The Death of the Legal Author: Authority, Intention, and Law-Creation in the Advent of GenAI

Abstract

Generative artificial intelligence in the form of chatbots based on large language models (LLMs) has taken the world of law by storm. Philosophy of law is struggling to catch up with the theoretical significance of the advent of technological development and the way it may modify traditionally established understanding of legal phenomena, such as law-creation and authority. In this sense, for the most part, heated philosophical debates have circled around a normative question: ‘Should AI create and interpret law?’. Much less attention has been given to a different, albeit previous, question: ‘Can AI create and interpret law?’ That is, is AI capable of producing outputs that can be deemed as ‘law’ (at least, law as we know it)? Can AI be a ‘legal author’? This paper explores this unattended question and endeavours to provide some provisional answers. In the first part, we define legal authority, legal authorship, and legal interpretation and claim that the intention of a determinate authoritative author is often considered the condition of the possibility of creating and interpreting contemporary legal texts. In the second part, we argue that LLM AI, in general, and ChatGPT, in particular, generate legal texts without having any intention. In the third part, we consider the positions of the authors that downplay or even eliminate intention from the discussions about the legal character of prescriptive texts. 4. Finally, we argue that there are good reasons to side with the second group of authors. The ability of agents without intentions, like ChatGPT, to create legal text is an argument in favour of the thesis that law can be created without intention behind the creation and that nonintentional creation can be interpreted to arrive at legal norms.