Yes, its summer break and the class is over, but blogs were meant for blogging… A couple of interesting articles on the mechanics of rule judgment and animal rights in the mainstream web-press this past week that seemed worth commenting on. These are issues that were central themes in “The Laws of Robotics,” an upper year law school elective course at uOttawa that uses advances in robotics and artificial intelligence technologies to explore legal theory and subjectivity. Like love itself, methinks we are often enchanted more by an ideal rather than the reality. We are more accustomed to fictional intelligent sentient machines like us than we are with the much more starkly limited reality of the primitive and operator-dependent robots and AI technologies in our present, near and foreseeable futures.
Firstly from Slate.com is an article from their jurisprudence series by Dahlia Lithwick. The column usually follows current US Supreme Court cases and issues, deconstructing the legal debates and their underlying issues at hand. In this case however, its a look at outgoing SCOTUS Justice Souter’s comments at this year’s Harvard Commencement. In a column titled “Its Complicated” she notes that constitutional litigation involves ruling on complex social issues in which competing but legitimate social interests make for complex and highly nuanced circumstances that do not readily translate into hard facts that can be quantified. In class one of the key themes we explored was the extent to which judging might be rendered more effective, efficient and equal by mechanical application of rule sets to facts by machines. My sense of the outcome of the discussions was “not quite.” Human language, written or not, expresses deeper meaning, tone and implication than what is expressed in writing or verbally. How and to what extent can we code context, especially when it evolves incrementally over time based on a myriad of major and minor inputs from all areas of the human social realm? Policies are all contextually driven. Laws are meant to effect policies. Context, nuance, and intent are all open to varied interpretation depending on your experience and interests. Judgments devoid of these accoutrements may be appealing for their simplicity and finality, but how just and useful are they to the people who have to abide and live by them?
Just as our fictional vision of robots as complex and humanized characters betrays the stark reality of modern robotics’ actual capacities, our ability to hope for the existence of machines to which we can outsource this kind of complex socio-cognitive activity far outstrips anything in our current or near future capacity to do so. We really don’t know how we think and analyze as biological entities yet, so we are far off from replicating that synthetically – we may build computers that can register differences in sensory potentials, but any logic we build for them is simply an expression of how we think logic is performed, not based on any applicable factual knowledge of how we actually biochemically perform our own logic.
To that end, Lithwick notes in this excerpt:
[...] But Souter went on to show that certain provisions of the document are in tension with others. “The Constitution is no simple contract,” he explained, “not because it uses a certain amount of open-ended language, but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, altogether, all at once.”
Under such circumstances, justices can no more be neutral umpires—in Chief Justice John Roberts’ famous formulation—than they can be dispassionate microcomputers. You can be the greatest reader of text in the world and the most profound diviner of linguistic meaning, but it still won’t help you in any but the handful of very easy cases, which, as Souter correctly observed, “do not usually come to court, or at least the Supreme Court.” That is precisely why, he added, “the fair-reading model has only a tenuous connection to reality.” It describes a nonexistent universe in which all cases are easy and all the constitutional directives are perfectly clear.
Souter went on to describe two cases in which the result was not at all clear or obvious—the Pentagon Papers case from 1971 and Brown v. Board of Education in 1954. In the first case, he noted, two constitutional values were in direct tension, and there was no obviously right answer. In the second, constitutional values had evolved to the point that “separate but equal” was no longer defensible, even if the plain language of the 14th Amendment guarantee of “equal protection” had not changed. Neither of these two propositions seems surprising to most of us. Nobody truly believes the idea of mechanical, easy judging to be anything more than normative propaganda. [...]
The second article is from Slate’s sister publication, by Christopher Stone of the Washington Post titled “Habeas corpus for animals? Why not?“ Stone is a law professor representing a sea lion facing a death sentence under a US federal Marine Mammal Protection Act. That act, according to the author, allows federal officers to shoot and kill “individually identifiable pinnipeds” that are having “a significant negative impact on the decline” of salmon stocks. The sea lion, named “C657″ by the US Army Corps of Engineers, allegedly ate a salmon in protected waters. Allegedly, because in this case, apparently federal officials cannot produce exact witness testimony that this particular sea lion was seen eating a salmon in protected waters, but simply that it was seen in the area. Talk about racial profiling – DWB is dangerous enough, SWP (swimming while pinniped) is looking pretty fatal, and just as systemically unfair.
To Prof. Stone “the larger principle is the right of non-humans to sue in their own names, with lawyers as their guardians.” Our class, The Laws of Robotics, was essentially a law school course on legal theory and subjectivity. As we explored it, one of the key elements of inquiry was about at what point in technological and legal development might non-human entities, synthetic or organic, acquire legal rights and standing, akin or equal to the rights and privileges granted to human beings in this modern age. In this case, how valid and the principled and factual justifications for terminating the life of an animal for just doing what it was meant to do in an man-modified environment that has become its home and feeding ground?
In the roundtable class on Leiber’s “Can Animals and Machines be Persons” fictional scenario, we had to weigh in on whether or not, and on what legal basis, might the monkey Washoe-Delta and the computer AL be rescued from orbit following the return of the human crew of a near-Earth space station. My argument was no, not necessarily. Animals and machines exist beneath human beings in the socialized hierarchy of life forms on this planet. By virtue of our intellectually and socially coordinated species dominance of this planet, for better or worse, its our call to make decisions that serve our interests as human beings. Animals serve as our friends or our food, depending on our needs. We make those life and death decisions. It certainly sounds cruel and arbitrary, since we are animals ourselves, but its a reality that has ensured our survival and prosperity over the entire course of human evolution on this planetary ecosystem. We don’t call ourselves Apex Species for nuthin’. As far as machines go, they are creations of our making and they are not subject to the same physical frailties of biology as animals – they don’t suffer pain, social anxiety or death in any near form to that of animals, and they can be rebuilt, rebooted and revived to a prior state such that death does not have the same experiential finality of organic species. Machines are non-living and replaceable tools, regardless of their sophistication (and again, reminding ourselves that their sophistication in reality is still a colossal order of magnitude below that of our abundant science fiction).
In this case though, Prof. Stone makes a very good point – these sea-lions deserve standing enough to receive legal representation in a human court of law. Although they are animals, this can and should not mean that their existence is entirely meaningless nor that they should not be treated with respect, compassion and fairness. Their interests may never, or only in limited circumstances, trump our own human concerns when it comes to individual and species safety, but they too have an equal right to exist and pursue their lives as we do. As a matter of equal concern and respect for organic life, especially for higher order mammals as they are, their lives should not be indiscriminately infringed upon. Animals live, and where living is a desirable state of existence, law can and does grant rights to preserve the quality of that state of being. The test becomes one of competing social interests and priorities. Based on the alleged infraction by sea lion C657, is its life worth preserving more preferable a priority than maintaining the dictates of a federal fish conservation policy?
It seems to me, that by the rules set up by the MMPA itself, there is no credible reason to execute C657 (and perhaps several of its pinniped companions) since those rules are quite distinct on their own. For starters, there is no conclusive proof that this particular individual sea lion, C657, ate any salmon at all in the designated area. Secondly, there is no conclusive proof that sea lion consumption of salmon (aren’t fish a main staple of the sea lion diet?) is of any significant impact to the decline of salmon stocks it seeks to protect. In the circumstances described by Stone, it seems as if, by their own rules, humans are scapegoating the sea lions for failures in their own conservation strategies. The sea lions are not the primary cause of the problem the MMA is trying to address – its more likely broader issues in the environment brought about by human intervention in the environment over decades. But that’s difficult to see and justify action against. Sea lions are a simpler and more visible target – regardless of the fact that they are just doing what sea lions do. How quickly the humans are to attribute their own complex notion of tortious liability, remedy and criminal penalty on animals that we know to be intellectually inferior species. When animals are cited for infractions of human rules, we ought to examine the details of those rules and the facts surrounding the offenses before we take terminal actions against them. Such policies, the rules that enforce them, and the facts that trigger them are all subject to interpretation, and are thus arguable in court – these sea lions deserve able counsel to argue for their rights to be and act like sea lions. I wish Professor Stone support and success in his arguments.
June 21 2010 rp
