Legal Narratives of Identification - The Curious Case of Children's Storybooks

It should hardly come as any surprise that children's storybooks are rich sources of legal normativity and sources for legal analysis (see for example, the scholarship of Desmond Manderson and Shauna Van Praagh). In a previous posting, I touched upon the linkages between certain children's stories and their emphasis on breaking norms when doing so would be justified in order to stop a greater harm from being perpetrated.

In this post, I want to switch gears and address another series of considerations that have cropped up as I have been reading a host of children's books to my daughter. Given her rather young age, my spouse and I have devoted a considerable amount of time to reading my daughter books that emphasize identification and characterization as a central theme. A key example of this is the Usbourne "touchy-feely" picture book collection - particularly, the That's Not My Baby series. This series of picture books are aimed at developing the sensory and language awareness of infants and toddlers.

In these particular books, the narrative is a simple one, a little mouse goes out in search of a baby it identifies with and calls its own. With each baby it comes across, the mouse identifies something that a baby is wearing or possesses that distinguishes it from the baby it is searching for. Each item that is identified by text has a particular texture that the child who is being read the book can touch and associate with - e.g. "That's not my baby, her teddy [bear] is too fluffy"; "That's not my baby, her blanket is too silky"; "That's not my baby, her mittens are too fuzzy."

While the primary objective of this book (and others) as previously stated is to develop a child's sensory and language awareness, I argue that this development can have considerable implications later in life when we consider issues of identification of objects and people who are associated with such objects within the litigation process. These books help to train children to more acutely identify individuals and the objects they are wearing or possess, rather than simply latching on to more simple and base characterizations rooted in racial categories. When one looks to the sample pages of That's not my baby, one notes that the author, Fiona Watt avoids having the mouse identify the baby in question by skin colour, but looks to other identifying objects and/or textures that identify them as being distinguishable from the baby the mouse is searching for. This is not to suggest that identifying an individual's ethnic background is altogether invalid if coupled with other identifiable characteristics - however when race becomes the sole identifying feature, there may be a higher propensity for inaccurate identifications and worse, in the context of criminal prosecutions, such identifications may lead to wrongful convictions.

The need for greater accuracy in identifications was highlighted to me in one of the more poignant moments I experienced during my law school education. During criminal procedure, my professor wanted to sensitize the class to the fallibility of human perception with respect to witness identification and its ramifications on the rights of the accused. During one class, an individual who had been sitting amongst us for a certain duration of the lecture (but who was clearly someone no one likely recognized as part of our class prior to that day), got up and walked down the middle aisle that separates the classroom. The individual gave the professor a manila envelope, shook his hand, and then exited the classroom. From the time the individual stood up, walked to the front of the class and then left, roughly 10 to 15 seconds had probably elapsed. The envelope contained sheets of paper that were passed out to us. Each sheet contained a series of questions aimed at determining the extent of our ability to identify particular identifying features about this person, including their ethnic background, gender, what they were wearing, etc. The one thing we could all identify was that this person was African-American. Most correctly identified him as a male, although one or two didn't. As to this gentleman's other identifying features and details about what he was wearing, we were far from unanimous or correct.

This gentleman's experience with wrongful identifications was however far from academic. His name was Neil Miller. Some years prior, he had been wrongfully identified by a rape survivor and was convicted on the basis of her false identification which was also assisted with some improper influence by law enforcement. Thanks to subsequent DNA testing, Miller was freed but not before enduring several years of life in prison which took its toll on him.

Eyewitness and victim testimony are not going to go away, nor should they be expected to. But as my classroom experience perhaps demonstrates, misidentifying an individual can have serious ramifications on the liberty of another. Part of this is rooted in the poor training (if any) many of us have (including myself) in identifying critical details about others we may see rather quickly that move beyond the "basics" of race and gender (and in the case of the latter - at least one of my fellow colleagues in class identified Mr. Miller as a woman).

While identifying details may not come naturally to many of us, it can be cultivated. Perhaps by actively training individuals from a very young age to be observant and critical in their observations and maintain this skill into adulthood, we may be able to foster their capacities to provide more detailed and accurate identifications when called upon to do so.

It is worth noting that the development of this skill is not just relevant or important to individuals identifying suspects in a police line-up followed by testimony in court. It may be useful when a person is required to provide critical identifying information or characteristics in helping to find an abducted child or assisting law enforcement in tracking a wanted criminal.

Ineffective Assistance of Coaching

Dutch long-track speed skater Sven Kramer had another gold medal within his grasp in the 10,000-metre race this week. However an error by his coach led Kramer to an unfortunate disqualification. Each race involves two skaters, one of whom starts in the inner lane and the other on the outer lane. After each lap, the skaters switch lanes. As Kramer had switched from the inner lane to the outer (he had already been skating for an extensive period during this race), his coach Gerard Kemkers, momentarily confused, quickly and wrongly told Kramer to move back into the inner lane. Kramer did so and continued to race. After finishing (and otherwise winning) the race, Kramer was informed by Kemkers that he was disqualified and the reasons why.

Kramer was naturally upset and Kemkers, upon realizing his mistake, was devastated by his own error. It's worth noting that Kramer is a renowned champion at long-track speed skating and was primed to win the gold medal, barring any other mishap that might have happened notwithstanding Kemkers' faulty advice.

The application of the rules in sporting events can be quick and it can be harsh and in some cases perhaps excessively punitive. Where athletes commit a serious error due to their own negligence resulting in a disqualification, the decision will likely be considered 'legitimate'. However, where, as here the decision to change lanes was the result of the coach's improper advice, a complete disqualification seems less than fair or appropriate.

Although the rules that normally apply in the state-based legal system may or may not fit so neatly for various reasons within the sporting context not the least of which include the types of interests that are stake, both systems arguably share certain common features such as basic procedural and adjudicative fairness (or at least pay lip service to it). Take for example the instance of a criminal trial where a defendant is convicted in no small part due to failures on the part of his/her counsel to provide adequate representation. On appeal, if the defendant can demonstrate that his/her trial counsel was incompetent and the errors committed on account of such incompetence resulted in a miscarriage of justice, the conviction will be overturned and a new trial will be ordered. Proving incompetence however is a rather difficult task in practice. As a Supreme Court of Canada decision in one case attests, there is a

a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment.

Returning to Kramer and Kemkers for a moment, athletes are like litigants in the legal process seeking to acquire a positive result. A sporting event can be like a trial or a hearing, some are long and drawn out, others short and brief. In all cases, they seek to get to the "promised land" through the assistance of "counsel" - the analogue for which in the sporting context is the "coach" or "trainer". A bond is built - one of trust. Like legal counsel, the coach/trainer helps to guide the athlete through their expertise of the process including both technical requirements and/or artistic nuances (as the case may be). Furthermore, as in litigation, the coach or trainer plots out certain strategies and tactics, some will work and some may not. Ultimately, in following such predetermined strategies and tactics an athlete like a client cannot thereafter claim that the result was unjust solely on the basis that a reasonable strategy failed to achieve the aims it set out to achieve.

However, what happens or ought to happen when a coach offers a rather sudden and quick yet unreasonable bit of advice which the athlete has little time to reflect on, but because of the established relationship of trust decides to follow it in the heat of the moment and in so doing culminates in a patently adverse and unfair outcome for the athlete?

Kemkers, it should be noted, has worked with Kramer on numerous occasions and through this relationship Kramer has won numerous competitions. Kemkers is himself a former Olympic bronze medalist in speed skating. His experience thus makes the error that much more unreasonable and below the standard expected of someone of his caliber and expertise. Furthermore, given his record in helping Kramer and his experience of the sport as a former speed skater, Kramer had little reason to doubt Kemkers' advice in the heat of the moment.

Assuming Kramer's disqualification was unjust and extreme under the circumstances, what are the alternatives? In the appellate litigation context, when a criminal defendant is able to successfully demonstrate that his/her trial counsel was ineffective, the remedy is normally to order a new trial. Except where it might conflict with other rules, one remedy might have been to allow Kramer to skate the whole race again, and perhaps alone. After all, another country's skater shouldn't be forced to re-race 10,000 metres just because Kemkers made an error. If this remedy would be considered reasonable, Kramer would likely deserve at least some time to recuperate physically before racing the 10,000 metres.

Given that Kramer completed the entire race, another alternative might have been to simply penalize him with a time deduction, rather than a complete disqualification. This might have cost Kramer the gold medal but may have kept him in medal contention depending on the extent of the time deduction.

All said and done, Kramer has stated that he has moved on and will retain Kemkers as his coach in light of their otherwise successful history together and the medals their collaboration has given rise to. Still, one cannot help but think that rules relating to such particular errors ought to be reconsidered to produce more just and equitable results.

Sources:

Raf Casert, "Sven Kramer Lane Change Error Loses Him Gold Medal" Huffington Post (24 February 2010), online: http://www.huffingtonpost.com/2010/02/24/sven-kramers-lane-change-_n_474601.html

Raf Casert, "Sven Kramer Keeps Coach After Devastating Gaffe" Huffington Post (24 February 2010), online: http://www.huffingtonpost.com/2010/02/25/sven-kramer-keeps-coach-a_n_476126.html

Michael Dew, "Ineffective assistance of counsel as a contributing cause of wrongful conviction" (19 November 2006), online: http://www.legaltree.ca/node/643#_ftnref65

R. v. G.D.B., 2000 S.C.C. 22, [2000] 1 S.C.R. 520.

http://www.thejusticeproject.org/national-agenda/court-rules-sleeping-lawyer-violated-defendants-right-to-a-fair-trial/

Announcing Identity

My previous blog post, Citizenship of Sport, focused on the choices made by athletes regarding their construct of nationality and the associated ability to compete in the Olympic games. After watching the first ten days of the Vancouver Olympics television coverage, I have been struck by the ways in which the media – particularly sports announcers – has constructed the identities of athletes in a variety of ways. For the purposes of this article, the media coverage discussed is from NBC.

During the first three completed figure skating events – men’s figure skating, pairs figure skating, and ice dancing – the announcers highlighted the personal stories of the athletes. As the audience, we learned of the injuries suffered by some athletes, the family dynamics of others, the marital status of still others, and even saw childhood pictures of others. We saw their performances, heard the critiques of announcers, and could easily feel the tension and joy or sadness of these athletes when their scores were announced. And yet, throughout all of these stories, the emphasis was placed first on identifying the athletes as people and humanizing them through the explanation of their personal lives, particularly the struggles they endured for the their sport and their dreams of being Olympic athletes.

Through the medium of television announcers as intermediaries, the social laws and norms of dedicated athletes punctuated the norms of the viewing public. It would perhaps be difficult for viewers to imagine volitionally living in a separate dormitory from one’s spouse and sharing meals in a communal dining hall, yet the story of Shen and Zhao, who do this on a daily basis in order to comply with the laws of their training system, made it understandable, if not indeed praiseworthy for their dedication. Interestingly, what was not emphasized in the process of storytelling by the media was nationality of the athletes involved in the skating events. Certainly, nationality was mentioned, but it was not the paramount identifier; instead, names and stories were. These athletes were identified and defined to the viewers through their personalities and struggles, and we supported them out of solidarity or sympathy, not necessarily nationality. In many ways, this can be seen as an outgrowth of the idea of citizenship of sport in that it validates the athletes’ identities as skaters first because of the sacrifices which these athletes made for their sport.

In sharp contrast, the announcers covering the cross-country skiing events have largely identified the nationality of the athletes before mentioning their names. Indeed, during these broadcasts it has not been uncommon to hear a reference to the country for which the athlete competed as the identifier, with little personal information made available to the audience. Of the information made available, much focused on the athletes’ injuries either before or during the competition and not on the deeply personal and compelling stories of the athletes themselves. Often, the focus of information was on the history of the athletes’ countries successes and failures within the particular competition and even against other countries in the competition. The sense of identity for the athletes, at least from the point of view of the audience, thus was shifted to their country, making it easier in a sense for the audience to decide on a favorite athlete due to national allegiance. This method of identity conveyance is also arguably a way to downplay the agency of the skiers as individual athletes, emphasizing instead their identity as part of a larger state apparatus and history in the Olympic games.

While some of this difference in identity transmission could be attributed to the personal announcing styles of the sportscasters for each event, I would argue that there is more to discuss in this difference. Certainly, there is a way to view this difference as an outgrowth of the duality of the Olympics themselves; athletes compete in their individual capacities for their countries, thus there is an allegiance to both the athlete and the country on the part of the audience. In conjunction with the idea of citizenship of state, however, one can view this difference as emblematic of the dichotomy of understanding of the relationship between athlete and citizenship. The method of conveying identity used in the figure skating example clearly supports the conception of an athlete as an individual (or pair) who has dedicated himself to his selected sport to the point where the sport is a method of identity. In this situation, the choice of competing for another country is understandable. However, the method of conveying identity used in the cross-country skiing example clearly supports the idea of state-based citizenship as the defining force in an athlete’s identity and drive, with the idea of being a skier as secondary to that of being a citizen of a particular country.

Thus, we see a more subtle way in which citizenship of sport is introduced to the viewing public through the medium of sports announcers. It is through this medium that the audience also understands and interacts with the laws and norms of a sport which requires a level of dedication and sacrifice that would be outside the realm of traditionally accepted norms in mainstream society.

The Unbearable Lightness of Sis/Bro

John and Sinead Kerr; Photo: Reuters

Okay, this post is going to have to be a little delicate in nature. On our sensibilities, and...on our stomachs.

On Tuesday (February 23, 2010), the big story was the well-deserved gold medal victory of Canada's own Tessa Virtue and Scott Moir, the previous night at the 2010 Winter Olympic Games in Vancouver. Or perhaps it was even the silver medal finish of Meryl Davis and Charlie White. Right?

Not so much if you read some of Wednesday's Facebook status messages of individuals who were dismayed upon recently discovering that more than a few ice dancing pairs were comprised of siblings (this did not include any of the medalists). Yes, that's right, brothers and sisters doing the tango and/or other close-quarter ballroom-style dances on ice. Just how close? Take a look at the image above.

Before I proceed any further, let me be absolutely clear. I am in no way suggesting that any sibling-comprised ice dancing pairs are in any way, shape, or form actually involved or otherwise engaged in any type of romantic relationship on or off ice. They are merely acting/simulating a role that suggests a passionate and romantic relationship for the purposes of the performance solely.


Notwithstanding the discomfort it may give to people to see two siblings simulating a romantic couple in a passionate dance, present company most certainly included, I think it is worth stressing a couple of positive things about these dancers.

Like all other ice dancers, they have to train for rather long hours and devote a great deal of time, effort and hard work to perfect their art. Add to that, as siblings they may have to pretend or simulate a romantic relationship requiring them to forget that they're siblings during their ice dance performance - and perhaps just as challenging or more so - to get other people to forget it as well. Some sibling ice dance pairs might tell alternative stories that lead them away from the more romantic narratives traditionally associated with performances in an ice dance competition. See the Wall Street Journal article by Geoffrey A. Fowler for more of these dancers' perspectives on this and the narrative strategies they employ.

Furthermore, from the perspective of critical legal pluralism, such ice dance pairs are (intended or not) challenging the normative expectations of (at least probably a fair portion of) the viewing public that frowns upon the notion that such pairs should even try and simulate a romantic aesthetic on ice. More than just an act of resistance (if at all), they are advancing an alternative vision of legal normativity within the context of ice dancing competitions - one that demonstrates that siblings can skate together in an artistic manner while hinting at a romantic interplay between two characters rather than as the dancers themselves.

Still, this goes up against some rather powerful norms against siblings engaging in such representations. Let's leave aside for the moment any state-based norms that might prohibit such performances (I know of none) - this post is more about legal normativity in the legal pluralistic sense that recognizes the impact of non-state or societal norms (as legal norms) on human conduct. One non-state legal norm in question might be articulated as follows: "Thou shall not portray within an artistic medium a character in a romantic relationship if your character's lover is played by your real-life sibling."

There is probably more than one good reason why sibling actors for example do not play romantic roles opposite one another. Apart from the mental (and emotional) acrobatics it would take for an actor to forget that they are kissing their sibling in a manner that most, in like circumstances, would find revolting, there would likely be a commercial backlash that would come in the form of a boycott at the very least.

The analogy of romanticism in ice dancing to screen acting may seem like an unfair one. After all, ice dancers aren't kissing during their performance (at least in none of the few that I have seen). Yet, the "problem" has more to do with the substance (two siblings portraying non-familial romantic partners) than the form in which that simulated romantic relationship expresses itself (through kissing or close contact dancing). One form - kissing - might stimulate more revulsion than say two siblings doing the tango on ice, but perhaps it's more a matter of degree.

Legal norms emerge from within a particular cultural space. Some are distinctly reflective of a particular time and jurisdictional mindset, while others are more transcendent. Time will tell whether the ice dancers that are the subjects of this post are on their way to changing legal normativity by refusing to succumb to the types of norms suggested above. For now, I think more than a few people are thankful that Virtue and Moir aren't siblings.


Sources:

Geoffrey A. Fowler, "That's Your Sister?" Wall Street Journal (19 February 2010), online:
http://online.wsj.com/article/SB10001424052748703315004575073322907511564.html?mod=WSJ_olympics_LeadStoryCollection

Roderick A. MacDonald, "Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism" (1998) 15 Arizona Journal of International and Comparative Law 69.

Image: Photo of John and Sinead Kerr; Photo by: Reuters.

Citizenship of Sport

The Vancouver Winter Olympic games have raised many interesting issues, which will be discussed in a series of blog posts. The first matter which I would like to focus on, due primarily to its cross-cutting nature, is the relationship between citizenship and sport which has been manifested during the Vancouver games.

Traditionally, the Olympic games are considered showcases of both national pride and the unity that is shared by athletes regardless of their nationality or beliefs. This duality was apparent during the Opening Ceremonies, when athletes processed as part of national contingents and later collectively took the Olympian’s creed, which cuts across nationality to stress the shared beliefs and goals of those talented athletes who are able to call themselves Olympians. A touching demonstration of the universality of the Olympic spirit were the arm bands worn by athletes from all nationalities in order to honor Nodar Kumaritashvili, the Georgian luger who died during a practice run prior to the Opening Ceremonies.

In addition to these public and non-controversial manifestations of the universality of athletics, the Vancouver games – and the athletes who have participated in them - have also highlighted the more controversial idea of citizenship of sport, by which I mean the athlete’s identity as an athlete trumping his or her identity as a citizen or national of a particular state. During the Opening Ceremonies, there were a remarkable number of athletes who were competing for states not usually associated with winter sports. The stories of these athletes were noteworthy in that some are dual nationals and, while they learned their sport in one country of their citizenship, they nevertheless chose to represent the other country of their citizenship as Olympians.

As the games unfolded during week one, other stories of citizenship of sport have emerged. Some continue to reflect the dichotomy of dual nationals and their choice of state to represent. Others, however, are more unusual. Yuko Kavaguti is part of the pairs ice skating team of Kavaguti and Smirnov of Russia. Japanese by birth and ethnicity, Yuko had a dream to be an Olympian and reached out to a famed Russian figure skating coach as a teenager in order to pursue that dream. However, the Japanese pairs figure skating program could not provide Yuko with the support or training she needed to pursue her goal and so she moved to Russia to train, became a Russian citizen and competed for Russia at Vancouver. In the process, she was required to renounce her Japanese citizenship and change her name to sound somewhat more Russian. She did all of this because she is, I would argue, a citizen of sport.

Similarly, Allison Reed is a fifteen year-old ice dancer who, along with her partner Otar Japaridze, is competing as part of the Georgian Olympic team at Vancouver. On the surface, there is nothing unusual about this. However, Allison is an American, who still resides in the US and only recently received Georgian citizenship as well. Her two older siblings are also ice dancers and compete for Japan, which is understandable given that their mother is Japanese. Allison, however, competes for Georgia because her ice dancing partner is Georgian.

This phenomenon of switching nationalities is not unique to the Olympic games, however it is particularly noteworthy, and arguably glaring, in the Olympic context. By drawing attention to these examples and to the concept of citizenship of sport I in no way wish to reflect on the propriety of citizenship of sport, other than to assert that it is likely easier to condemn the decisions made by athletes than to try to understand them. My purpose in writing this posting is to propose the existence of the concept of citizenship of sport and to suggest that it is likely to continue on in athletic competitions, especially as interactions between athletes and geography become more common, since, for example, many athletes compete and train in other countries than their country of nationality or citizenship. Citizenship of sport implies a new conception of societal belonging, replacing the traditional emphasis on nationality and national identity with the idea of being a skier, figure skater, or other athlete. It reflects the effort and dedication which athletes put into perfecting their craft, and asserts that the ability to display a life’s work of dedication and, typically, self-sacrifice should not be bounded by national rules and selection processes which might deny the athlete the opportunity to compete and pursue his/her dreams.

Certainly, nationality and citizenship are very personal considerations for anyone, particularly those who grew up dreaming that they would have the chance to compete for their country on a grand international scale such as the Olympic games. Citizenship of sport is no less personal, in that it encompasses the devotion of athletes to their sports and their desire to showcase that devotion, talent and sacrifice to the world. In the majority of cases, traditional concepts of citizenship and nationality co-exist with citizenship of sport to the benefit of the athlete and his/her country. However, it is important to acknowledge the existence of citizenship of sport and that it exists in a separate – though often intersecting – plane than traditional notions of citizenship and nationality.


For information on the athletes mentioned above, see:

http://www.nbcolympics.com/athletes/athlete=2504/bio/index.html
http://www.usatoday.com/sports/olympics/vancouver/figureskating/2010-02-18-ice-dancing_N.htm

Subjectifying the Marine Object

Continuing with a theme from my previous posting, Legal Subjectivity and Artificial Intelligence, I want to touch upon other areas where living objects are given standing or have been increasingly deemed worthy of being treated as subjects under the law. In a recent Times Newspaper article, it is reported that scientists suggest that dolphins should be considered "non-human" persons given their high capacity for intelligence, second only to humans. In so doing, the argument follows that a host of rights would or ought to be conferred upon them. This includes the right not to be used as entertainment which the scientists argue entails a form of imprisonment.

The transition from living object to living subject is far from unique. It is perhaps often related to cultural shifts within a given society that increasingly views certain objects as having some heightened intelligence akin to humans that may warrant an altered (and in some cases - legal) status.

Films have been one source that reflects some of these changed perceptions - if not a source for encouraging a change in perceptions. For instance, in Star Trek IV: The Voyage Home, an alien probe is sent to Earth to communicate with humpback whales, an extinct species within the fictional world of Star Trek that transpires in the 23rd century. Given their extinction, the probe is unable to communicate with any humpback whales and results in the probe potentially destroying the planet (by evaporating the oceans and destroying Earth's atmosphere) - unless it is able to communicate with this specific species. The crew of the former USS Enterprise have to travel back in time to a period in Earth's history (the late 20th century) to acquire two humpback whales and return them back to the future in order to communicate with the probe.

During the course of the film, humpback whales are treated as sympathetic beings, intelligent life forms whose eventual and systematic extinction would lead to humans' own near destruction in the science fictional future. They are shown to have a complex but fascinating form of communication through whale songs. Probably most striking in the film's efforts to demonstrate their sentience and value, Spock is able to communicate with one of the two whales that eventually get transported back to the future. Spock conveys the crew's intentions to the whales and the whales inform him of their willingness to help. Yet Spock find himself circumspect about the morality of treating the whales as objects to be used to save human society, even if in self-defense. He articulates to Jim Kirk: "Admiral, if we were to assume that these whales are ours to do with as we please, we would be as guilty as those who caused their extinction." Furthermore the whales communicate to Spock their unhappiness with how their species has been treated by man and for that matter their specific dissatisfaction with being kept in confinement. All this to suggest a mature consciousness and awareness about their mistreatment as a species entailing both mass slaughter and confinement.

In addition to the demonstration of heightened consciousness and intelligence, what is probably significant in the calls for the elevated status for certain types of non-human life such as whales and dolphins is their perceived docility. Unlike sharks which are viewed as largely a danger to human beings - assisted in no small measure by the Jaws films, and others like Deep Blue Sea - in the modern era at least - whales and dolphins are not represented as posing a potential danger to human society (although see the film Orca).

Lastly, and this is similarly of no little importance, whales and dolphins in probably most contemporary societies are not deemed to be a source of food for human consumption. Given their perceived intelligence, dolphins can be trained for use in military exercises. Furthermore, from a commercial perspective, dolphins and killer whales are used for entertainment purposes. Were such intelligent sea life to occupy the same role as cows, chickens and pigs in the human food chain, we would unlikely see such impassioned and positive representations in popular culture about the necessity to alter the legal status of these non-human species.

Legal Subjectivity and Artificial Intelligence

A recent co-authored article in the Globe and Mail written by Princeton University bioethics professor Peter Singer, and Warsaw-based independent researcher Agata Sagan entitled "When Robots Want Rights" raises some thoughts about the legal status and subjectivity of robots and/or other forms of artificial intelligence. Namely, if and when such "life forms" achieve "consciousness" - that is to say - "consciousness" that human society recognizes as such, what might be the legal, social and/or cultural benchmarks for determining this.

Singer and Sagan express reasonable doubts about whether such artificial life forms would be capable of acquiring independent legal status beyond their present status as mere property even if they were able to demonstrate that they had feelings. This is in part based on the experience of animals who are sentient forms of life that are still considered property. With respect to artificial life forms, there might be questions about whether these feelings were genuine or simply feelings that they are programmed to experience. The authors state:

The hard question, of course, is how we could tell that a robot really was conscious and not just designed to mimic consciousness. Understanding how the robot had been programmed would provide a clue: Did the designers write the code to provide only the appearance of consciousness? If so, we would have no reason to believe that the robot was conscious.

But if the robot was designed to have human-like capacities that might incidentally give rise to consciousness, we would have a good reason to think that it really was conscious. At that point, the movement for robot rights would begin.

In various films, books, television shows and even songs, forms of artificial intelligence have become important characters. How and in what way has the concept of legal autonomy for these life forms filtered through these cultural narratives?

A number of science fiction films have anticipated life in the future involving advanced forms of artificial intelligence achieving a high degree of sentience - that is, the ability to feel and perceive subjectively. In the science fiction realm this means the ability of artificial life forms to achieve a certain degree of human-like qualities and the ability to express, amongst other things, desire and insight. The Star Wars films are a perfect example of droids having a number of emotions, attitudes, personalities, wit and it would seem an ability to experience pain upon destruction or injury. Still they are property of their various respective owners and subject to their owners' abuse and/or benevolence.

According to cognitive scientist Steve Torrance (referred to in Singer and Sagan's article), in the event that such conscientious artificial intelligence life forms are not accepted as part of a moral (read: human) community the possibility for abuse is great. Membership in such communities is often socially and culturally contingent regardless of one's status as human beings, animal or artificial life (one can hardly forget that human beings historically had at one time been deemed property capable of being bought and sold - such individuals were deemed to lack legal autonomy or subjectivity).

Perhaps one of the most striking circumstances of an artificially intelligent life form achieving some independent legal status within the narrative of a film or television show was the character Data in the (now defunct) television series Star Trek: The Next Generation and subsequent films. In the Star Trek world, Data is the property of Starfleet, the military branch of the Federation of Interstellar Planets. In an episode entitled "The Measure of a Man", Data is confronted with being dismantled so that a particular Starfleet officer and scientist, Maddox may learn certain aspects about Data's functioning. Data refuses as he believes that Maddox would not know how to perform the procedure correctly and with sufficient care. This would thus endanger Data's ability to operate in the same capacity when reassembled. After Data is ordered to submit to the dismantling at the orders of Starfleet Command, he ponders whether his resignation would avoid his need to submit to Starfleet's orders. Once again he is informed that as property of Starfleet, he must subject himself to their whims. Subsequently, at the urging of Data's commanding officer and friend, Captain Jean-Luc Picard, a hearing is convened to determine Data's legal status - is he merely property to be disposed of at Starfleet's will or is he a type of life form worthy of being conferred an autonomous legal status?

Substantively, the presiding tribunal officer holds that Data is a sentient being given that he satisfies two out of three criteria for determining sentience. Clearly, Data from his depiction on screen has intelligence, and is self-aware. The tribunal officer further concludes that it is unnecessary to determine whether Data has "consciousness" - the third criteria - as the officer determines that this often refers to a spiritual notion of whether an individual possesses a soul (notice here the limited definition ascribed to consciousness in comparison to the broader understanding expressed by Singer and Sagan). Given that there is no available evidence or judicial standards to assess whether human or other anthropomorphic life (on the show) possess this characteristic, it is deemed inapplicable. Thus, Data's legal status is transformed from a type of chattel to that of an autonomous being.

Concurrent with the arguments about whether Data, as an android is capable of (legally determinable) sentience, there is the asserted notion that to rule against Data's claim for legal autonomy would be tantamount to endorsing slavery. This is raised by the character Guinan, played by (African-American actress) Whoopi Goldberg who tries to persuade Picard (Data's impromptu legal counsel for the purpose of these proceedings) that the slavery of a whole class of such life forms presents a significant moral issue for the Federation that imagines itself as guided by benevolent and progressive notions. A whole host of characters on the show might have equally raised this rather valid point, yet the point is probably made more poignant (from the perspective of viewers) when delivered by Goldberg, as a representative of a class of people within United States society whose ancestors were subjected to slavery and deemed chattel by the United States Supreme Court in Scott v. Sandford, 60 U.S. (19 How.) 393 [Dred Scott]. Guinan becomes a conduit to transmit the shameful legacy of the Dred Scott decision into the discourse surrounding Data's worth as a sentient being. In a sense, Data's trial is a science fictional repudiation of the Supreme Court's decision (although that repudiation in the real world was at least formally performed by the Thirteenth and Fourteenth Amendments).

Data's value as a sentient being is also signaled in the series by his ability to fit into the moral community of the USS Enterprise. Although awkward at times in his quest to be more human, Data is a trusted member of the officer class, who engages in combat as part of and for the benefit of the crew and who also socially intermingles with other officers through poker games and other activities.

As an example of the intersection of law and popular culture, "The Measure of a Man" attempts to address two legal concepts that touch upon Data's legal subjectivity. The first concept is the ability of an artificially intelligent life form to achieve (human-like) sentience - as expressed by a sense of self-awareness and demonstrable intelligence. The second concept is that to deny Data legal autonomy is to in effect legally endorse slavery over a recognized form of life. The latter point of course only has resonance if we agree that Data is indeed sentient. But as Singer would point out (returning to our own temporal and terrestrial space), animals are similarly sentient but are clearly still deemed chattel. What perhaps then carries Data over the threshold into legal autonomy is his membership and participation in the moral community, and more to the point that community's willingess to allow him entry. It probably doesn't hurt that Data in most respects looks like a human.

If artificial intelligence life forms are to graduate from forms of personal property to subjects with legal autonomy, what "The Measure of a Man" suggests is that Data might serve as the minimum normative benchmark for achieving this.