Kamil Mamak, Ph.D. in Law, Ph.D. candidate in philosophy. He is an author of blog criminalfuture.com, which cover topics on the edge of law, philosophy, and technology. He is an author of several dozen articles and book chapters in criminal law and philosophy. His book "Future of Criminal Law" (in polish) published by Wolters Kluwer Poland was sold out twice. He is a member of the board at Cracow's Institute of Criminal Law. For five last years, he was working at Jagiellonian University Law Clinic.
Ethical dilemmas and Self-driving Cars: perspective of Criminal Law
The rise of the autonomous robots, especially cars, bring us to the point in which we feel to obliged to answer some question connected with the ethical and legal dilemmas. There is the discussion on how to program crash algorithms in autonomous or self- driving cars. A lot people from the wide range of scientists tries to put some light on the problem. There are arguments pointed out by philosophers, ethicists or lawyers. I think there is a common belief that we should prepare some ethical solutions which will be incorporated into cars algorithms.
The recent fatal crash involving Uber's autonomous car clearly visualized to the public that the problem is real. Online survey Moral Machine by MIT is collecting data about that issue. There are scenarios in which we have to decide how the car should behave. Sometimes, who should die. The far-reaching aim of the survey - and the discussion - is to prepare useful guidance. One of the problems which I covered in my Ph.D. thesis is connected with that issue. I was looking at it from the perspective of criminal law. I found out that criminal law sets some impassable boundaries for imposing ethical solutions in crash algorithms. One of the specific limitations is that we cannot differentiate any life based on its "quality". For example, criminal law forbids to legally accept provisions in which young child is more valid for the society from middle-age man.
The other issue is that in criminal law there is no possibility to count the number of people who should die. Life - from the perspective of law - is uncountable value. In that sense, there is a problem with the utilitarian approach which seems to be widely accepted as a solution in that kind of dilemmas. Criminal law is also giving some hierarchy of values which should be used in algorithms. For example, life is above health, health is above property. The other issue is that, even if we finally legally decide how algorithms should behave, from the perspective of criminal law, we will be forced to accept self-preservation instinct. It means that, it will never be forbidden to hack our own car to reprogram crash algorithms in that way, we – as an owner - will be always privileged during crush.
The last thought could be unacceptable by the public because it means that "the more expensive car you bought, the better protection you have". My considerations are based on the polish doctrine of criminal law, but there are a lot of similarities in principles among civil law countries.