The Important Role of Emergence in Conceptualizing the Challenges of New Technologies to Private Law

Abstract

Consider the following legal quandaries: a victim of a wrongdoing without a perpetrator, a work of art without an author, or the possibility that the sum of legally compliant behaviours give rise to non-compliance. Welcome to the world of emergence in law. The concept of emergent properties is central to systems thinking. It is commonly expressed as ‘the whole is more than the sum of its parts’ where the ‘whole’ represents the ‘emergent property’. This concept helps us understand how complexity emerges and allows systems engineers to look beyond the properties of individual components of a system and understand the system as a complex whole. In practice, this way of thinking militates against two kinds of fallacies: the fallacy of composition and the fallacy of division. The former occurs when one wrongfully attributes the properties of the component parts to the system as a whole whereas the latter arises when one wrongfully attributes the properties of the system as a whole to component parts. I argue that emergence provides an overarching framework to explain the challenges that technological developments associated with big data, artificial intelligence (AI) and robotics pose for different domains of private law, including privacy, data protection, Intellectual Property (IP), and tort laws. By creating new objects, possibilities for new action and new relationships, changes associated with the above technologies encourage the formation of emergent properties, which in turn pose attribution challenges for these legal domains. Two attribution challenges are particularly noteworthy. If we fail to address them properly, they may lead to the fallacies of composition and/or division. Further, emergence may help explain some of the regulatory responses and suggestions provoked by changes associated with the above technologies. For example, emergence and the desire to avoid the fallacy of division can explain suggestions to grant AI systems some form of legal (electronic) personhood and thereby bestow legal responsibility or entitlement on them. Thus, one way the law might usefully adapt during times of technological change would be by taking emergence seriously. This includes recognizing the possibility that the sum of fully complaint behaviours may create behaviour that is not compliant or not in the spirit of the law. Taking emergence seriously would also include being open to the prospect of a harm or legal entitlement existing without a perpetrator or a right-holder and finding new ways to address this prospect.