Washburn Law Review "Artificial Rights" Symposium on artificial intelligence and legal rights

1. ARTIFICIAL RIGHTS AND VIRTUE
Prof. David W. Opderbeck
Seton Hall University Law School

2. LOCATING RIGHTS: MODERN THEORIES
• Social Contract (e.g., Hobbes, Locke, Rousseau) – based on
theories of human nature and related origin stories
• Will (e.g., Kant): human rights and related duties are justified by
the human capacity for freedom (autonomy and agency)
• Interests (e.g., Bentham): human rights secure what is necessary
for a human being to lead a minimally good life

3. Deontological Consequentialist Contractual
Status-Based Instrumental Rational Choice

4. LOCATING “ARTIFICIAL” RIGHTS
• Some discussions of AI rights fail to distinguish weak and strong AI
• Most discussions of AI rights relate to broader questions about human nature and metaphysics that are not
well explored
• “[T]he intuitive understanding behind this objection is, as David Hume recognized, a rejection of the naturalistic
worldview in relation to humans, for the same objections might be made to free will for humans, governed as we
are by natural laws.” (Chopra, Samir, and White, A Legal Theory for Autonomous Artificial Agents (Univ. Mich.
Press 2011), 176).
• “[First Amendment] speaker autonomy arguments must identify intrinsic qualities of moral personhood that are
unique to humans. As AI advances, the gap between machines and humans may narrow in ways that weaken this
uniqueness claim. . . . [M]ore fundamentally, insisting that humans alone possess intrinsic qualities of moral
personhood does not prove that those qualities should matter for purposes of conferring free speech rights.”
(Massaro, Norton, and Kaminski, Siri-Ously 2:0: What Artificial Intelligence Reveals About the First Amendment,
101 Minn. L. Rev. 2481, 2497 (2017)).
• Deontological, Consequentialist, and Contractual theories are flummoxed by AI “rights”: “Whose Rules?
Which Consequences?” (apologies to Alasdair MacIntyre)

5. Deontological Consequentialist Contractual
Status-Based Instrumental Rational Choice
Should the AI system be
accorded a status that
comes with legal rights?
Does the provision of legal
rights to the AI system
maximize utility?
Is the AI system capable of
making “rational” choices
about contract-like social
relations?

6. RESPONSIBLE AI PRINCIPLES
• Discussions about AI “rights” conflict with responsible AI principles
• E.g., Asilomar AI Principles (Future of Life Institute 2017)
• 10) Value Alignment: Highly autonomous AI systems should be designed
so that their goals and behaviors can be assured to align with human
values throughout their operation.
• 11) Human Values: AI systems should be designed and operated so as to
be compatible with ideals of human dignity, rights, freedoms, and cultural
diversity.
• 16) Human Control: Humans should choose how and whether to delegate
decisions to AI systems, to accomplish human-chosen objectives.

7. LOCATING RIGHTS: RETRIEVAL OF
VIRTUE ETHICS FOR JURISPRUDENCE
•Virtue Jurisprudence: law supports the cultivation of
virtues that are essential to human flourishing
• Teleological
• Principle driven rather than rule-driven
•Communitarian

8. LOCATING RIGHTS: RETRIEVAL OF
VIRTUE ETHICS FOR JURISPRUDENCE
• Related to a broader movement in analytic philosophy: “A recent revival in
(neo-) Aristotelian philosophy is beginning to transform the landscape of
contemporary analytic philosophy.” (Koons, Simpson, and Teh, in Neo-
Aristotelian Perspectives on Contemporary Science (Routledge 2018))
• Potentiality / causal powers ontology
• Teleology
• Layered structure to reality
• Fundamental substances or powers
• Plurality of entities: avoids reductionism
• Substances belong to recurring natural kinds
• Rejects “extreme realism” (Platonism)

9. Deontological Consequentialist Contractual Aretaic
Status-Based Instrumental Rational Choice
Essentialist and
Teleological
Should the AI system be
accorded a status that
comes with legal rights?
Does the provision of
legal rights to the AI
system maximize utility?
Is the AI system capable
of making “rational”
choices about contract-
like social relations?
• Does locating a right
in an AI system
promote virtues that
support human
flourishing?
• Does the AI system
possess a nature that
can be cultivated?
Analogy to corporate law:
• Some corporate rights – rights of speech – create conundrums (e.g.
Citizens United; Hobby Lobby)
• A theory of corporate rights requires a theory of the firm
• Coasian, management/behavioral, contract, and other theories of the
firm view firms as centers of human activity
• No theory of the firm imagines firms existing apart from human agency
• The analogy to rights of corporations only holds if it can similarly be
shown that vesting a right in an AI system would benefit the humans by
and for whom the AI system was created
Applied to IP Law:
• The “incentive” rationale for IPRs is impossible to establish empirically
• Other “development” and “flourishing” rationales for IPRs focus more on
how limits on access to technology and culture, and cultural appropriation,
may harm human flourishing
• A virtue perspective on AI and IPRs would raise familiar questions about
fairness, transparency, and accountability
Applied to First Amendment Law:
• First Amendment discourse tends to focus on consequentialist (value to
self-governance; limiting governmental power) and deontological
(autonomy) rationales
• A virtue perspective would ask about the inherent dignity of the speaker as
a human being and the promotion of speech that cultivates virtue (a
tension)
• Weak AI has the nature of a “tool” and the virtue question is about the
excellence of the tool and the ways in which humans might wield it
• Strong AI: would it, could it, have a nature analogous to a human person?

10. Thank you!