Legal order originated in a land-centered agricultural society, having now gone through a market-centered industrial society and a network-centered information society. With the rise of the intelligent society, it is transforming into an algorithmcentered legal order of an intelligent society. The “digital” “networking” “intelligent” revolution brought by the intelligent technologies including big data, cloud computing, the Internet, blockchain, and artificial intelligence (AI), has been causing critical challenges to the current legal order, and has generated powerful momentum for construction of fresh legal order featuring scientificness, people centeredness, justice, inclusiveness and co-governance. Construction of such a new jurisprudential legal order to solve this intelligent society’s “governance deficit” is an urgent task. There is a need to set up a new foundation on which an intelligent society can build steady and lasting progress.
In the age of artificial intelligence (AI), robots have profoundly impacted our life and work, and have challenged our civil legal system. In the course of AI development, robots need to be designed to protect our personal privacy, data privacy, intellectual property rights, and tort liability identification and determination. In addition, China needs an updated Civil Code in line with the growth of AI. All measures should aim to address AI challenges and also to provide the needed institutional space for the development of AI and other emerging technologies.
Artificial Intelligence (AI) application in the judiciary has initiated the historical process of moving from access to justice (ATJ) to “visible justice” and has profoundly changed the judicial operation mechanism. The judiciary’s visualization, codification, modularization, and intellectualization are reshaping the judicial procedure and greatly improving the efficiency of intelligent justice. But Judicial AI (JAI) still has its inherent limits. It is not easy to achieve absolute objectivity and accuracy in algorithmic decision-making, and in more complex cases, JAI can promote formal justice but not substantive justice. The judiciary’s AI optimization and reshaping effect should be developed simultaneously with risk prevention. It is necessary to establish corresponding regulations and relief mechanisms for algorithmic decision-making and to infuse the concepts of openness, fairness, and responsibility to promote science and technology for goods and positive development of intelligent justice to realize “visible justice.”
The superposition of artificial intelligence (AI) and non-state power has aggravated changes in state functions, and has downgraded centralism of political state. The “Intelligent Leviathan” will persist in objectifying the “individual.” The relationship mode of “human-human” being transformed into the mode of “humantechnology-human, ” is giving rise to a new social structure, while state power together with non-state power, law and the algorithm, as well as ethics and technologies, are creating a new order. The major threat to freedoms and rights is horizontal non-state power, instead of vertical state power. Going through profound changes, legal scenarios need reconstruction of “kindness” dimension for balancing the “rights priority” theory, while the “obligations standard” should be recovered in the sense of legal technology to rectify the “rights standard” and to resolve the “rights disability.”
Increasingly, algorithms challenge legal regulations, and also challenge the right to explanation, personal privacy and freedom, and individual equal protection. As decision-making mechanisms for human-machine interaction, algorithms are not value-neutral and should be legally regulated. Algorithm disclosure, personal data empowerment, and anti-algorithmic discrimination are traditional regulatory methods relating to algorithms, but mechanically using these methods presents difficulties in feasibility and desirability. Algorithm disclosure faces difficulties such as technical infeasibility, meaningless disclosure, user gaming and intellectual property right infringement. And personal data empowerment faces difficulties such as personal difficulty in exercising data rights and excessive personal data empowerment, making it difficult for big data and algorithms to operate effectively. Anti-algorithmic discrimination faces difficulties such as non-machine algorithmic discrimination, impossible status neutrality, and difficult realization of social equality. Taking scenarios of algorithms lightly is the root cause of the traditional algorithm regulation path dilemma. Algorithms may differ in attributes due to specific algorithmic subjects, objects and domains involved. Therefore, algorithm regulation should be developed and employed based on a case-by-case approach to the development of accountable algorithms. Following these development principles, specific rules can be enacted to regulate algorithm disclosure, data empowerment, and anti-algorithmic discrimination.
As cyber-space has become increasingly important for human activities, and intelligent algorithms are widely used in cyber-space, we are rapidly entering an intelligent society. Now, algorithmic enforcement and regulations of law have posed non-negligible issues. As algorithmic enforcement of copyright law was introduced earlier than that of other laws, it provides a helpful observation perspective. The worldwide practice of copyright enforcement has gradually departed from traditional “safe harbor provisions, ” and has emphasized prior examination of shared contents uploaded by Internet service providers’ (ISPs) users through the following three dimensions: automated infringement detection algorithms voluntarily used by the ISPs, heavier judicial liability of ISPs, and updated legislation principles. Thus, innovations and development have stimulated new mechanisms and regulations for enforcing copyright in cyberspace. Algorithmic enforcement of copyright law in an intelligent society is essential and meaningful. The copyright regulation mechanisms should be guided by jurisprudential principles and concepts featuring the principles of (a) legitimate and efficient flow of information, (b) balance between and among algorithmic power, public power and private rights, (c) boosting the sharing economy and the new gig economy, and (d) promoting social governance philosophy of “coconstruction, co-governance and sharing.” These principles are meaningful for creation of a new mechanism for balancing interests between ISPs and their users, and for introducing the pluralistic co-governance mechanism beyond simply practicing “filtering obligations.” In addition, these principles are significant for improving a certification with credibility of copyright status and ownership, and for advancing a mechanism for online collegiate-panel dispute resolution.
Free will is the foundation of determination of responsibility. Genetic enginnering represented by technologies of gene editing, artificial medical devices and AI have fundamentally challenged the concept of free will and so have significantly influenced determination of legal responsibility. These challenges are fundamental, not instrumental, and can be divided into two aspects in legal philosophy. First, the direct challenge, that is, the emerging technology represented by genetic engineering and artificial narrow intelligence (ANI) has challenged the concept of free will. Second the would-be ultimate challenge, that is, presented by an artificial general intelligence (AGI) agent that is considered to reach humanlevel free will, can be a legal subject, thus taking full legal responsibility. The direct challenge constitutes a new “forgiveness” condition for taking responsibility. The would-be ultimate challenge deserves significant attention, because the concept of free will is not only about human responsibility, but also about human dignity.