Document Type

Article

Publication Date

Summer 2017

Publication Title

Hastings Science and Technology Law Journal

Volume

9

Issue

2

First Page

135

Abstract

In discussions of the regulation of autonomous systems, private law — specifically, company law — has been neglected as a potential legal and regulatory interface. As one of us has suggested previously, there are several possibilities for the creation of company structures that might provide functional and adaptive legal “housing” for advanced software, various types of artificial intelligence, and other programmatic systems and organizations — phenomena that we refer to here collectively as autonomous systems for ease of reference. In particular, this prior work introduces the notion that an operating agreement or private entity constitution (such as a corporation’s charter or a partnership’s operating agreement) can adopt, as the acts of a legal entity, the state or actions of arbitrary physical systems. We call this the algorithm-agreement equivalence principle. Given this principle and the present capacities existing forms of legal entities, companies of various kinds can serve as a mechanism through which autonomous systems might engage with the legal system. This paper considers the implications of this possibility from a comparative and international perspective. Our goal is to suggest how, under U.S., German, Swiss and U.K. law, company law might furnish the functional and adaptive legal “housing” for an autonomous system — and, in turn, we aim to inform systems designers, regulators, and others who are interested in, encouraged by, or alarmed at the possibility that an autonomous system may “inhabit” a company and thereby gain some of the incidents of legal personality. We do not aim here to be normative. Instead, the paper lays out a template suggesting how existing laws might provide a potentially unexpected regulatory framework for autonomous systems, and to explore some legal consequences of this possibility. We do suggest that these considerations might spur others to consider the relevant provisions of their own national laws with a view to locating similar legal “spaces” that autonomous systems could “inhabit.”

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