We continue a series of articles by Gian Marco Solas, EU qualified Lawyer and Leading Expert at the BRICS Competition Law and Policy Centre, on the intersection of competition law, AI and sustainable development. "This is a comment about the European Union AI policy within the sustainability realm, the renewed idea of a perpetual motion machine or the best of all possible worlds and an experimental proposal for peace," states the author. The first part of the series focused on the most relevant provisions of the EU AI Act. The second part examines EU AI Act in the context of the renewed idea of a perpetual motion machine as a complex science approach to policy and legal matters.
Part II – “Love”
The renewed idea of a perpetual motion machine or the best of all possible worlds
The life sciences paradox concluding Part I introduces to the complex science and universal ethics approach to policy making and legal practice and to the idea to analyze such activities under natural and mathematical rationality. The effort is not just needed to support the renewal of the idea to build a (human centric) “perpetual motion machine” for Planet Earth, one that could resolve positively and truthfully the said life sciences paradox. But, also, to provide an additional, alternative and optimistic interpretation of the laws of nature - and in particular thermodynamics and the direction of natural events - to try and support future policy and legal efforts.
1. Direction(s) of natural events, life sciences and the perpetual motion machine model
The idea of a perpetual motion machine dates back at least to the Middle Ages and is an hypothetical machine that could move imperturbed and do work potentially infinitely with its own energy. It has fascinated some of the most brilliant minds and enriched some of the most important scientific debates, although there seems to be some form of consensus that it is not possible to build this machine as according to the laws of physics nature tends to chaos. Yet, the discussions around this idea have undubiously led to significant advancements such as the ones derived from the laws of thermodynamics and ensuing industrial revolutions. Such a machine could hypothetically transform entropy (that is energy or mass wasted, chaos, abandonment, etc.) into new work or energy or matter, which work necessarily produces new entropy, that then could be again tranformed and so on. The concept of entropy allows to recall the direction of natural events and the science(s) of life on Earth. Two contrasting views can be recalled in this respect: one, let’s call it “pessimistic”, based on a strict interpretation of the second principle of thermodynamics, according to which nature tends to disorder as entropy increases and moves in one direction in time only, which is not reversible; the other, let’s call it “optimistic”, based on a more general assessment of human cultural, social, economic and scientific progress, according to which information increases with time, and so does society, legal systems and the economy. The first view is comforted by more or less three hundred years of scientific efforts, both theoretical and experimental, in relation to both micro and macro natural events. Under this view, a perpetual motion machine is not possible as - in an isolated system - it would violate either the first or the second principle of thermodynamics or both. The second view is rather based on thousands of years of social, economic and scientific progress that have objectively brought humans from living in caves to inventing the wheel and taming fire. To then having the possibility to travel and being instantly interconnected worldwide through groundbreaking technologies and enjoy life. Under this view, and with some additional comfort from the second and third principle of thermodynamics - that is that entropy has statistical and potentially constant value - this machine would seem possible in reality. This view is based on the idea that there cannot be perfectly isolated systems on Planet Earth or more in general, and that humans have been given the capacity not just to study but also to transform entropy into new work, energy and matter. The goal of the mental exercise is not necessarily to invent or build a perpetual motion machine, but rather to support the complex science approach to policy and legal matters and potentially reach a Kardashev-level 1 of civilization, or the perfect competition model.
2. Universal mathematical and life sciences’ approach to policy making and legal practice
In order to understand whether the last hypothesis can be validated and potentially implemented, it is important to first discuss its mathematical and philosophical foundations. The idea to assess policy making and the law under natural mathematical and logical terms is not new in the European (and more general) discourse, and should come to no surprise. Mathematics, the “language in which God has written the Universe”, portrays the maturity of a science. It already has appeared many times in the philosophical and policy discourse, leading to significant developments for human knowledge and society. From Aquinas to Pierre de la Ramée to Locke to the said Leibniz to Montesquieu to Max Planck to Weber to the “more modern” law & economics school of thought and others: all have inquired about the mathematical dimension of human law and rational decision making. This does not mean that the contrast between the pessimistic and optimistic views in life sciences can be resolved easily under the current circumstances. In fact, reality presents the paradox not just in the EU AI Act but more in general, seemingly in the form of binary mathematics, the one that uses only two symbols: “0”, false; and “1”, true. The “evolutionary” paradox is that along with such scientific, social, human and economic progress, humans have been capable of producing and threaten each other with weapons of total destruction that could wipe off humanity and Planet Earth in a matter of hours. This situation projects a possible “lose-lose-lose” scenario, where not only both (or more) parties to a conflict but also the whole humanity and Planet Earth would lose. Let’s call this the scenario of “death” or “Apocalypse”, the degeneration of the “pessimistic” view recalled above. In this context, the fact that AI is a technology capable of accelerating and / or generating natural and human events at much faster speed than human intelligence raises quite some concern and supports the idea to define a “risk-based” approach to regulate AI. With one - very important – consideration to be done, that humans have the capability of programming AI, shape its direction and “pull the plug” in case things go wrong or risks are material. Some may call it “human conscience” or “rationality” or even “categorical imperative”, which has to do with universal ethics, life on Earth and the role of humans in the nature. The mathematical idea stemming from this approach is rather a “win-win-win” situation, where every party in the game can win, enjoy life and be happy, and the game can continue potentially infinitely like a perpetual motion machine. Let’s call this the scenario of “life” or, to tell it with Leibniz, the “best of all possible worlds” scenario, the maximum expression of the “optimistic” view expressed above. This approach suggests to consider not just the EU AI Act but all policies under these terms, with a view to solve the above paradox and potentially and realistically lead to rational and sustainable decision making. That means, in front of the above binary prospect, to actively pursue truth with the mathematics of justice and universal love: that, to tell with Aristotle, where the whole is greater than the parts; or, where 1+1 can also make 3 and more as we know from natural families or else. Provided that the given direction and timing of life is followed.
3. Additional indications from EU law on the direction for AI and sustainable development
In practical terms, the above means to consider and potentially agree on a “competitive and collaborative game” where all parties can win by becoming the “historical best version of themselves”. That is, for instance, by modelling agreements and conflicts settlement under the adaptive “1+1=3” rule. Interestingly, this also seems to recall art. 101.3 of the Treaty on the Functioning the European Union (1), which defines pro-competitive agreements under EU law to exempt them from the prohibitions on cartels and other anti-competitive agreements. This reasoning should not be too difficult as the analysis of the AI Act and its “risk-based” and “human-centered” approach reveal that the EU institutions - despite the above “life science paradox” - seem to be already aware of some physical and mathematical effects of the law. For instance, when they discussed – in par. 6.1.3 of the AI Act Impact Assessment – the costs and burden of such regulatory regime. This effort is by all means appreciable although the assumptions made therein cannot yet be comforted by empirical observations related to the effects of such legislation, as this has not yet entered into force. In the lack of clear definitions and empirical observations, it is also not possible - sic stantibus legibus - to feel enough comfort as to the “human-centric” and “ethical” dimension of the AI Act, although some suggestions may be derived from the Impact Assessment.
The fact that AI algorithms can be both “rules-based” and “learning-based” allows to wonder whether it is not possible to build an algorithm encoding human law and fundamental natural rights, learning from previous historical legal experience to potentially build the best of all possible worlds following the model of an “human centered perpetual motion machine” at least as benchmark. Imagine the AI application of, say, paragraph 1 and 5 of article 3 of the Treaty on the European Union, or art. 47 and 48 of the EU Charter of Fundamental Rights (2). The experiment could defy the pessimistic version of the second principle of thermodynamics! Or, to even be more in line with European history and traditions, to “code” the second most fundamental rule of our civilization, to “love your neighbor like yourself”. As AI would seem able to generate and potentially effectuate human law, this could evidently have tremendous positive impact not just for legal orders and the nature more in general, but also for legal practitioners, governmental officials or academics working with it. Certainly, for the attainment of the said UN sustainability goals or more generally the enforcement of the UN Charter and survival on and of Planet Earth; but, also, more practically, freeing up substantial amounts of time that could be dedicated to conscious experimental research and empirical natural observations. An experimental approach to social sciences would require working on and living this idea, as the momentum urges for it at least as much as the enactment of an AI Act.
(1) Par. 1: “The Union's aim is to promote peace, its values and the well-being of its peoples”. Par. 5: “In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.”
(2) Article 47 - Right to an effective remedy and to a fair trial. Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.
Article 48 - Presumption of innocence and right of defence. 1. Everyone who has been charged shall be presumed innocent until proved guilty according to law. 2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.
