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The technological development has led to the evolution of the robotics. The robots are no more restricted to lifting heavy weights by the robotic arm but are also used for several other sensitive and safety purpose. Medical and pharmaceutical use of the robots has tremendously increased in the recent decade. It has become necessary and the need of the hour to implement the effective regulations on the safety sensitive robots. It is essential to both consider the software and the hardware as the equally essential elements in determining the liability.
The Bad man principle is a very effective tool whose yardsticks can be taken as a model to implement the regulations related to the safety sensitive robots.
This essay will discuss the Holmes Bad man principle with the opinion of different jurists. Asimov’s law has been taken into account while making an analysis of the principle. The essay has also suggested the different parameters of the principle which can be ultised in an effective model law.
Lastly, existing regulations and rules of different countries have been looked into by making an analysis with the principle.
Isaac Asimov in the book ‘Handbook for Robotics’ illustrates the three laws of robotics to differentiate between human morality and technology. The three laws are the essential characteristic feature of robotic inventions. Firstly, the law states that the robot should not cause any harm to a human. Secondly, the robot must essentially obey only a human except for the destructive commands.
Lastly, the existence of the robot vests with itself and should not be in conflicting terms with the first and the second law of Asimov.”
In 1961 the Unimate, a product transferring device and the patented brainchild of Joseph Engelberger, Father of Robotics and George Devol, an American inventor creation led to the evolution of manufacturing industries. The robotic arm by 1961 became the first mass-produced sensitive robot used by the manufacturing factories.? Efforts taken by Joseph Engelberger to expand the development of robotics led to the introduction of the robotic arm to the other parts of the world such as Finland and Japan after 1966. The production capacity of the automobile industry tremendously increased leading to the more production capacity of the industries, creating a market for the inventors to produce more safety sensitive robots. According to the International Federation of Robotics, the Republic of Korea ranks the highest in the robot density in the manufacturing industry since 2010. The Korean government is also committing to being more efficient in robotics by contributing an enormous amount in the corporate R&D centers. Further, robots are also used by the military forces around the world to diffuse bombs and in the operation of other dangerous activities which cause a loss to many people.
Joseph Engelberger, a roboticist in 1989 predicted the use of the robots beyond the industries.” Healthcare and pharmaceutical are the most sensitive sectors to operate sensitive robots. Ethical and philosophical concerns have been discussed by the legal and medical jurists on the use of ‘carebots’. Carebots can be defined as ‘robots designed for use in home, hospital, or other settings to assist in, support, or provide care for sick, disabled, young, elderly, or otherwise vulnerable persons. In 2017 technology Homecare Company Gera and Bloomsbury Al launched UK’s first carebot ‘Martha’ to monitor the regular health and user-friendly with ‘multiple language inferences’s In Japan, different kinds of care robots having distinguishing feature are in existence since 2015. For example Telenoid, a talking robot chipped with a microphone and a camerahelps the elderly patients with dementia to communicate. However, there is a growing trend of Smart sensors in Japan as they are the cheaper option than the care robots. Smart sensor is the technology used mainly to locate the elderly dementia patients.
The development of robotics has changed the dimension of every sector globally. The first ever ‘in-human telerobotic coronary intervention procedure’ has been successfully carried out in India in 2018. The heart surgery was conducted by the doctor while the patient was admitted approximately 20 miles away. The rapid sectoral change may lead to the technological singularity violating the three laws of robotics. Artificial Intelligence (AI) plays an important role in developing the applicability of the safety sensitive robots. Oliver Wendell Holmes gave birth to the ‘Bad Man Principle’ who states that the law and the morality should be read as two different concepts if analysed by the application of Golden rule of interpretation. There are very few legislations on the robots specifically used for the safety sensitive purpose. To avoid technological singularity in the future and to give an effective model of regulation the Bad man principle should be applied.
International Standard Organization (ISO) is an international organization has laid down industrial and commercial global standards. Traditionally, it was recommended by ISO that the industrial robot should operate in an isolated area and without any human interference or intervention. The growth of the technology has led to the ISO amend and evolve its recommendation to suit the technological advancement. The safety sensitive robots with industrial application and safety robots with personal care robots as primary application have different rules laid by ISO. Further, ISO in ‘Safety requirements for personal care robots’ excludes the robots used in industrial use, medical devices and military and personal forces and states that it should be exclusively used for the earthbound personal care robots. Holmes in the Bad man principle has stated that a law should be interpreted by the reason of its existence and the morally driving factor should not be considered in its interpretation.” In the close analysis, the principle has room to a wider interpretation. The ISO has laid down the standards for the safety sensitive robots but the applicability of the Holmes theory in framing the regulations for an effective model on robotics used for sensitive and safety purpose is important to measure the required ethical standards in the robotics engineering.
Holmes devised the principle about a century ago but in the present global scenario, every jurisdiction has realized the importance of it. Many jurists have argued upon the barbaric and apathetic demarcation of the establishment of any connection between law and morality’.2 Holmes suggests that in interpreting the law Bad man principle should be encouraged to ‘dispel a confusion between morality and law’. 13 Maxim Pozdorovkin, a Russian filmmaker in science documentary ‘The truth about killer robots’ questions the liability of the robots if it kills or injures any person. He explains that the robotic wars in science fiction movies soon will become a reality and will be dangerous to mankind. The Asimov’s three laws have been blatantly violated in several instances. In Dallas ‘the Remotec Androx Mark V A-1, manufactured by Northrup Grumman, was purchased by the department of police in 2008′ has been used by the police force to kill a military trained sniper in 2016. The killing of a sniper by the use of a robot has been supported by the New York Police Department. Thereby, violating the Asimov’s second law of robotics that robots should not be the cause of harm to any human. In an instance when a robot injures any human will the programmer of the algorithm can be made liable for the act or the robot?
Professor Charles Fried in analysing Bad man principle with the contract law states that the good man doing any act knows his moral conduct and ‘performs his promise not because of the benefits he might receive, nor because of the costs he might incur, but because, quite simply, performing one’s promise is the right thing to do.” HLA Hart emphasised that morality plays an important role in law to determine the claim and strongly supports the need for moral principles in a democratic state. 15 Interpreting the Holmes Bad man principle with the literal rule of interpretation to understand the contract existing between the firm manufacturing the sensitive robots and potential consumer it can be deduced that the firm is not obligated to work on moral principles. Therefore in such a condition, the firm will not be liable for any harmful acts of the robots. However in a descriptive manner by the application of the golden rule of interpretation, it can be understood that the firm’s action will be based upon the cost-benefit analysis. The firm will act in the best of interest of its customers to ‘to ascertain the soundness of any investment opportunity and provide a basis for making comparisons with other such proposals ’16
Many judges and economic jurists have acknowledged the Homes concept and applied his concept in the interpretation of the contract law and law of torts. In the case of United States v. Carroll Towing Co., while rejecting the standard of the reasonable man and forming a nexus with the Holmes Bad man principle the judges Learned Hand and Harrie B. Chase states that some of the external factors have to be taken into account if the defendant acted negligently in the basis of three variables. The variables can also be taken into account if a corporation producing the sensitive safety robots is alleged to be negligent in manufacturing them. Firstly, the probability that the negligent behavior may cause physical or emotional harm to the people is the essential criteria to constitute the act as a negligent act. The manufactures should anticipate the harm. Secondly, if there is any harm caused then the gravity of the resulting injury’ should determine the negligence. The harm caused should not be minor and shall be irrevocable in nature resulting from the negligence of the manufactures in producing the product. Lastly, the burden of adequate precautions should be taken into account to look into negligence of the act.
The three variables can be taken into account as the model for the regulation of the safety sensitive robots as it is essential to note that the sensitive safety robot comprises of software in the form of algorithms and hardware as the sensors and material used for the body of the robot. The industries are therefore liable to manufacture the sensors used for the carebots and for the military services without any defect. Sensors play a very important role in robots and are used to detect the human presence. The algorithm controls the essential functions of the robots. Thus it is questionable if robot harm or causes death to any person can the manufactures be held liable if the industry had taken all the precautionary measures to avoid the accidents.
There have been many reported accidents caused by the safety sensitive robots used in the factories, medical use and military operations. Robert William is cited to be the first person killed by a robot in 1979 by an industrial accident. The death was caused by a robotic arm weighing one-tonne in Michigan’s Ford Flat Rock plant. When the matter was presented before the jury, it awarded compensation of 10 million dollars to the family members. The lawyer of the deceased worker’s family rightly pointed out that, ‘we don’t go backwards to the kind of notions we had during the industrial revolution that people are expendable. 20 The instances of death by the use of robots for the sensitive and safety purpose is not only limited to the industrial sector but are cases in the medical sector as well. According to the research conducted by the US in 2016 the evolution of robotics has contributed to the medical sector but the overall numbers of injury and
death events per procedure have stayed relatively constant over the years’ and the deaths and injuries has been higher in the events in complex surgical specialties of cardiothoracic and head and neck surgery has been higher than other specialties’ also the device and instrument malfunctions have affected thousands of patients and surgical teams by causing complications and prolonged procedure times. 21 The use of robots in the military has also become a common phenomenon and with the increase in use, there have been reported injuries and death. In 2007 in South Africa, the semi-automatic advanced military robot picked up targets without any human intervention and killed nine soldiers. In technical terminology, if a robot is programmed to develop its own intelligence it is considered of higher value. Thus, in the above instances where the robots were programmed to function without causing harm to any person injures or causes death to the people it can be said that the robots had acquired the intelligence to work on their own.
In developing the model law for the safety sensitive robots, Holmes Bad man principle has to be essentially applied for a logical analysis between the technology laws and giving liberty to the inventors. It is important for the successful interpretation of the principle to understand what the law tries to convey. Holmes has made a demarcation between a bad man and a good man. A good man obeys the law and believes in the obligation to adhere to it. The Bad man principle gives importance to the theory of sanction. Therefore, if any harm or injury caused by the robot there can always a sanction attached to it. David Luban considers ‘the bad man (as) a realistic picture of the usual corporate client of Holmes’s day. 23 The perspective of David Luban in understanding the technicalities associated with the principle should be applied as a model framework for the guidelines on the sensitive safety robots as an economic factor for the industries. One of the equally important factors in the Holmes concept is to understand the required framework of law in safety sensitive robots is the bad man’s view of legal liability as simply a price for noncompliance with the law. 24 Holmes by differentiating between the tax and fine states that the industry would infringe the guidelines and take the liability of any wrongful act by paying damages. Further, it is difficult to make the industries liable for the accidents caused by the robots if the Holmes principle is used as the model for the regulation. Jurists have stated that the Bad man principle is a useful instrument in making regulation for the corporations. People are guided by the moral obligation but a corporation is guided by regulation and lacks ‘internal moral compass’.25 William A. Klein states that only individuals enjoy the benefits, or bear the burdens and the responsibilities, of actions affecting other individuals’.26 Therefore a corporation cannot be held liable for the acts of the robots but it can be questioned who will be held liable for the acts of the robot?
Daniel Fischel in his interpretation of the Holmes Bad man principle states that corporation is legal friction and people voluntarily enter into the contract to benefit each other mutually.?? Since a corporation does not have any moral obligation of its own thus according to the principle if any harm is caused by the robots the liability has to be borne by the individuals working for the organization. A corporation cannot adopt the moral obligation which an individual is guided within the society. The employer and employee relationship subsist by the ‘contract of service’. The employer is liable for the acts of the employees which are within the course of employment in the contract of service. The principle of cost-benefit analysis approach states that a corporation will forecast its profit before implementing any policies which make it unlikely that a corporation will deliberately alter algorithm to harm a person. However critically analysing the Holmes principle he mentions that the law is the witness and external deposit of our moral life.
Its history is the history of the moral development of the race.28 The undertakings if changes the algorithm of the sensitive safety robots to cause mass destruction then according to the Holmes principle the industries should be banned from producing the robots than governed by a higher degree of regulations. Thus, the Bad man principle believes in regulating the laws according to the conduct of the people by fundamentally backing them with morality. Aristotle, the father of the law recognizes the goodness in morality is guided by the prolonged practice.29 Thus, Aristotle believes that morality is not attached to any person naturally since birth but by the habitual practice. Similarly, Holmes theory focuses on the development of morality among individuals. Aristotle’s theory can be found in the Holmes Bad man principle as both the jurists lay emphasis on the importance of sanction in the moral conduct of the person. According to the principle of Holmes and Aristotle, the company’s manufacturing robot should imbibe practices of high moral conduct and the regulations should impose a heavy sanction for the violating the laws.
Robotics and AI are the two separate but interconnected branches of the technology. Robots are devised to work on specified tasks based on the algorithm but the Al is programmed to do tasks as humans. Some of the sensitive safety robots such as the carebots have an inbuilt AI. This possesses a threat to mankind if the algorithm is altered by any unethical means. The companies cannot be held liable for the acts if they had taken all the precautionary measures and the regulations are backed by morality and costbenefit analysis approach. Technological singularity may soon become a reality which may result in some irreversible changes in the society. Although there are very few laws which regulate the robotics and AI yet a model for the framing the effective regulations for the safety sensitive robots is the need of an hour. The Holmes Bad man principle is an effective tool to be utilised for framing the regulation on the sensitive safety robots.
Regulation in robotics and AI in the global perspective, ISO in partnership with International Electrotechnical Commission has established a subcommittee in 2018 known as the SC 42 to devise regulation in Al. They are the only bodies which have taken initiative to globally to make substantial regulation. Contrary to other countries around the world, Japan has legally regulated the robotics and Al. The government of Japan is not only spending in the R&D for the development of Al and robots but is also taking efforts to regulate the industry and make it socially viable. In 2015 the Japanese government with the ‘New Robot Strategy’ strengthened and helped in the collaboration of the academia, industry and the government.30 The government has also organized conferences on AI to analyse the networking issues in Japan. South Korean government has also taken efforts to promote the ethical development of the robot and AI by implementing some national regulations. Jim Dator, Director of the Hawaii Research Center for Futures Studies has predicted the highly dynamic future of South Korea in robotics. He says that the society in Korea is changing the dynamics of the robotics and every household by the year 2020 would have a robot.31 South Korea Robot Ethics Charter, 2007 has incorporated the Asimov’s three laws to give an ethical and socially sound structure to the legislation. Similarly, the European Parliament by Article 225 of TFEU based on the Robolaw project’s reports on robotics passed a Resolution on Civil Law Rules on Robotics.2 The Resolution states that the Asimov’s laws should be core ethical principles of the people associated with the making of the robots. The Parliament has also acknowledged the national laws on robotics of Japan and South Korea. However, the Parliament’s approach on the liability does not fit in with the Holmes Bad man principle.
The Parliament has suggested civil liability and holds the manufactures absolutely liable for any defect in the robot by the Directive on Liability for Defective Products for ‘a causal link between the harmful functioning of the robot and the damage suffered by the
injured party’. However, the liability is not absolute with the manufactures but may be imposed on the users either on the non-absolute liability. The Resolution favors ‘creating a specific legal status for robots’ such as e-person which possess a threat to the mankind as according to the Holmes principles only a person can differentiate between a moral and immoral act and a corporation cannot be held morally liable.34 The morality in a corporation is formed by the moral basis of an association of people. Thus, if a sensitive robot cause harm to any person, the robot having a legal status can be made liable if legislation based on the Resolution is passed by the Commission in future. To clear all ambiguity in the regulation of robots and AI the Bad man principle shall be strictly taken into consideration. The engineers involved in framing the algorithm and in developing the sensors of the hardware materials of the robots shall be held liable for the acts of the robots. A nexus between the Holmes principle and cost-benefit analysis clears that the undertaking will take all precautionary measures and will produce sensitive safety robots which are only beneficial to society. However, if the undertaking acts in contrary it might not face a backlash in the market but also its profits will reduce in addition to sanction.
To conclude, Holmes Bad man principle should be utilised as an effective model for the regulation of the sensitive safety robots. The concept of morality and liability should be interpreted in a similar manner to give effect to the regulation. Any injury or death caused by a robot is not restricted to making an individual liable but the reasons for such an act is also necessarily be considered. The laws of Japan and South Korea in robotics should be acknowledged in EU and UK. The European Parliament’s Civil law Rules on Robotics should be critically analysed by the Commission as there are many loopholes which can be amended by the not giving any legal status to a robot and with the effective implementation of the Bad man principle.
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