by Dr. Lance B. Eliot
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Key briefing points about this article:
- Courts use the mechanism of legal fiction to help smooth out rough spots in the law
- A legal fiction is an assumption or acceptance of something as fact, though it might not be
- Some are proposing that AI ought to be covered via a newly conceived legal fiction
- In brief, AI would get a form of legal personhood but only in the legal fiction semblance
- This has generated intense debate and continues to be bandied about
In the law, sometimes there is a need to craft a somewhat fictional aspect for purposes of allowing the wheels of justice to spin freely and not get unduly gummed up.
That’s where legal fiction can handily come to play.
Per the definition of the Cornell Law School’s Legal Information Institute (LII), a legal fiction is formally denoted as “an assumption and acceptance of something as fact by a court, although it might not be, so as to allow a rule to operate or be applied in a manner that differs from its original purpose while leaving the letter of the law unchanged.” This is done ostensibly in the pursuit of justice, but for which can also be more modestly employed in the interests of convenience or for other jurisprudential benefits.
I am reminding you about the nature of legal fiction to provide a bit of a potential surprise or some might say a mind-bending bombshell about a loosely proposed legal fiction regarding AI.
Are you ready?
Some experts suggest that we might need to concoct a legal fiction associated with ascribing a form of legal personhood to AI systems. This, in turn, would allow for applying punishments to AI that has crossed the line and ventured into either outright criminality or the realm of civil liability.