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Code Vs. Lex: Law as an Algorithm – the Existence of Laws in the New Technological Order

VII Petersburg International Legal Forum has become a venue to discuss the future of legal profession regarding the development of new technologies. Igor Drozdov, Chairman of the Board, Skolkovo Foundation, was moderating the discussion. Nikolay Averchenko, Chief Legal Counsel at Skolkovo Foundation, Anton Vashkevich, Managing Partner at Simplawyer, Artem Karapetov, Director of "M-Logos" Law Institute, Andrey Kolosovsky, Director of the Corporate, External and Legal Affairs Department at Microsoft Rus, Igor Kondrashov, Vice President - General Counsel at Sberbank SIB, Ettore Lombardi, Associate Professor of the Law School, University of Florence, Denis Novak, Deputy Director of the Department of the Economic Legislation, Ministry of Justice of the Russian Federation, Brian Swanson, Vice President for Cognitive Services at DataSkill and John Flood, Professor of Law and Society at Griffith University Law School, have taken part in the discussion.

At the beginning of the session Igor Drozdov proposed to discuss the future of legal profession. ‘Are new technologies able to facilitate law making process, are robots able to deliver judgement and carry out administrative functions, are they able to replace officials?’ he asked.

According to Ettore Lombardi, Associate Professor of the Law School at University of Florence, humanity is dealing with law codification at the moment but in the future society will shift from ‘code is a law’ structure to ‘law is a code’. However, it’s impossible to completely exclude human interference: a lawyer will be dealing with at least regulation and interpretation of law. ‘On the one hand, code is a positive phenomenon but we should distinguish the role of the code from the role of lawyers. It is lawyers who deal with interpretation of laws and provide flexibility. Code is to be both flexible and rigid enough for it to be applicable in law,’ explained Ettore Lombardi.

According to Artem Karapetov, Director of "M-Logos" Law Institute, exclusion of human participation in law enforcement and rule making is impossible in the nearest future. ‘Any practicing lawyer knows that none of the positive acts regulating different relations are complete, they have a lot of flaws. Besides, any text can be interpreted differently, there’s always an artistic approach to interpretation. There’s a need for human involvement,’ he emphasized.

Artem Karapetov said that one needs to bear in mind two integral aspects of law: uncertainty of legal norms and uncertainty of facts. Both factors do not allow to exclude a lawyer from the processes of rulemaking and law enforcement.

‘We should be optimistic and assume that some degree of algorithmization of law enforcement is possible in some fields of public relations. These schemes are quite simple, this is everything concerning registration and basic issues but it is impossible in civil law,’ said Director of "M-Logos" Law Institute.

According to Denis Novak, Deputy Director of the Department of the Economic Legislation at Ministry of Justice of the Russian Federation, artificial brain is to become a helping hand for a lawyer. ‘There are some spheres where we are running in place, where there’s an urgent need for algorithmization and the use of information technologies. But the state is looking far ahead without paying any attention to the use of basic things. For instance, one can use an artificial brain as an ancillary technical device for it just to analyze that there are no contradictions among norms and to show the solution. That is a device as an advisor of a rulemaker,’ he said.   

Mr. Novak suggested that in distant future artificial intelligence would be able to give judgement based on the comparison of different information resources, economic analysis and databases. Yet he emphasized that in this case there is a need to consider the chance to appeal the judgement in a higher court, where a judge will hear the case. Mr. Novak believes, however, that it’s too early to talk about it now, because if a robot has existing norms for analysis with no space for variability, the development of justice system risks to come to a halt. Deputy Director of the Department of the Economic Legislation of the Ministry of Justice of the Russian Federation noted, ‘In judicial practice you can’t stop at what you already have. You can’t always rely on the existing things; rather you should generate something new.’

Mr Novak also agreed with the fact that now it is too early to talk about the exclusion of humans from rule-making, law enforcement and judicial practice. He emphasized, ‘We can reject the participation of people in decision making only when robots become subjects and independent beings.’

John Flood, Professor of Law and Society at Griffith University Law School, did not agree with the previous speakers that the introduction of information technologies in judicial system and its regulation on the whole should be the initiative of state and lawyers themselves. The scientist explained, ‘The lawyers are just part of the legal system, but they think they have a monopoly. It’s not the case, however, and major part of legislation is created bottom-up – in business, arbitration and other fields where people cooperate and negotiate what system and rules to apply.’ He told about the British and US services developed not at the state’s initiative, but allowing the society and business to resolve the legal issues that lawyers don’t work with. One of them – Legal Zoom – allows to get online licenses necessary to start a business in the US. Another online service, Do Not Pay, allows appealing illegal parking penalties. 

John Flood pointed out, ‘Law automation takes place without state’s involvement. We can say that lawmaking is given to outsourcing to other groups and technology will provide an answer to the issues that the state can’t resolve.’

In the course of discussion the participants examined several practical cases of applying technologies in the legal sphere. In conclusion, moderator Igor Drozdov noted that the role of law may change in new reality and maybe its importance will change as well.