LTAAA Symposium: Response to Pagallo on Legal Personhood

Ugo Pagallo, with whom I had a very useful email exchange a few months ago, has written a very useful response to A Legal Theory for Autonomous Artificial Agents.  I find it useful because I think in each of his four allegedly critical points, we are in greater agreement than Ugo imagines.
(Incidentally, I am happy to note that Ugo found our applications of agency doctrine plausible in his points A1 and A2). These responses below are variations on themes that I explored in my earlier post on legal personhood (and indeed in my response to Deborah DeMott), where I hope I made clear that given how the law treats the notion of a legal person, and given the functional role of that notion, there were no conceptual barriers to the personhood of artificial agents.

Now, I would like to consider each of his four critical points in turn.

  1. We are actually in agreement with Ugo here. In Chapter 2 in noting the objection, especially as made in the Third Restatement of Agency, that “artificial agents necessarily lack legal power to act as agents because they are not persons” we note that “we can coherently postulate changes to the law, whether in the form of statutory reform or judicial precedents, that renounce the necessity for agents to be legal persons and enable the adoption of the agency law approach to artificial agents that are not persons.”
  2. Again, we agree that artificial agents are far from “from achieving a human-like endowment of free will, autonomy, and moral sense” and that they are endowed with self-knowledge and autonomy “in the engineering meaning of these words” (EURON 2007).” And as my response to Surden might have indicated, I think the “engineering meaning” and “human-like endowments” can be brought closer.
  3. I think Ugo misunderstands us our doctrinal strategy here. We advance legal agency without personality as a solution that could and should be immediately adopted. We note, however, that legal personality might work even better for reasons of doctrinal coherence. But we also admit that doctrinal coherence might not be a strong enough motivation for adopting that solution. And our remark on page 27 that Ugo cites is actually directed at conceptual arguments against the notion of AA’s legal persons; we are willing to admit that pragmatic arguments currently are the best ones against any change in their legal status.
  4. Again, we agree with Ugo that by the time comes for sufficiently sophisticated AAs to be legal persons, “the meaning of traditional notions such as contracts, torts, or constitutional rights, will change.” Many legal categories will have changed too. Of the three options that Ugo presents us for the philosophical orientations of AAA lawyers, we think they will be driven largely by legal realist considerations “so that norms depend on how AAAs affect human understanding of the world, their own knowledge and environment.” More generally, when the technology has changed enough to endow them with sophisticated enough capacities, our understanding of ourselves will have changed considerably in turn, and this will significantly impact our understanding of their place in the law, and of the “substantive mechanisms of a new artificial order”

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