The aim of this chapter is twofold. On the one hand, the intent is to flesh out old and new challenges of today’s democracy and 14 ideal candidates for cases of general disagreement in the legal domain. On the other hand, in order to tackle such legal hard cases that concern either the meaning of the terms framing the legal question or the ways such terms are related to each other in legal reasoning, or the role of the principles that are involved in the case, three normative perspectives are employed. They concern the principles of justice, toleration and a mix of both. What ultimately is at stake has to do either with the risk of a toothless tolerance or the threat of an intolerant justice, and the ways in which we may avert the limits of this alternative.
Ugo Pagallo and Serena Quattrocolo
The aim of the chapter is to examine current trends of AI that may affect the tenets of the criminal law field. By ascertaining whether, and to what extent, the increasing autonomy of AI decision-making can affect such tenets of this field, as the notion of an agent’s culpability (i.e. its means rea), vis-à-vis matters of criminal conduct (i.e. the actus reus), a further differentiation appears critical: AI technology can be used either for law enforcement purposes, or for committing (new kinds of) crimes. The analysis is correspondingly divided into two parts. On the one hand, focus is restricted upon the risks of using AI-based evidence in criminal proceedings. More particularly, attention is drawn to Articles 6 and 8 of the European Convention on Human Rights (“ECHR”). On the other hand, the chapter scrutinizes whether an increasing set of decisions taken by smart robots and AI systems may already fall within the loopholes of the system. The overall aim is to show that current provisions of criminal law, such as the ECHR's rules, can properly tackle the normative challenges of AI as a means for law enforcement purposes and yet, the primary rules of the law that intend to directly govern individual and social behavior do not cover some of the new cases brought on by the use of the technology under examination. The lacunae that follow as a result suggest that we should take into account a different set of norms and procedures, namely, the secondary rules of change that permit to create, modify, or suppress the primary rules of the system. Current developments of AI do not only cast light on the resilience of today’s criminal law systems and the principle of legality, but also on basic categories of jurisprudence and its European counterpart, that is, the “general theory of law.”