “Christianization of science” occurs; the Christianization that produces modern science, because it produces the modern subject, which is the subject of science and law. The former lives in objectivity, and has no direct access to knowledge. Objectivity attained by the subject of knowledge, postulated by Science, who refuses to access knowledge, but which comes through the subject. The subject is the subject of knowledge. To gain access to knowledge and the power to dominate things and to influence the course of the universe, you have to adopt a posture that is no longer the classical, ancient or medieval objective, that there is a meaningful objective order with a final cause , the ultimate cause, which only God knows. We can only know the how, the efficient cause. The efficient cause that remains only unique in modernity is a formalism, and such a rupture separates causes.
However, now is the end of the senses, with the atomic bomb, aspect of the Death of God. Before there was a sense in the ancients. Loss of the unity of meaning, Nietzsche’s nihilism. Paul Virilio speaks of dromology, or logic of speed, related to the exponential increase of speed by the acceleration of time, coupled with the triumph of technology, turning man into a motionless and unresponsive being, receiving everything automatically, passively and without question, for most of the time and for most people. (Virilio, CAPP, 2000: 72).
The characteristics of this type of form of “knowledge” common in science, using signs in the mathematical calculations used, are typical of our information society where more and more information is produced and in an inversely proportional relationship, less and less reflective knowledge, as these would be antagonistic. There is a perfection of a purely technical rationality, empty, according to Husserl, without the production of
knowing any cognitive content (Doctoral Thesis in Communication and Semiotics. Willis
S. Guerra Filho).
Mainly from Newton, the standard of science that will disqualify as science what until then was not much of a difference in terms of science. Such a process actually begins from chemistry in the eighteenth century, as Isabelle Stengers (“The Invention of Science”) rightly reports. Hence in alchemy, because it is not chemistry, there is no separation between the subject and the object of study, knowledge, and appropriation of discoveries by the market and industry. The Subject is involved in his own transformation in his studies, typical conclusion of alchemy, and the philosopher’s stone sought would be his own personal transformation during such a process. There was no distinction, therefore, until the emergence of chemistry between the hermetic and alchemical sciences. In conclusion, in past times the goal of science was not an economic, utilitarian goal as it transforms itself after Newton, who very consciously tyrannically and inclemently served as the head of the mint in England and presided over the Royal Society before that in the same fashion.
IT and artificial intelligence use algorithms to produce judicial decisions that are based on mathematics, that is, on symbolic logic, different from Aristotelian logic.
Artificial intelligence is a symbolism, an abstract thought. From the point of view of formalism there is not so much difference between law and mathematics, as both are formalisms, numbers and norms, both of which can generate formulas. From the moment we consider formalism as a reductionist way of looking at the reality of law, one wonders whether quantum physics, because it is based on mathematics and post-Newtonian physics, would be capable of a holistic and in-depth understanding of the legal phenomenon.
There is a fracture, with the division of the cultures of the sciences and the humanities, promoting a dehumanization of the natural and mathematical sciences and also an atrophy on the humanities side of a kind of logical-mathematical reasoning that could greatly contribute.
There is a double atrophy, therefore. Promoting what is already called in the 1930 by Husserl in his book on the “Crisis of European Civilization”, of the European arrays, ie, the Western way of studying reality, intervening in this reality, differently from what was postulated by alchemy, before the transformation of science into something utilitarian. Husserl, thus, anticipating even conclusions from his student Heidegger, points to the grave civilizational problem at the heart of mathematical thinking, having catastrophic effects from the political and social point of view, as clearly appeared at the time as World War One. This is because science, by using the mathematical logic and symbolism and abstraction typical of mathematics, is detached from what it called Lebenswelt, world of life, or world lived in, that is, of worldly living, and therefore of us human beings. We humans think of time in a linear way, as if history were a continuum, bringing a certain inertia to thought and society, because it is linked to the concept and idea of progress. That is, science is regarded as the knowledge most capable of generating such progress, because science progresses itself and would always bring improvement, forgetting, however, that it also promotes various steps back and problems.
The development of machines, to the point of already proposing a robot judge and artificial intelligence for making judicial decisions, involves a bet on such progress, without considering that it is a bet and not a certainty. Such knowledge, coming from modern science, as it detaches itself from the world of life, from the true soil that would justify the whole construction of knowledge, ends up becoming an alienated knowledge, foreign to its creator, which Husserl calls “technical alienation”.
This is what is called science as religion, a scientific religion, taking on as truth the phases of the development of reality, as is the thought and epistemological proposal of A. Comte, in his positive philosophy. In this sense, for him, the third phase, the scientific phase is considered the final step, corresponding to the idea of progress.
With Newton one goes on to the conception of man as a calculator, as denoted by his law of mechanical physics, action, and reaction. The notion of man as a calculator is not modern, having its roots in the so-called “calculators” of Merton College in the fourteenth century, seeking the renewal or purification of Aristotle’s thought (in which there was similarity with Euclidean deduction), coinciding in such an epoch with the introduction of the mathematical method in the study of physics. The most representative names of the time are Thomas Bradwardino, initiator of the Mertonian group, influenced by Oxford’s empiricism and G. Ockham’s nominalism, William Heytesburry, John Dumbleton and Richard Swineshead, the latter called by the very name “calculator.”Calculators, therefore, promoted mathematization, being a possible antecedent of science that emerges in the seventeenth century.
Modernity is an ideology that overestimates scientific knowledge and devalues others. But what are the criteria for qualifying knowledge that makes it scientifically produced or innovative, in the sense that the good is that which is new, that is, modern?
Giving up history is the scientific model of knowledge, based on the myth of progress, constitutive of the ideology of modernity. The understanding based on such an ideology that science has to be objective corresponds to a myth, because we never cease to be subjects, being impossible therefore an absolute objectivity. These are beliefs in absolutes that do not differ from other beliefs that believe in absolutes, such as God’s omnipotence. Science however has history and is historical.
The theological (absolutist and monotheistic) assumptions of modern science are set aside so that modern science itself may emerge and go beyond, relativistic physics being an example. After surpassing modern classical physics – Newton, which referred to an absolute god, brings these theological remnants in physics – monotheists – theists – different from contemporary physics.
Modern physics and the mathematical conception of the world, however, have a limited validity and are relative, although taken as absolute truths, since part of some assumptions, and these too have limitations in ridding themselves of other assumption creates new assumptions.
With Einstein and quantum physics new methods for science are produced, a paradigm revolution, a scientific revolution. In Einstein’s words, however, we see the priority of intuition over logic, as emphasized by Humberto Rohden, understanding that there is in Einstein a close proximity between mathematics, metaphysics and mystique, considering Einstein as a great mystic. Verbis: “There is no logical way to discover elementary laws – the only way is that of intuition” (“Einsein, the riddle of mathematics.
Humberto Rohden. Editora Alvorada, p. 01). On the other hand, contemporary quantum physics will at the same time bring us into other forms of spirituality, much akin to Indian and Chinese, moving closer to esotericism and the mystical. As a negative point we highlight as a species, the belief in a science of a belief in disbelief. A kind of fundamentalism in science. It creates a kind of allergy, and makes the human even more defenseless and fragile, with the individualistic and defensive posture.
We must then promote the reconciliation of science and religion in the pursuit of more convergence than differences. Artificial intelligence, in its attempt to replace human rationality and human logos in making judgments with force of res judicata, would not have human physis intertwined with it, nor would human corporeality. How then would such substitution be possible that does not correspond to the same logic, however artificial intelligence based on humancreated algorithms may be?
Husserl understands that only Greek philosophy leads, through its own development, to a science in the form of infinite theories, within which Greek geometry was an example and model, being the very origin of philosophy in the “thaumátzein”, according to Plato and Aristotle, establishing among the Greeks such an attitude towards the surrounding world of a purely theoretical interest.
The European crisis would be due to an aberration of rationalism, such an aberration already occurring during the Enlightenment period, although an understandable aberration. Such aberration and crisis is revealed by forgetting what is most proper and human, the world of life, the intuitive surrounding world, the merely subjective factor, and thus forgetting the acting subject himself in the obfuscation of the pursuit of objectivity.
Husserl intends to achieve with his proposal, beyond the return to the same things, and the combat to the alienating concepts and the crisis of the science and the humanity, and the sense, an intimate relation between the beings that are in each other and for each other.
Husserl concludes that the failure of a rational culture lies not in the essence of rationalism itself, but only in its alienation, in the fact that it is absorbed into naturalism and objectivism.
Greek philosophy after being placed as a servant of Christian theology, combining it with the power of the Roman empire by becoming the official religion, and founding itself as an ecclesiastical policy, ideologically forges modernity as well as produces the legal model (the State) and modern economy (capitalism).
Husserl’s philosophy will point to the failure of the sciences, his KRISIS, to move away from precisely the mathematization of the world of life, of life itself, criticizing above all objectivism, or the claim that “the truth of the world lies only in what it is enunciable in the propositional system of objective science ”(Ibid., p. 27 ff.).
In his book “Logical Investigations”, he proposes the contact and return of the philosopher to original intuition as the source of true knowledge. It points out as a cause of the crisis of the sciences that also reveals itself as a crisis of contemporary culture, a crisis of meaning, a crisis of philosophy and of European humanity, the modern mathematization of the sciences, pointing to the rupture between physicalist objectivism and transcendental subjectivism, criticizing the scientific objectivism. Such a crisis is revealed in man’s failure to understand, and in understanding that “the truth of the world lies only in what is enunciable in the system of propositions of objective science, in objectivism.”
According to Husserl, the telos of philosophy in its Greek origin, of wanting to be a humanity from philosophical reason, was lost with the development of the sciences, promoting forgetfulness and tragic detachment from the world of life.
Modern sciences, based on a world view in which objectivism, mathematization, quantification, formalization, technification, predominate, is a mutilated or partial world, promoting an impoverishment and a reduction of reality, of being and rationality from the world of life, filled with immediate subjective experiences, endowed with meaning and purpose in itself. As a consequence we have the forgetfulness of the subject and his role in the world, and the loss of the ethical dimension, since the objectivist mathematical scientific method does not take a position on what should be in the world.
For Husserl, only the return to transcendental subjectivity can recover the meaning of humanism and overcome the objectivist deviation, and philosophy should once againcbe interested in man and his cultural creations, society and his system of values, distancing himself from scientific formalism. , and with that approaching the world of life again.
Husserl, in mentioning that the recovery of the transcendental instance to overcome such crisis is indispensable, would it be a kind of alchemy, of selftransformation? The phoenix of a new interiority of life and spiritualization as a guaranteeof a great and lasting human future. We must then promote the reconciliation of science and religion in the pursuit of more convergence than differences.