scholarly journals Artificial Intelligence ante portas: Reactions of Law

J ◽  
2021 ◽  
Vol 4 (3) ◽  
pp. 486-499
Author(s):  
Rolf H. Weber
Keyword(s):  
Artificial Intelligence ◽  
Decision Making ◽  
Human Rights ◽  
Soft Law ◽  
Legal Principles ◽  
Hard Law ◽  
Regulatory Interventions ◽  
Regulatory Models

Artificial intelligence and algorithmic decision-making causes new (technological) challenges for the normative environment around the globe. Fundamental legal principles (such as non-discrimination, human rights, transparency) need to be strengthened by regulatory interventions. The contribution pleads for a combination of regulatory models (hard law and soft law); based on this assessment, the recent European legislative initiatives are analyzed.

scholarly journals BALANCING SOFT AND HARD LAW FOR BUSINESS AND HUMAN RIGHTS

2018 ◽  
Vol 67 (4) ◽  
pp. 961-986 ◽  
Author(s):  
Barnali Choudhury
Keyword(s):  
Human Rights ◽  
Soft Law ◽  
Business And Human Rights ◽  
Hard Law ◽  
The Impact

AbstractIn the wake of increasing corporate disasters, there has been an urgent need to address the impact of business on human rights. Yet business responsibilities for human rights are mainly voluntary and best understood as ‘soft law’. Recently, however, States have begun negotiations for an internationally binding treaty in this area, suggesting that there is a need to turn to ‘hard law’ to increase the efficacy of business and human rights (BHR) initiatives. This article argues that because soft and hard law concepts are not dichotomous, BHR governance need not become ‘hard law’ to be effective. Rather ‘hardened’ soft law instruments can be equally effective.

scholarly journals Hard and Soft Law Preferences in Business and Human Rights

AJIL Unbound ◽  
2020 ◽  
Vol 114 ◽  
pp. 168-173
Author(s):  
Kishanthi Parella
Keyword(s):  
Human Rights ◽  
Soft Law ◽  
Business Organizations ◽  
Business And Human Rights ◽  
Hard Law ◽  
State Actors ◽  
Regulatory Landscape

States and non-state actors, such as business organizations and NGOs, have varying preferences among regulatory options in business and human rights. Some actors prefer soft law governance while others advocate for legally binding solutions at the national and international levels. In this essay, I explore some of the factors that may explain why state and non-state actors hold these diverse preferences. I conclude that while some of these preferences may be attributable to the unique advantages of soft law or hard law, other preferences likely depend on the effects produced by the interaction of both types of law within the broader regulatory landscape.

scholarly journals Hard Choices and Soft Law: Ethical Codes, Policy Guidelines and the Role of the Courts in Regulating Government

1969 ◽  
pp. 867 ◽  
Author(s):  
Lorne Sossin ◽  
Charles W. Smith
Keyword(s):  
Decision Making ◽  
Decision Makers ◽  
Soft Law ◽  
Critical Inquiry ◽  
Ethical Codes ◽  
Law And Policy ◽  
Hard Law ◽  
Judicial Scrutiny ◽  
Critical Consideration

The authors examine a number of examples of "soft law": written and unwritten instruments and influences which shape administrative decision- making. Rather than rendering bureaucratic processes more transparent and cohesive, or fostering greater accountability and consistency among decision-makers, "soft law" in this context frequently reinforces artificial divisions. Moreover, it insulates decisions and decision-makers from the kinds of critical inquiry typically associated with "hard law." If it is to realize its potential as a bridge between law and policy, and lend meaning to core principles — like fairness and reliability — soft law ought to be subjected to similarly critical consideration. The authors maintain that doing so allows one to preserve soft law's promise of flexibility. Moreover, one avoids falling prey to the misleading dichotomies soft law tends to bolster in the absence of critical administrative, political, and judicial scrutiny.

scholarly journals Strengthening legal protection against discrimination by algorithms and artificial intelligence

2020 ◽  
Author(s):  
Frederik Zuiderveen Borgesius
Keyword(s):  
Artificial Intelligence ◽  
Decision Making ◽  
Human Rights ◽  
Data Protection ◽  
Legal Protection ◽  
Indirect Discrimination ◽  
General Rules ◽  
Data Protection Law ◽  
The Right

Algorithmic decision-making and other types of artificial intelligence (AI) can be used to predict who will commit crime, who will be a good employee, who will default on a loan, etc. However, algorithmic decision-making can also threaten human rights, such as the right to non-discrimination. The paper evaluates current legal protection in Europe against discriminatory algorithmic decisions. The paper shows that non-discrimination law, in particular through the concept of indirect discrimination, prohibits many types of algorithmic discrimination. Data protection law could also help to defend people against discrimination. Proper enforcement of non-discrimination law and data protection law could help to protect people. However, the paper shows that both legal instruments have severe weaknesses when applied to artificial intelligence. The paper suggests how enforcement of current rules can be improved. The paper also explores whether additional rules are needed. The paper argues for sector-specific – rather than general – rules, and outlines an approach to regulate algorithmic decision-making.

scholarly journals Soft Law in Jus in Bello and Jus ad Bellum: What Lessons for Business and Human Rights?

AJIL Unbound ◽  
2020 ◽  
Vol 114 ◽  
pp. 174-178
Author(s):  
Alonso Gurmendi Dunkelberg
Keyword(s):  
Human Rights ◽  
The Other ◽  
Soft Law ◽  
Recent Experience ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Direct Participation ◽  
Business And Human Rights ◽  
Hard Law ◽  
The One

This contribution, rather than focusing on the debates within the Business and Human Rights (BHR) domain itself, offers a comparison between soft law regulation in the BHR context, on the one hand, and in the jus in bello (JIB) and jus ad bellum (JAB) contexts, on the other. Specifically, this contribution looks at the recent experience in JIB and JAB wherein states and other actors have tried to address the indeterminacy of treaty law provisions through soft law proposals that advance a disputed interpretation of hard law, producing legal uncertainty and scholarly debate. I use as examples the 2009 Interpretive Guidance on Direct Participation in Hostilities and the 2012 Bethlehem Principles as a way to extract lessons for the codifying momentum underway in BHR.

scholarly journals La función conjetural del Derecho reforzada por los algoritmos en la era de big data.

2020 ◽  
Vol 6 (2) ◽  
pp. 162-185
Author(s):  
Matías Mascitti
Keyword(s):  
Artificial Intelligence ◽  
Decision Making ◽  
Big Data ◽  
Natural Language ◽  
Search Engines ◽  
Common Law ◽  
Civil Law ◽  
Legal Principles ◽  
Predictive Function ◽  
Artificial Intelligence Systems

Through this paper we aims to illustrate the increase in the power of the predictive function of Law that will be generated by the use of intelligent integral legal search engines (IILSE). They will allow a more effective strategic conjectural analysis by virtue of the sociological, psychological, normative and axiological information that they will provide to the legal operator for their decision making. To this end, we use an interdisciplinary analysis perspective of Law, highlighting the advancement of artificial intelligence systems in a transparency society where data is a valuable asset. The IILSE integrated with an efficient natural language and with algorithms created to obtain the aforementioned interdisciplinary information will be a valuable aid instrument for: greater linguistic precision, normative interpretation, weighting of legal principles, prediction of judicial sentences, democratization of Law and a significant decrease in the differences in the practical effects in force between the traditions of Civil Law and Common Law.

scholarly journals Binding or Non-Binding: Analysing the Nature of the Asean Agreements

2021 ◽  
Vol 21 (1) ◽  
pp. 100-123
Author(s):  
Harsh Mahaseth ◽  
Karthik Subramaniam
Keyword(s):  
Decision Making ◽  
Soft Law ◽  
Recent Past ◽  
Economic Community ◽  
Hard Law

Summary ASEAN has gradually attempted to assert itself as a diplomatic force to reckon with. However, over the recent past, it’s ability to deal with regional issues and situations has come under scrutiny. This paper argues that the reason behind such lack of clear decision making arises from the large presence of Soft Law nomenclature in ASEAN agreements, resulting in the lack of any Hard Law obligations on these nations. The paper attempts to highlight the lack of clarity in the nomenclature used in ASEAN agreements, the problems that arise from the same, and the possible reasoning behind the usage of such nomenclature. In conclusion, the paper provides a few solutions and recommendations that could be adopted by the ASEAN community of nations to establish themselves as an economic community.

Hard Law or Soft Law—Does it Matter?

2018 ◽  
Author(s):  
Angelika Nußberger
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Soft Law ◽  
Member States ◽  
Black And White ◽  
European Consensus ◽  
Hard Law ◽  
European Court ◽  
The Difference ◽  
Unsolvable Problems

The European Court of Human Rights takes both hard law and soft law seriously, especially when it is necessary to adapt the wording of the European Convention on Human Rights to changed conditions in European societies and to explore what is called the ‘European consensus’. Nevertheless, the Court does not treat hard law and soft law in the same way. When clashes occur, it takes hard law more seriously than soft law. This finding can be linked to the acceptability and legitimacy of the Court’s jurisprudence. An interpretation of the Convention creating irreconcilable treaty obligations is generally not acceptable. An interpretation of the Convention going less far or further than rules of soft law might be criticized, but does not create unsolvable problems for member States. Thus, while there is no black-and-white scenario, the difference between hard law and soft law still matters in the Court’s jurisprudence.

scholarly journals The Commitment Curve: Global Regulation of Business and Human Rights

2018 ◽  
Vol 3 (2) ◽  
pp. 157-185 ◽  
Author(s):  
Tori Loven KIRKEBØ ◽  
Malcolm LANGFORD
Keyword(s):  
Political Economy ◽  
Human Rights ◽  
Regulatory Reform ◽  
Soft Law ◽  
Global Business ◽  
Global Regulation ◽  
Political Feasibility ◽  
Business And Human Rights ◽  
Current State ◽  
Hard Law

AbstractThe divide between hard law and soft law approaches to global regulation of corporations in relation to human rights is partly based on empirical assumptions. Taking a step back, we assess the claims concerning the current state of global regulation and political feasibility of hard law approaches. Moving beyond the usual suspects, we map 98 existing standards that regulate corporations and find a great variation in how different sectors treat human rights and accountability issues. Turning to the explanation of the current jungle of global business and human rights regulation, we contrast and test dominant and competingexpressivetheories with a consequentialistcommitment curve, in which corporations and states seek to minimize human rights commitments. We find support for all approaches to regulatory reform, but argue that greater attention should be given to the consequentialist insights, and how political economy can be leveraged to strengthen regulatory outcomes.

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