We are talking about Artificial Intelligence (AI). Everyone is talking about AI. Eh, AI! Or simply: AI.<\/p>\n\n\n\n
But what is AI, really? How present is it in our lives\u2014too much, too little? Where are we heading? Is it something to be feared, or embraced? Have our phones already taken control over us? Man, or machine?<\/p>\n\n\n\n
Not long ago, I passed a shop window with several laptops on display. It reminded me of an older movie scene: a laptop switches on, a human face appears on the screen\u2014eyes, nose, mouth\u2014and then it starts to speak, trying to sell itself to me. After a quick mental sequence, I thought: \u201cThis is it, we\u2019re not far off!\u201d<\/em> A computer initiating a negotiation process with the purpose of concluding a sales contract is precisely an act of negotiating with AI.<\/p>\n\n\n\n But what do we believe\u2014or rather, what do we like to believe\u2014about ourselves? That we are in control, proud guardians of free will (I almost said, like the \u201cfree Dacians\u201d), and that we could never be\u2014quote\u2014\u201ccontrolled.\u201d But is that really so?<\/p>\n\n\n\n At home, I opened Plato\u2019s Dialogues<\/em> with Euthyphro:<\/p>\n\n\n\n \u201cAnd what is the matter about which, if we differ, we shall become enemies and be at enmity with each other? Perhaps you do not see at once; I will tell you. They are the just and unjust, the beautiful and the ugly, the good and the evil. Are these not the things about which, when we differ, and cannot come to a satisfactory decision, we quarrel and become enemies, you and I and all men?\u201d<\/p>\n<\/blockquote>\n\n\n\n And then comes the passage that introduces our theme: \u201cIt is not impossible that the same thing may be loved by the gods and hated by them.\u201d<\/em> \u201cOne will differ from another, and no one will judge the same as another concerning the same matters.\u201d (I know\u2014you expected the Allegory of the Cave when I mentioned Plato!)<\/p>\n\n\n\n From here, the dilemma grows like F\u0103t-Frumos in Romanian fairy tales: in three days and three nights. What determines free will?<\/strong> Can good faith in negotiation be controlled or monitored, given that a computer program may use a spectrum of information far greater than a human? If the mental operations of forming consent are adjustable\u2014even slightly\u2014so that a contract results, do we accept that this legal condition is absent? And if I were defining the algorithms, would I resist the temptation to equip the program with the necessary tools to achieve a well-determined goal?<\/p>\n\n\n\n The answer to the last question is certain: no<\/strong>.<\/p>\n\n\n\n Free will is the human ability to choose a course of action or make a decision through autonomous thinking, generated by internal factors and shaped by external ones, without imposed limitations. It also means \u201cthinking about thinking\u201d<\/em>, extracorporeal perception, the individual\u2019s relation to the whole and vice versa, acceptance of infinity, enlightenment, and illumination.<\/p>\n\n\n\n By contrast, AI means mathematics\u2014algorithms that analyze data to produce results. Take chess: given a position, the program generates possible moves, tests them, assigns scores, and chooses the best one\u2014or the first one \u201cgood enough.\u201d<\/p>\n\n\n\n As John Searle\u2019s Chinese Room<\/em> thought experiment shows, intelligence is not the same as intelligent behavior<\/strong>.<\/p>\n\n\n\n Programs are built with conditions (\u201cifs\u201d). When met, they trigger effects.<\/p>\n\n\n\n Thus, AI cannot make decisions beyond algorithms, nor illogical ones. Humans can.<\/p>\n\n\n\n One might be tempted to attribute AI a semblance of free will, since it evaluates alternatives. But because mathematics is finite and limited, while free will is not, the conclusion is clear: AI does not have free will<\/strong>.<\/p>\n\n\n\n Humans, on the other hand, compare consequences\u2014not just scores.<\/p>\n\n\n\n Point for humans.<\/strong><\/p>\n\n\n\n Parties have the freedom to initiate, conduct, and break off negotiations, as stated in Article 1183(1) of the Civil Code.<\/p>\n\n\n\n A contract is the legal act by which individuals pursue personal interests. Contractual freedom implies the ability to negotiate, compare, and act according to expectations and goals. AI may guide\u2014or even shape\u2014human interests.<\/p>\n\n\n\n Here, the principle of contractual freedom is tested. By design, AI will use static and dynamic techniques to reach predetermined outcomes. Humans may find themselves bound by contracts against their own interest. Think about the last time you bought something online that you didn\u2019t really need.<\/p>\n\n\n\n Even against a skilled negotiator, AI will remain inert compared to humans\u2014it cannot respond to external emotional triggers such as pity, fear, greed, temptation, duty, curiosity, or pride. These instruments, always present in negotiation, create imbalance. The manipulative potential of AI could guide the human interlocutor\u2019s perception.<\/p>\n\n\n\n Thus, the human mind\u2019s ability to decide freely\u2014based solely on self-controlled factors\u2014comes into question, because it is permeable to external inducement. It is difficult to determine how much of a choice is true free will, and how much is programmed stimulus.<\/p>\n\n\n\n Score: 1\u20131.<\/strong><\/p>\n\n\n\n A contract is an agreement, usually negotiated, built on rational and psychological elements of legal consciousness, grounded in the principle of autonomy.<\/p>\n\n\n\n But an offer to contract requires sinalagma<\/em>\u2014the meeting of wills (duorum vel plurium in idem placitum consensus<\/em>). Since computer programs rely on conditions subject to validation, can ethical principles generating genuine consent exist in AI?<\/p>\n\n\n\n True ethical and moral decisions require understanding concepts of good and evil, right and wrong, reasonable and unreasonable. AI lacks psychological experience.<\/p>\n\n\n\n Thus, AI cannot meet the legal requirement under Article 1204 of the Civil Code: consent must be free and informed.<\/strong><\/p>\n\n\n\n Score: 2\u20131 for humans.<\/strong><\/p>\n\n\n\n AI should not be excluded from negotiations. It may be a useful tool in low-value, high-volume contracts or standard-form agreements. In such cases, the definition of when a contract is concluded\u2014Article 1182 Civil Code, at the moment offer meets acceptance\u2014remains valid.<\/p>\n\n\n\n Yet the use of AI raises questions of liability. Does it belong to the contracting party who uses AI as an instrumentum<\/em>? Or to the programmers who wrote the source code? This is a separate issue.<\/p>\n\n\n\n Ultimately, biological intelligence has distinct advantages over artificial intelligence, and most transactions can\u2014and will\u2014be negotiated only by humans.<\/p>\n\n\n\n Av. Paul Vargan<\/strong> Ideas presented at the \u201cLegal Preview of Artificial Intelligence\u201d conference organized by juridice.ro on December 7, 2022.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" We are talking about Artificial Intelligence (AI). Everyone is talking about AI. Eh, AI! Or simply: AI. But what is AI, really? How present is it in our lives\u2014too much, too little? Where are we heading? Is it something to be feared, or embraced? Have our phones already taken control over us? Man, or machine? […]<\/p>\n","protected":false},"author":1,"featured_media":977,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-706","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-articles"],"blocksy_meta":{"styles_descriptor":{"styles":{"desktop":"","tablet":"","mobile":""},"google_fonts":[],"version":6}},"yoast_head":"\nFree Will: A Philosophical Dilemma<\/h3>\n\n\n\n
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Free Will: Who Has It?<\/h3>\n\n\n\n
Freedom to Contract<\/h3>\n\n\n\n
Formation of Consent<\/h3>\n\n\n\n
Conclusion<\/h3>\n\n\n\n
Managing Partner, VARGAN & VARGAN S.C.A.
Coordinator of the MyJustice \u2013 Digital Legal Solutions\u00ae<\/strong> project<\/p>\n\n\n\n