Vessels, AI & Legal Personhood - When the Sets of Facts are Not Analogous in the Abstract but ...
Abstract
The ‘killer robot’ myth of an inanimate object turning on its creator is virtually millennia old. But only recently have rapid advances in technology moved this into the realms of possibility and transformed our interpretation of intelligence. Artificial intelligence (AI) reaches a stage where human control is not necessary, or indeed possible. Examples include drones also known as unmanned aircraft systems up to 55lbs/25Kg (UAS). Consequent legal questions arise, such as who or what is responsible for the autonomous actions of this entities? Does the growing unpredictability of drones subject them to legal control as any other legal entity? A pervasive prospect is the granting of legal personhood to this actor. Although his may sound far-fetched, there are already comparisons where personhood is ascribed to inanimate objects such as vessels in the United States admiralty law. Therefore it is not inconceivable to accord legal personhood to drones. To add to the existing literature, in this study the author focus is on arguing by analogy in law, the way in which decision makers could argue in favour of granting legal personhood to drones by analogizing it to precedent cases of vessels. A key outcome would be that in dealing with encounters with drones their personification could resolve difficulties inherent in the current legal system.
Keywords: legal personhood, vessel, drones, stare decisis, reasoning by analogy
Introduction
Not the least meritorious feature of the Unites State admiralty law has been its grant of legal capacity of legal personhood to a vessel. It has been suggested that this particular doctrine of the Unites State admiralty law provides it a required solution when confronted by liability issues arising from the independent actions of a vessel. This note attempts to provide an opportunity for readers to consider the impact of vessels understood as ‘watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water’ and drones, also known as unmanned aircraft systems up to 55lbs/25Kg (UAS),[1] on the legal world, especially in relation to legal liability implications. First, the author theorises that those who argue for relevance of metaphysical characteristic when considering the grant of legal personhood to an inanimate entity have not been applying the doctrine correctly and she suggests to divorce the concept of metaphysical characteristics for the doctrine of legal personhood. Second, the mere fact that an inanimate entity, rather than a human being, is named as adversary to the plaintiff and that the human beings, really interested, are cited as its owners, rather than as ‘defendants’ breeds many questions in legal theory, but is in itself unimportant because of the doctrine of stare decisis - the law of precedents. Third, the sets of facts with regards to drones and vessels are not analogous in the abstract, but in the context of a legal issue. Following an analogy in this legal reasoning, which rests on there being some common characteristics of vessels and drones understood as autonomous and inanimate entities this study argues for the application of analogues instruments such as legal personhood to govern the actions of both.
The Doctrine of Legal Personhood of a Vessel
Dewey defines legal personhood as ‘the right-and-duty bearing unity, or subject, [that] signifies whatever has consequences of a specific kind.’ He continues ‘[t]he reason that molecules and trees are not juridical ‘subject’ is then clear; they do not display the specified consequences. The definition of a legal subject is thus a legitimate, and quite conceivable a practically important matter. But it is a matter of analysis of facts, not of search for inhering essence.’ According to this definition, a legal person is nothing more or less than a legal subject that bears specific set of rights and duties. It establishes further that the entity to be recognised, as one, should evoke negative consequences with regards to its actions. The grant of legal personhood was, in the early nineteen century, necessary to insure to that at first so frail structure, like a vessel, to withstand the absolute power of the unpredictable on navigable water. When damage or harm resulted from a vessel, the ship’s captain and/or the crew were free from liability concerns.
Some scholars theorize that legal personhood was assigned to a vessel when dealing with the master (also called captain or a ship's captain)[2] and fellow members of a ship's crew, repeatedly passing legal responsibility on to the ship owners who were maintaining they had no knowledge of the illegal activity carried out by the ship’s captain and/or the crew. Whatever, be its true reason, the origin of the concept of legal personhood of a vessel originated in the nineteenth century, when federal courts in the United States began to assign legal personhood to vessels. In United States v The Little Charles 1818 Justice Marshall, declared: ‘This is not proceeding against the owner, it is a proceeding against the vessel for an offence committed by the vessel, which is not less an offence, and does not less subject her to forfeiture, because it was committed without the authority, and against the will of the owner.’[4]
The doctrine of legal personhood of the vessel is fundamental to the United States admiralty practice and finds no place in the English admiralty law, which does not treat a vessel as a legal person capable of being sued in its own right, contrary to some scholarly opinions.[4] In English admiralty law, the act of arresting a vessel is to secure the defendant’s (e.g.: the owner), appearance in the suit, rather than as an action against the wrongdoing vessel. The principle of doctrine of legal personhood of a vessel has undoubtedly done much to develop admiralty law in the United States, where the vessels is recognised as the offending entity and can be liable even though the owner/master/crew have no in personam liability.
The Doctrine of Stare Decisis and Analogical Reasoning
The doctrine of stare decisis is very much relevant to the Unites States admiralty law, a body of case law, the examination of which necessitates no step, either by judge or legislature, without the light of previous judicial experience embodied in the volume of case reports. It has, by giving the effect of law to prior decisions, given rise to the justification of the grant of legal personhood to an inanimate entity: ‘A ship is the most living of inanimate things (…) it is only by supposing the ship to have been treated as if endowed with personality, that the arbitrary seeming peculiarities of maritime law can be made intangible, and on that supposition they at one becomes consistent and logical.’ It has, by giving the effect of law to prior decisions, given rise to the necessity of the publication of each one. And this necessity has created the volume of case law which should become a source of logic and reason to the attorney of today when confronted by present unregulated by law actions of unmanned aircraft systems up to 55lbs/25Kg (UAS) by the application of analogy.
The doctrine of stare decisis that so long existing has been receiving much criticism. No doubt some remedy for the burden shall be found by the primal interests of justice when under the present system, justice might no longer be promoted. However, the policy of almost implicit adherence to past decisions has many supporters, including the author of this note who sees virtue in it when dealing with present social, economic and technological circumstances related to the autonomous actions of UAS and related question of how to answer them. This view is supported by the Austin’s opinion that judicial law 'compels the judge to take the narrowest possible view of every subject, and consequently the law he makes is necessarily restricted to the particular case which gives occasion for its promulgation.' [5] Thus, one may argue that the development of law by judicial precedents is precisely the opposite of the development of principles of science. In the law, the principle is deduced from examination of one particular case; in science all possible manner of cases must be examined before a scientific principle is admitted. With this in mind, however, one may theorises that the legal aim to take the ‘narrowest possible view of every subject’ supports the idea of legal analogy.
Two questions arise with regards to the analogical reasoning. First, what is the process allowing the decision maker (the justice) to identify the ‘common grounds’ between the vessel case and the analogous UAS one? This is to say what sort of reason does an analogy provide for deciding the instant case in the same way? Second questions would relate to the type of justificatory force which the common characterisation could provide. When analysing both concerns it becomes obvious that no two cases can be identical in every respect of the facts that can be found in both cases. The author suggests that in the case of analogy, however, the doctrine of legal personhood with regards to drones committing similar offences could be extended unless there are good reasons for treating the instant case differently.[7] The reasons-based approach enables to explain why individual cases, and individual doctrines, could ground analogies. This is to consider the extent to which the rational for the decision in the earlier case, is applicable to the case at hand. Let us refer back to the case of a drone infringing the law. Whether this situation is analogous to the vessel infringing the law depends on extend and type of harm or damage caused by the latter. On this rationale there is some room for arguing that legal personhood should be granted to the drone in cases of actions that conclude in a similar harm or damage related to the one generated by the vessel. The principle that would underline the rational would be the grant of legal personhood to the drone in a similar manner as it happened with regards to the vessel.
Conclusion
Legal personhood of a vessel, adopted and long adhered to, have been approved by individuals, who having authority to change, have abided by it. Those later considering it have discovered the reasons behind this grant. The United States admiralty law by granting legal rights and duties to the vessel have gained stability but also to some extent flexibility while endowing modern judges with an ability to argue for the grant of legal personhood to another inanimate entity by analogy. It is apparent that there are relations between both entities (a vessel and a drone) understood as inanimate and to certain extent autonomous from human intervention. Witness that, in the US inferior courts, legal reasoning by analogy is not rare, and that citation of cases by reason of analogy is the rule. Arguably, facing new social, legal and technological circumstances it is necessary that we extend the doctrine of legal personhood to cases that are analogous. Is it probable that the doctrine of legal personhood is applicable to the actions of drones? Can the authorities defining the laws regarding the vessels of one hundred years ago, adequately establish principles? As long as the judges of today do not think of establishing the rules of tomorrow but focus on the one that had been established in the past and treat them as appropriate for the challenge of today, the answer to both questions will be - 'yes'.
References:
(Oscola style of referencing)
[1] Drones & UAS <http://centennialairport.com/
index.php/about-us/drones-and-uas> accessed 13 April 2017
[2] Natural or legal person person owning a ship or shares in a ship.
[3] United States v The Little Charles 1818 26 F Cas 979,981-82 (CCD Va 1818).
[4] S Chopra and L White, 'Artificial Agents - Personhood in Law and Philosophy' <www.sci.brooklyn.cuny.edu/
~schopra/agentlawsub.pdf> accessed 13 April 2017
[5]J Austin, The Province of Jurisprudence Determined 1832 vol II (Cambridge University Press 1995) 657
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