Popular Culture

What is legal personhood? Many people understand personhood – and by extension law – through depictions in popular culture. The contemporary feature film for example provides a lens through which non-specialists (people without a background in information technology, philosophy and law) can make sense of humanoid robots and distributed artificial intelligence (AI), entities that perform as ‘human’. Such an understanding is increasingly salient as AI becomes a pervasive but under-recognised aspect of daily life, and continues to evolve in its sophistication and complexity, provoking questions about rights, responsibilities and regulation regarding artificial entities that are independent rather than autonomous. The article accordingly analyses depictions of personhood in films such as Ex Machina, WarGames, Alien and Alien Covenant, Forbidden Planet, RoboCop and AI. It suggests that popular culture has an uncertain grasp of legal personhood but provokes thought and tells us something useful about the difference between human animals, non-human animals, corporations and new artificial persons. Those differences will be legally and culturally contested in the emerging age of smart machines and governance by algorithm. Legal personhood is a strange creature, more omnipresent but less colourful than the creatures featured on screen in films such as Metropolis, 2 Prometheus and Alien 1 Dr Bruce Baer Arnold is an Assistant Professor at the School of Law & Justice at the University of Canberra. His work has appeared in Melbourne University Law Review and other journals, along with chapters on digital cities, privacy and secrecy. His current research focuses on regulatory incapacity at the intersection of public health, consumer protection and technology. Mr Drew Gough is an Information Technology consultant who has worked across federal, state and local government. His area of expertise is IT security and high availability infrastructure and disaster recovery. He is the creator and primary contributor to the technology and gaming blog ConstantlyRespawning.com. Work on law, code and ethics in learning platforms is forthcoming. 2 Metropolis (Directed by Fritz Lang, Universum Film, 1927). Arnold & Gough, ‘Turing’s People’ Canberra Law Review (2017) 15(1) 2 Covenant, The Terminator, Ex Machina, RoboCop, and Star Wars or in canonical texts such as Frankenstein, Or The Modern Prometheus (1818) and L'Ève future (1886). Legal personhood is man-made, a creature of administrative convenience and social convention that specialists and non-specialists alike often take for granted. 10 It privileges some interests. It enshrines particular capacities, for example the sentience and susceptibility to suffering of human animals – the paradigmatic legal persons – rather than their non-human peers on the disadvantaged side of what rights scholar Steven Wise characterised as the thick legal wall differentiating humans from other animal species. As noted below it involves a bundle of rights, duties, powers and disabilities. It lacks a discrete statutory definition. It is founded on what John Dewey characterised as ‘considerations popular, historical, political, moral, philosophical, metaphysical and, in connection with the latter, theological’. It may be enjoyed by bloodless entities, such as corporations and the nation state, that we have created to act on behalf of individuals or communities but, unlike those humans, may exist in perpetuity outside the frame imposed by mortality and individual morality. It is not enjoyed by non-human animals, irrespective of their cognition, sociality or a susceptibility to physical injury and distress that resembles our own. Personhood is thus not a monopoly dependent on the human genome. As yet it has not been extended to entities whose perception and responsiveness to their environment – a matter of sentience and agency, matters that we enshrine in the personhood of human 3 Prometheus (Directed by Ridley Scott, Scott Free, 2012); and Alien Covenant (Directed by Ridley Scott, 20 Century Fox, 2017). 4 The Terminator (Directed by James Cameron, Hemdale, 1984). 5 Ex Machina (Directed by Alex Garland, Film4, 2014). 6 RoboCop (Directed by Paul Verhoeven, Orion Pictures, 1987). 7 Star Wars (Directed by George Lucas, Lucasfilm, 1977). 8 Mary Shelley, Frankenstein, Or The Modern Prometheus (Lackington, Hughes, Harding, Mavor & Jones, 1818). 9 Auguste Villiers de l'Isle-Adam, L'Ève future (Monnier, De Brunhoff, 1886). 10 Roger Cotterrell, The Sociology of Law (Butterworths, 2 ed, 1992) 124. 11 Steven Wise, Drawing the Line: Science and the Case for Animal Rights (Basic Books, rev ed, 2003) 1. 12 Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (Ashgate, 2001). See also Pierre Schlag, 'How To Do Things With Hohfeld' (2015) 78(1/2) Law and Contemporary Problems 185. 13 John Dewey, ‘The Historic Background of Corporate Legal Personality’ (1926) 35(6) Yale Law Journal 655, 655. Arnold & Gough, ‘Turing’s People’ Canberra Law Review (2017) 15(1) 3 animals – are functions of digital technology and artificial intelligence (AI) rather than flesh, blood and programming at school. When we look at humanoid robots (multi-function autonomous or even independent intelligent devices) and what is colloquially referred to as AI (multi-layered or distributed deep learning systems) we will increasingly see a reflection of ourselves: a blurred image of our capabilities and questions about our nature, our rights, our responsibilities and our self-awareness. The AI depicted in many of the films in this article often have human capabilities – loyalty, insight, bravery, honesty, insight – or what uncannily appear to be those capabilities, along with a range of psychopathies that are evident in the boardrooms of corporate Australia or locations such as Trump’s White House. As the final part of this article contends, that behavior should provoke thought among readers of Judith Butler. Is ‘human’ in some contexts a matter of performativity rather than physical form? It should also provoke thought about the serviceability of the Turing test. Turing’s famous, much cited and sometimes misunderstood test for differentiating between the natural and artificial posits that if responses by an entity behind a screen to questions put by a human cannot be discerned as coming from a machine that device is intelligent. Does problem solving and the manifestation of what appears to be human capabilities justify attribution of some form of legal personhood to AI alongside corporations and other entities? 14 Among introductions to AI see Mariusz Flasinski, Introduction To Artificial Intelligence (Springer, 2016). 15 It is axiomatic that there are varying degrees of autonomy (in other words the extent to which action by a device is determined by a direct command from an operator or rules built into the software that is the basis of that action). Many devices and services encountered within Australia in everyday day life have some sentience and intelligence (for example a geospational functionality or ability to determine creditworthiness) but none as yet are self-aware, with a consciousness resembling that of a human – ‘I think, therefore I am?’ – and independent problem-solving skills when faced with a uniquely new task or environment. 16 Paul Babiak, Craig S Neumann and Robert D Hare, ‘Corporate Psychopathy’ (2010) 28 Behavioral Sciences and the Law 174. 17 Alan A Turing, ‘Computing machinery and intelligence’ (1950) 59(236) Mind 433; and B Jack Copeland, ‘The Turing Test’ (2001) 10(4) Minds and Machines 519. The test is not specifically recognised in Australian law and as researchers since 1950 have noted will not necessarily address attributes such as empathy. Arnold & Gough, ‘Turing’s People’ Canberra Law Review (2017) 15(1) 4 A Personhood through a cinematic gaze In making sense of AI and by extension ourselves as actors within legal systems many people will look to depictions of AI in film rather than graduate law and philosophy seminars or the proceedings of the Association for Computing Machinery (ACM) or the Institute of Electrical & Electronics Engineers (IEEE). Cinematic depictions of AI are incoherent. That incoherence is unsurprising, given that film is a matter of entertainment rather than an exegesis of theorists such as Agamben or Schmitt concerned with ‘bare life’ and exclusion on the basis of arbitrary attributes such as ethno-religious affinity. 18 It is also unsurprising given that many people construe personhood as ‘being human’ (‘acting’ and ‘looking’ human) but do not necessarily agree on what attributes constitute a person and what are the consequences of that personhood. Film, like law, is a way of making sense of the world. It may be a way of making sense of what law is and what law should be, a foundation of social cognition. This article explores legal personhood slantwise through the lens of popular culture: what films tell us about depictions of the glass wall between natural and artificial persons. That sideways glance at personhood is novel, is timely on the 200 anniversary of the appearance of Mary Shelley’s Frankenstein (progenitor of contemporary AI fiction such as The Fear Index and the so-called ‘Frankenstein Complex’ in perceptions of AI), and may provoke thought among readers accustomed to construing personhood 18 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Daniel Heller-Roazen trans, Stanford University Press, 1998) [trans of Homo sacer. Il potere sovrano e la nuda vita (first published 1990)] and The State of Exception (Kevin Attell trans, University of Chicago Press, 2005) [trans of Stato di Eccezione (first published 2003)]; and Carl Schmitt, The Concept of the Political (George Schwab trans, University of Chicago Press, 1997) [trans of Der Begriff des Politischen (first published 1932)] 27 and On the Three Types of Juristic Thought (Joseph Bendersky trans, Pr