AI and the Erosion of Law’s Moral Authority

Over the past decade, artificial intelligence (AI) has begun to assist, augment, and influence judicial and legislative work. At the end of 2023, U.S. Supreme Court Chief Justice John Roberts was “confident” that technological changes would continue to transform the common law and that judicial work would “be significantly affected by AI.” In the legislative realm, there are AI tools devoted exclusively to drafting statutes, and the use of AI by members of the U.S. Congress is now officially sanctioned. These developments have led to a focus on technical and performance-related issues with AI, including those of accuracy and reliability, efficiency, fairness and bias, accountability and transparency, and security and privacy. But a critical issue has been neglected. More than as mere rules and codes of behavior, more than as a morally neutral social fact, we perceive and respond to law—both common law generated by courts and statutory law generated by legislators—as if it possesses, in Professor Donald Regan’s words, a “halo” of morality: law exerts moral authority over us, influences our own moral beliefs, and signals to us what others believe about moral issues. Thus, as the creation of law is increasingly offloaded onto AI, a simple, vital, but heretofore overlooked question must be asked: As AI influences the creation of law, does our perception of law itself change? More specifically, does AI diminish law’s halo? Through a series of original empirical studies, a clear and unequivocal answer emerges. The more AI contributes to law creation (that is, the more extensive judges’ and legislators’ use of AI), the less the halo that forms around a judicial opinion, and the less the moral authority we grant to a statute. In other words, within the judiciary, the more a court uses AI, the less that court’s ruling is perceived and responded to as law. And the same is true for legislatures and the statutes they enact. Law influenced by AI is not law as we know it. The implications of this are resounding and far-reaching: the intertwining of AI and law is leading to fundamental changes in the nature of law and our relation to it, threatening this pillar of society. This Article identifies the problem and sets the stage for critical decisions about the future of artificial legal intelligence.