How AI-Driven Norms Render The Separation Thesis Of Legal Positivism Obsolete

Md Ferdows Hossen, Advocate of the Supreme Court of Bangladesh and a Legal Researcher, Dhaka, Bangladesh.

ABSTRACT:

The separation thesis—law should be morality-independent—is the most fundamental element of legal positivism, which dismisses the natural law theory because it entails morality as an intrinsic part of law. However, evolving technology such as artificial intelligence (AI) and deep learning models has entrenched itself in the legal domain and represented a paradigm shift in the way we think about law and order. To mitigate the AI-posed risks, policymakers and industry participants ubiquitously agreed to design machines aligned with moral values, which can produce context-specific morality-intense norms (micro- directives) for the regulated actors. I will investigate throughout this paper how the role morality-based AI-driven norms played in leading to a new form of law—micro-directives—and which, in effect, has rendered the separation thesis of legal positivism obsolete.