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Arguments for and against providing Legal Personality to AI Systems

Following are mainly the problems revolving around conferring AI systems with legal personality:
It is of prime importance to any legal system because it leads to ascertaining as to who is capable of acting, who can be bestowed with rights and duties and thus in this manner, precursor to almost every other issue.

There must be someone in order to be blamed in case things go wrong. There should be someone who can be sued or having capabilities to enter into contract etc. In order to deal with liability related issues like automated driving system entity whose behavior may not be under control of its owner or manufacturer.

There must be someone for purpose of rewarding when things go right like who would own the intellectual property they create independently.

There could be 2 forms of legal personality:
Natural:Their recognition is guaranteed owing to fact of them being human. There is a notion in legal parlance that AI could equal humans and that's why a legal personality as a natural person should be conferred upon them. How the legal system shall be, whether it should constrain behavior or how it shall shape the said behaviour for now and when it surpasses humanity for example. Is the comparison with humans of these AI systems appropriate?

Juridical persons which are non-human entities in their nature and rights and duties to them are bestowed by virtue of law. Corporations for instance is its example but other non business entities like religious ones in India can be its other examples. The question to be addressed is whether assigning a juridical personality would as a result fill the gaps or prove to be advantageous insofar as legal system is concerned. Another question is if for instance, some form of legal personality gets assigned, what content it would have.

Arguments In Favor And Against Conferring Legal Personality To AI Systems
As mentioned above, there can be two categories into which an entity could be placed into i.e. either Juridical or Natural personality. This section is categorized into those categories with the former one dealing with theories that are there concerned to it for justification as to its conferment and then if at all there arise need to put AI system into that category, what will be content of it is next sub-heading with feasibility of same ascertained with arguments for and against the same. Later part deals with Natural personality.
  1. Juridical Personality
    Define of this is given in intro section. Arguments are generally in relation to nature of liability issue in case as driver-less car or for trial of criminal robot etc. One needs to delve into various theories in this direction and whether justifications given for conferring personality upon corporations could be extended to AI systems too. Several Theories purported to be in favor are as follows:
    • First theory is the aggregate theory or also known as symbolist theory. It states that corporation is kind of device formulated by legal system to allow natural persons in organizing themselves in a group form in order for reflecting them in terms of their legal relations with other parties.
       
    • Then comes the fiction and the theory of concession, both have separate origins but ultimately points towards one notion: personality is conferred upon corporations because a legal system desired to do so. There can be various reasons to do so, like for encouragement of entrepreneurship or to enhance stability as to the legal system etc. Therefore, in this manner, the practice of legislation or judiciary for that matter in recognizing personality can be well encompassed and extended to AI systems as well.
       
    • The realist theory on contrast holds that corporations are neither fictions nor just symbols but rather real entities which are preceded by personality conferment by law. There may be members but their independent actions can be well attributed to them. Theorists and sociologists tend to regard them as moral persons too and not just legal. This is in relation to idea that personality is not just granted but rather deserved. AI systems in the same way deserve to be recognized as a person.
    Counter arguments against those theories are as follows:
    The theory discussed above namely the aggregate theory has been criticized by scholars for its applicability to corporations. For it too be argued that it should be extended to AI systems for same reasons would be an under-statement as it is least applicable to the AI systems.

    The argument that such entities are not just personality owing to the fact of them being contemplated by law and are also moral persons and that personality is not just bestowed but deserved is ill-informed in the sense that ultimately, the term 'person' will stipulate what the law would desire it to stipulate. In end, its gift of the State insofar as recognition before law is concerned.

    The question as to granting personality is not binary in nature but rather of spectrum nature. Even if it should be granted personality, the grant would ultimately depend and be guided by rights and duties that would be purported to be recognized when States would go in direction of making the decision.
     
  2. Content of Legal Personality
    Recognition as a person before law need not be same for all. Same goes with rights and obligations that are bestowed. Even in case of natural persons, this is self reflective from struggles in direction of equal women rights or for that matter the other marginalized members of society. Therefore, there could be rights without obligations like when personhood to nature was granted by Ecuador. Same way, AI can be granted personality where there would be only obligations.

    Obligations would come into picture in order to address the accountability gaps. In case of civil liability, the end result is awarding of damages which is in turn depending upon if wrongdoer is capable of owning property or not. There may be plausible way out to this like a central fund similar to the regime of compulsory insurance for addressing the liability question. But in that scenario, conferring personality would merely be a formality.

    So, it becomes important to delve into what shall be the content if such kind of legal personality is conferred in various areas of law and dealt with below:
    In Private law
    For: As rightly acknowledged by European Parliament, ability to be sued is one primal attraction when it comes to conferring personality to AI systems. The rationale behind is filling accountability gaps.

    Against: Situation may arise where the people that currently are bestowed with responsibility would attempt to do away with that by virtue of escaping from their liability and shifting same on electronic persons. This is applicable to corporations too where attempt is made to shield the investors etc. from liability beyond a said amount of sum and it is justified in lieu of encouraging investment and entrepreneurship etc. even though there are safeguards formulated to abuse its form.

    Similar kind of mechanism could be employed in case of AI systems where the said system could be manipulated to protect another person from liability. The question that arises is that if the person in the first place is able to do that with a system, does that system indeed worthy of granting separate personhood?

    For: Entering into contracts is another argument, and taking debt and owning property are its facets. What about accumulation of wealth on part of such systems? How would they be taxed etc. are some questions put forth in favor of granting personality.

    Against: Usage of electronic agents is not new when it comes to concluding binding agreements like in case of high frequency trading where it relies on algorithms concluding agreements with algorithms to conclude agreements on behalf of natural persons. Autonomy of AI systems could be a challenge to this in case something goes wrong, but it is resolvable without discourse to a new legal framework.

    As far as taxation is concerned, taxation of robots has been suggested to be a measure and Bill Gates has suggested that companies that own them should be taxed but there have been counter arguments saying that it would lead to negative impact on competition. In future, if need arises, regressive taxing system on profits can be followed just like the scenario of a company abusing its market position. Hence, not enough for granting them personality. What if a head of a company created limited liability company adds an AI system as member and then resigns, such loopholes might be resorted to by natural persons.

    In Criminal Law
    For: The ability to be punished is one important argument put-forth in favor of personality to be assigned to systems.

    Against: The rationale behind criminal punishment is retribution, incapacitation, deterrence, and rehabilitation. For instance, in incapacitation, it includes exile, amputation etc. and from point of view of corporations, withdrawing the license or winding up orders. Analogy is made with mad dog or a faulty vehicle that needs to be decommissioned. But it is more in nature of administrative than penal and depends on whether guilt can be determined.

    Minors or mentally ill considered to be incapacitated can also be detained if they are deemed danger to themselves or community and thus, do not loose their personality. Same goes with AI. Measures can be taken like license revocation etc. without giving personality.

    For: Rehabilitation mechanism of punishment which seeks to influence decision to offend rather than the ability to do so is well suited when it comes to AI systems with idea that contravention of criminal law to be dealt with by debugging errors rather than the sins to be penalised.

    Against: Legal personality or for that matter, the coercive powers of State are not at all required in order to make sure that AI systems or Machine Learning do not lead to such outputs capable of rendering violation of criminal law.
     
  3. Natural Personality
    The mere fact that one gets born makes him entitled to be person before law. Although, it was not always like this and there has been history of slaves being bought and sold like property, or indigenous persons were made comparison with animals roaming the land etc. Today, anyone who is adult, of sound mind is regarded as having certain rights and obligations.
     
For: It is argued that since AI systems are quickly approaching human related qualities, that would suffice for them to be recognized before law.

Against: That this is the phenomena of anthropomorphizing AI systems and some have also formulated a term for it viz. 'android fallacy'. There have been plenty of experiments showing that people tend to ascribe human qualities post their experience with humanoid machines like the moral sensibility.

In 2017, European Parliament resolution lead to AI experts across the world to tender an open letter saying that conferring legal personality to them would be not apt from perspective of ethics and law. But that argument was on basis that if such status is granted, it would bring with it all human rights which are guaranteed under the EU law. This basis itself is reflective of 'android fallacy'. Another argument against is that in form of 'speciesism' where it is considered that privilege to human welfare shall be regarded at above level than that of robots.

For: That rights should be granted to such systems if not because of instrumental reasons like that in case of corporation, then for the inherent reasons like they should be in position to own what they create. Some even resort to making analogy with darkest history of slavery to support this idea.

Against: The justifications given for making comparison with slavery are of instrumental nature rather than the inherent reasons to begin with. Moreover, reliance made upon laws that have been long discarded is not justified. An alternative can be regarding treatment of animals. They can be bought and sold but capable of being treated humane.

There was a New York State Court case where chimpanzees were denied personality rights since they cannot be bestowed with duties and fails on premise of social contract theory. But the fact is, even though they cannot be regarded as person but at the same time, cannot be regarded as a 'thing' merely. Scholars have argued that animals being more close to humans as compared with AI systems have not been given personhood even though emotionality aspect is under consideration during that discussion. There are animal abuse laws and one day there will be some to protect social robots as well on same line of rational, but whether they will merely meet social standards rather than biological and technological ones is the question to be addressed.

For: If a human being can be granted ownership for work done by him, why not AI systems as today, they write reports, compose songs etc. and are worthy of attracting provisions of copyright law.

Against: The object behind copyright policy is to incentivise innovation. Generally, there is creative input or intervening on part of human which leads to result that come out by AI systems. Those cannot be conferred upon system. But the increasing work of independent nature of AI without human intervention will make things tough for humans to take credit in long run. In 2020, European Parliament regarded such works as equivalent to intellectual works in a draft report but did not felt to make it capable of giving personality of any ind. But in the end, the human creativity has to be regarded upside that of machine one in same manner as the kind of 'specieism' that was mentioned earlier.

Conclusion
Most arguments which are in favor of conferring personality to AI systems are either way too simple or way too complex. There could not be as of now plausible category into which the personality could be accommodated to the AI systems. Argument that the explanations for recognition corporations as a juridical persons from perspective of various theories like symbolist theory, realist theory etc. could be extended to AI systems too fell short on various grounds.

When one delves into arguments such as need to fill accountability gaps or there is need for someone to be held liable or so, it was important to ascertain what might the structure and content of that personality would be. Like for private law, granting personality could pave way for existing natural persons to escape liability by shifting blame on AI systems by way of manipulating the same.

From regards of imposing damages upon a system, the mechanism such as that akin to central fund similar to insurance kind regime could be incorporated as owning property would be requisite for same. That could be done without granting personality to AI systems. Similar is the situation as far as necessity of entering into contracts argument is concerned, the utilization of electronic devices for concluding agreements is not new concept as discussed above and grievances pertaining to it can be resolved without recognition of them as a separate new legal entity.

From criminal aspect, legal system can take discourse to existing methods such as revoking the license or rollback a product to incapacitate the same in order to prevent further offences and likewise, as discussed in above sections, there is no need to recognize them as legal personality or use coercive powers of state to prevent Machine Learning from committing criminal offences.

Then come arguments which are too indulged into future possibilities and speculations as opposed to resolving current problems and in that pursuit make unstated assumptions or suffer from the concept of android fallacy as discussed above in Natural persons section. For present problems, it would be feasible to stick to shifting responsibilities of wrongdoing to the users, owners or manufacturers in place of AI systems themselves and there is no need to forcefully fit systems into a category on basis of ill-informed assumptions or future developments till the time these problems that arise can be resolved through existing legal mechanism.

References:
  • Simon Chesterman, Artificial Intelligence And The Limits Of Legal Personality, 69 International and Comparative Law Quarterly, 819844 (2020).
  • J Dewey, The Historic Background of Corporate Legal Personality, 35 YALE LJ 660(1926).
  • G Hallevy, Liability for Crimes Involving Artificial Intelligence Systems (Springer 2015)
  • Y Hu, Robot Criminals, 52 University Of Michigan Journal Of Law Reform 487(2019
  • SM Watson, The Corporate Legal Person, 19 JCLS 137 (2019).
  • DA Crane, KD Logue and BC Pilz, A Survey of Legal Issues Arising from the Deployment of Autonomous and Connected Vehicles, 23 Michigan Telecommunications And Technology Law Review 2569(2017).
  • S Bayern, The Implications of Modern Business-Entity Law for the Regulation of Autonomous Systems, 19 Stanford Technology Law Review 101(2015).
  • C Mulligan, Revenge Against Robots, 69 SCLRev 579(2018).

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