They say lawyers could survive a nuclear holocaust: they are built to last.
This is likely because lawyers are a pragmatic and opportunistic species. During a pandemic, for example, you usually see many City law firms switching from mergers and acquisitions to litigation, restructuring and insolvency.
Despite lawyers’ inherent malleability, many claim the field of law is dying because of automation in the industry. Perusal, document creation and research tasks are being ceded to AI and the real effects of these trends are starting to be felt now, with ‘leaner’ firms with alternative business models popping up everywhere.
An argument for the field of law surviving is that there’s always something to fight about and the dispute is usually based on human emotion and intent; especially when it comes to criminal law.
In criminal law for example, there is a concept called ‘Mens Rea’ in Latin, or ‘Guilty Mind’ in English. Mens Rea means that you must prove that the criminal act was committed intentionally. Proving that someone committed the physical act of a crime is usually very difficult. Knowing whether someone had a guilty mind when they committed the crime is even harder. A jury or a judge must attempt to examine the mind of the accused using empathy and judgment, something a machine cannot do, yet.
Human, All Too Human
In the scientific and philosophical world, many believe the human mind is unexaminable, at least to any meaningful extent. An oft cited quandary is the problem of having a human mind examining a human mind, there are observational issues; the observational instrument is fallible. No one has yet invented an instrument to circumvent this.
Funnily enough, this is one of the main arguments against the field of law dying, as the human mind, while fallible, is still the best instrument we have to undertake the task. You can automate research and perusal: but you can’t have machines or algorithms judging the human mind, they’re not smart enough yet, they don’t have the requisite intelligence or ability to deal with the complexities and seemingly random aspects of the mind.
While this technical obstacle is substantial, it is theoretically possible to overcome. As the German philosopher Friedrich Nietzsche wrote in his book ‘Human, All Too Human’ (1878):
‘At the waterfall. When we see a waterfall, we think we see freedom of will and choice in the innumerable turnings, windings, breakings of the waves; but everything is necessary; each movement can be calculated mathematically. Thus it is with human actions; if one were omniscient, one would be able to calculate each individual action in advance, each step in the progress of knowledge, each error, each act of malice.’
Nietzsche argues for a 'deterministic’ view of causality and that the human mind is a deterministic, physical, device. A device, which when properly viewed, despite its apparent waterfall-like chaos, can be predicted.
It appears that Nietzsche may have been on the right track, and we’re beginning to see the instruments of observation that would enable such calculations.
Earlier this month, Professor Sir Martin Hairer, Chair in Probability and Stochastic Analysis (Pure Mathematics) at Imperial College London, won the biggest prize in science, the Breakthrough Prize totaling $3 Million USD. He was awarded the prize for his transformative contributions to the theory of stochastic analysis, particularly the theory of regularity structures in stochastic partial differential equations. Hairer’s branch of mathematics allows us to observe regularity within seemingly random processes like crystal growth, forest fires, stirring a cup of tea and the spread of water on a napkin.
Could it be true, that as Nietzsche intuited, the human mind, although apparently chaotic, is a structured, physical device; something that can be predicted like the spread of water on a napkin?
Just like Nietzsche, Hairer intuited that there was a structure to the seemingly unstructured, but he went one better and developed a mathematical instrument to observe it (Hairer 2020).
“While the exact details of the fluctuation of the stock market and the movement of water atoms are very different, their probabilistic outcome is the same.”
Hairer’s masterwork is so fantastic, so well-realised, and so strange, one fellow mathematician declared that the manuscript must have been downloaded into his brain by a more intelligent alien race.
Discoveries like Hairer’s make one think: what is incalculable? Can we calculate, as Nietzsche says, ‘each error, each act of malice’?
The answer is probably yes, but not quite yet, and probably not in our lifetime.
Although Nietzsche’s determinism and Hairer’s stochastic regularity are a compelling blueprint; the infrastructure (and maths) required to create Nietzche’s ‘omniscient’ viewer at the waterfall are likely beyond current computing power, AI and surveillance capabilities; ignoring for a moment the obvious privacy concerns.
It is likely that the legal profession will lose some of its members to the rise of the machines, at least for mundane tasks. But for at least the medium-term future, legal professionals will still be required for their ‘all too human’ faculties of judgment and empathy, which are yet to be superseded by machines.