In the Civil Code, property has much more legal value than possession. The mere tenure of the thing in the name of a third party gives rise to fewer rights than possession of it.
The Law guarantees internet users ownership of the data they produce. But this right does not produce any economic effect, as only those who have ownership of the data and property rights over algorithms (Big Techs and internet platforms) can use them to make a profit.
In the virtual world, therefore, possession or tenure of data has much more legal value than ownership. This paradoxical inversion of legal concepts, which coexists with the version prescribed in the Civil Code, was invented to benefit the data barons. If so, Big Tech will have to beg to use our data or pay to do so. They obviously would not concentrate power and wealth if they could not enjoy the legal privilege they enjoy.
This is an important topic that is often not taken into consideration. Internet users are deceived by supposedly free services, but in reality what they do is produce free data that concentrates more and more economic wealth and political power in the hands of data barons.
Initially, Big Techs licensed and supplied their products (software and hardware) to justice systems that began to become more and more computerized. Now that Court proceedings in several countries are almost entirely virtual, data barons have developed AIs to automate decisions. Ultimately, judicial decisions will be made by robots and validated by human judges who will supposedly evaluate everything before signing them. What could go wrong?
The concerns of academics about the quality of judicial decisions made with the help of AI, which have been intensely publicized in books and articles on the internet, cannot be ignored. Text-generating Artificial Intelligence can, for example, provide the judge with relevant data about a specific case on which decisions with erga omines effect handed down by a Supreme Court apply. But if the jurisprudence is not pacified, who will choose the jurisprudential line to be adopted in the specific case? The judge or the Artificial Intelligence that suggested a decision containing bias in favor of a certain jurisprudential current? Will the pacification of jurisprudence be done by judges or by algorithms that will vomit judicial decisions?
We know that Law has never been and will never be an exact science. It deals with human imperfections in an imperfect world. Predictive Artificial Intelligences are exceptionally good tools at making statistical calculations and providing pertinent answers based on the analyzed data. But they fail when what is being judged is not exact information, the analysis of which allows the most likely result to be calculated with a high level of accuracy.
Human beings are unpredictable. Social and historical phenomena are uncontrollable. The facticity of the Law is inevitable. No judge can force all new facts to fit within a certain old and outdated legal rule. Sometimes the Law itself has to be stretched through interpretation to adapt to the constantly moving world. No Artificial Intelligence will be able to do this.
Several things can be said about this movement to privatize Justice. Firstly, it is a return to the oldest period of Roman Law, in which the Iudex who decided cases was not a state agent but a prominent citizen chosen by the contenders. But currently, the private virtual judge will not be chosen by the parties but manufactured by a private company without people being able to know for sure how the black box works.
I have also already made a long theoretical digression about the similarities between the use of AI to make judicial decisions and the oldest phase of Roman Law. Roman private justice was replaced by public justice distributed by state agents. This meant a great evolution. Evolution that is now being despised for obscure economic, technological and political reasons. But what surprises me here are the medieval implications of the phenomenon.
The decline and fall of Rome also meant the decline of Roman Law. During the Middle Ages, local facticity and custom became more important than a general Law. After a long evolution of medieval legal pluralism, Roman Law was reintroduced into the legal arena with the necessary adaptations made by glossators.
The distribution of justice in the first centuries of the Middle Ages was problematic, because in addition to the distinction between religious and secular justice, each social and local group was subject to its own customary law. The laws made by the princes may or may not be respected during trials. Legal security was therefore very little.
Around the 13th century, legal scholars began to advise judges during trials. This increased the rigor of decisions and added more autonomy to Law and Justice and greater credibility to judicial decisions.
“In everyday experience and in the reflex consciousness of jurisconsults, customs retain the role of force of adequacy; Science, instead of ridiculing them, gives them its own endorsement, frees them from the leaden mantle of the old and aged law, restoring them to their universal schemes. Singular dialectic between universal and particular, and also singular symbiosis between the uses, which creep through the earth and are impregnated with earth, and a science that is illumination from above. It is the specificity of the law of the sapiential Middle Ages.
This can be established by following the doctrinal development step by step and later observing the increasingly wider space of local customs in the works of glossators. Azo did not hesitate to open a tasty localist parenthesis right in the center of his solemn Lecture of the Code of Justinian and to corroborate his pro-customary argument with an example taken from the Emilian regional praxis of emphyteutic concessions over ecclesiastical goods; ‘exemplum satis familiare occurit in terra ista, praecipue tamen Mutinae et Ravennae […]’.
These are the times when, in central-northern Italy, wise men begin to sit next to the judge as counselors and to create, as lawyers, a literature incredibly rich in legal opinions, where theory and praxis are inextricably linked.” (The Medieval Legal Order, Paolo Grossi, publisher Martins Fontes, São Paulo, 2014, p. 233/234)
Now text-generating Artificial Intelligences will sit alongside judges as advisors to create a literature full of legal opinions (in some Courts they already do this), where theory and praxis will be inextricably linked. But in our case, the data and metadata on the Judiciary servers will be more important than the facts of the phenomenal world that were brought to the attention of the Court.
Medieval praxis, which valued the facticity of Law and the value of customs, freed the distribution of Justice from the lead mantle of old and aged law. Judicial praxis dominated by Artificial Intelligence cannot do this. Most likely, it will do just the opposite, that is, AI can imprison the world in a tight virtual bubble in which old Laws can no longer be interpreted and stretched to adjust to new facts and customs that emerge.
What in the Middle Ages represented an advance, in our Post-Modern Age may represent a setback.