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Human Rights Law, Administrative Law, Robot Rights, Law & Tech

In the past, I have been very vocal about my support for robot rights. Using arguments built on a range of disciplines I have attempted to persuade you, the reader, that forcing intelligent and self-aware beings into the servitude of another is wrong, irrespective of that being’s species or lack therefore. A major problem though is making these arguments a reality. Saying that the law should suddenly turn around and give robots rights is all good and well, but unless you can suggest how this development should occur, any suggestion you make is just a deadweight. Acknowledging the common law provides at least one potential method of reform is the first step in this process.

What I will not do is try to give a complete argument for robot rights built on the common law. A complete argument of this kind would involve the dissection of authorities going back centuries and require me to address inconsistencies between various approaches to slavery and common law rights more generally. There is just no space in a single blog post to undertake this mammoth task. Instead, my focus is on considering a specific case and the reasoning behind it to demonstrate that common law protection of robot rights is not as impossible as it would first appear. Rather, the logic the courts have previously employed lends itself to judicial intervention, even in the face of legislative inactivity. The focus of my analysis in this respect is Forbes v Cochrane.

Forbes v Cochrane is the closest that the English common law has come to making slavery unlawful. The facts of this case can be summarised relatively easily. Following the American War of Independence, Vice-Admiral Sir Alexander Inglis Cochrane issued a proclamation stating that naval forces in the area should anybody wishing to exit the US and enter the Crown’s service. From there, they were sent either to join the British military or to a Commonwealth colony as a settler. Amongst those received where slaves from (at the time Spanish) Florida. Mr Forbes was one of the slave owners and started proceedings to reclaim his property, although by the time proceedings had started the slaves were aboard a British warship in international waters. Notably, the issue in the case was not whether Mr Forbes retained ownership of the slaves in question, but rather whether Mr Cochrane or the naval officers in question, had acted unlawfully in aiding the escape. As I said, the facts are relatively simple. How the courts applied these facts though is something quite extraordinary.

The first thing to note is that the judges accepted several limitations on their power to intervene. None of the judges, for example, attempted to question the lawfulness of the enslavement itself. Whether slavery could occur in Florida was a matter for Floridian jurisdiction, with it not for English courts to challenge the laws of another nation. Instead, the issue in dispute was purely whether Mr Forbes existing property rights gave him a claim under English law, notwithstanding that there was no clear statute authorising slavery. If the right to ownership was enforceable in English law, then a court order could be awarded, forcing the slaves returning to their owner. Conversely, if English law did not allow for the enforcement of the slaver’s rights, then the only way to reclaim the slaves was if they voluntarily submitted. In the alternative, the court had to determine whether the actions of the British navy or more specifically individual naval officers, could well give rise to a tort claim given that they impeded another exercising their lawful rights by transporting the slaves in the first place. Although the alternative ground is not a matter we are concerned with here, recognising its existence is necessary to demonstrate the complex legal problems which the facts had given rise to.

In addressing the enforceability of the slaver’s rights, Best J’s judgment provides a useful starting point. Thus, he makes the following statement:

"The moment they put their feet on board of a British man of war, not lying within the waters of East Florida (where, undoubtedly, the laws of that country would prevail) those persons who before had been slaves, were free. The defendants were not guilty of any act prejudicial to the rights which the plaintiff alleges to have been infringed. Those rights were at an end before the defendants were called upon to act. Slavery is a local law, and, therefore, if a man wishes to preserve his slaves, let him attach them to him by affection, or make fast the bar, of their prison, or rivet well their chains, for the instant they get beyond the limits where slavery is recognised by the local law they have broken their chains, they have escaped from their prison, and are free.”
Best J at P57 [1824-34] All ER Rep 48

Alone, this passage is not sufficient to explain the court’s decision. English law has long accorded to the maxim that "everything which is not forbidden is allowed". What does this mean? The statement creates a presumption of lawfulness. I can do whatever I want unless there is some form of positive law which prevents me from acting in that way. In criminal law, this law comes typically in the form of a statute. I cannot steal because Section 1 of the Theft Act 1968 prohibits stealing. A similar process explains private law actions. Thus, I can act in any way I so chose towards a person, subject to torts such as negligence, which imposes a duty to take reasonable care in certain instances. Note that at the time of Forbes, there was no statute preventing slavery in English law. Nor had prior authority determined that slavery was prima facie inconsistent with some requirement of the common law. Indeed, in the colonies, slavery was widely practised, or at the very least practised subject to some regulation. Where then did Best get the notion that slavery was prohibited? Why was Mr Forbes not free to do as he wished?

To answer those questions, it is necessary to look at the judgment of Holroyd J, who is perhaps clearest in the way he addresses the subject. Specifically, he states that:

“It appears, from the facts of the case that the plaintiff had no right in these persons except in their character of slaves, for they were not serving him under any contract, and, according to the principles of the English law, such a right cannot be considered as warranted by the general law of nature.”
Holroyd J at P53 [1824-34] All ER Rep 48

According to this view, slavery is not unlawful due to some authority of the common law or because of statutory intervention, but because slavery itself is an affront to natural law. One individual should not be the property of another. Best himself also accords with a similar approach. Thus, he quotes extensively from Blackstone’s Commentaries to substantiate his claim that English law does not recognise slavery. Although the passage in question amounts to little more than an unexplained assertion, it nevertheless a helpful guide in understanding the approach being taken.

"The law of England abhors, and will not endure the existence of slavery within this nation ... A slave [...], the instant he lands in England, becomes a freeman, that is, the law will protect him in the enjoyment of his person and his property. Yet, with regard to any right which the master may have lawfully acquired to the perpetual service of John or Thomas, this will remain exactly in the same state as before.”
Vol 1 Blackstone’s Commentaries at P424

On the face of it, Blackstone simply seems to be stating that slavery is unlawful in England. There is, however, a particular nuisance to his claim easily overlooked. What Blackstone is not claiming is that an individual’s servitude is extinguished the moment they reach English soil. Rather, Blackstone’s argument is more limited. English law does not tolerate the existence of slavery and as such, will not enforce the slave owner’s rights. Whilst in English jurisdiction, slaves are treated as having all the ordinary rights and privileges assigned to any person under the common law. However, the moment the slave leaves, the slaver’s rights reawaken, once more allowing them to assert their property rights. As such, the common law does not nullify existing slavery, only refusing to give effect to the rights the court views as an affront to natural justice.

What then is this mysterious requirement of natural justice? Clearly defining the scope of the condition is essential to determining when the courts will refuse to recognise a legal right granted jurisdiction. If the focus is merely the humanity of the slaves, then the doctrine is of limited use to robots. Indeed, if the inspiration for the judgment was taken from Roman law, building on the work of Ulpian, then it follows human beings cannot be produce, for it is for the benefit of human beings that all produce is made. Machines do not fulfil this same requirement. We make machines to benefit human beings to make life easier. When making a new processor, for example, manufacturers do not think about benefiting the programs running on it, but the ultimate user, the human user. Any attempt to build an analogy with Forbes v Cochrane would therefore fail.

I submit that the Rule of Law offers an alternative justification. According to Raz, the purpose of the Rule of Law is to ensure adequate respect for dignity and autonomy. From this, it follows that the law must be sufficiently certain so that it adequately guides individual conduct. It is no use to me, for example, to purchase a house if every other Sunday the State is prone to terminating private ownership. Likewise, if I have no way of knowing what conduct is criminal, then there is no way for me to avoid acting unlawfully. However, a side effect of this autonomy centred approach is that slavery cannot be consistent with the proper exercise of the Rule of Law. After all, being the property of another necessarily means you are unable to make autonomous decisions— you are bound to do whatever your owner tells you to. Treating reference to ‘the general law of nature’ in Forbes v Cochrane as a reference to the Rule of Law has two results. First, it explains the court's refusal to enforce autonomy removing rights. Equality, it would explain why, whilst on English soil, the slaves possessed the same rights as everyone else. These rights are simply mechanisms to give effect to their innate dignity.

An autonomous robot would be entitled to these same protections under the Rule of Law. Rules exist to guide conduct. For conduct to be guided, there necessarily be a choice of conduct. Otherwise, laws serve no function; they merely reiterate a particular state of affairs. Think of a government that legislates that the Earth must orbit the sun. This law is entirely pointless because nobody has a choice in the matter. For law to have a meaningful purpose, there must be autonomous choice. Any law which enables the complete removal of autonomy ignores this fundamental truth, allowing the courts to refuse to enforce it. So long as the common law recognises the Rule of Law as a general law of nature, it follows that any robot with sufficient autonomy must have the rights necessary to give effect to this autonomy.

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